Posts from May, 2009

Obama Announces Review of Classification Policies

“We are launching a review of current policies by all of those agencies responsible for the classification of documents to determine where reforms are possible,” announced President Obama in a speech at the National Archives today.

While the President has spoken broadly before of the need for greater transparency, this is the new Administration’s first public approach to reform of the national security classification system.  A focused review of individual agency classification policies, many of which have not been revised or updated for years, has the potential to eliminate obsolete classification requirements, and to minimize overclassification.  (See “Overcoming Overclassification,” Secrecy News, September 16, 2008.)

“I ran for President promising transparency, and I meant what I said,” Obama said. “That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book.”

“I will never abandon – and I will vigorously defend – the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts.”

The President also indicated that an ongoing review of the use of the state secrets privilege was “nearing completion.”

“On all of these matters related to the disclosure of sensitive information, I wish I could say that there is a simple formula. But there is not. These are tough calls involving competing concerns, and they require a surgical approach.”

“But the common thread that runs through all of my decisions is simple: we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don’t know, and when I release something publicly or keep something secret, I will tell you why,” he said.

White House Solicits Ideas for Transparency

The White House today solicited public recommendations for greater openness in government.

“Members of the public are invited to participate in the process of developing recommendations [by] offering comments, ideas, and proposals about possible initiatives and about how to increase openness and transparency in government,” according to a notice published in the Federal Register today.

“Comments may address law, policy, technology, culture, and practice on issues such as: What government information should be more readily available on-line or more easily searched? How might the operations of government be made more transparent and accountable?… What alternative models exist to improve the quality of decisionmaking and increase opportunities for citizen participation?  What are the limitations to transparency?”  Comments are due by June 19.

This request for public comments itself already represents an advance over past practice, because it is based on an official consensus in favor of increasing openness.  “Transparency promotes accountability and provides information for citizens about what their Government is doing,” President Obama stated on January 21.  “Public engagement enhances the Government’s effectiveness and improves the quality of its decisions,” he said.

These principles, having been affirmed by the President, no longer need to be debated.  Instead, the question is how to realize them in practice.

Today’s Federal Register notice was signed by John P. Holdren, the White House science adviser.  Holdren was formerly a chairman of the Federation of American Scientists and was also, years ago, a professor of mine at UC Berkeley.

Selected Congressional Hearing Volumes

Noteworthy new congressional hearing records on intelligence, national security or secrecy that have been published in the last month or two include the following.

“Congressional Oversight of Intelligence Activities,”
hearing before the Senate Intelligence Committee, November 13, 2007.

“Implementation of the Office of Government Information Services,” hearing before the House Committee on Oversight and Government Reform, September 17, 2008.

“FISA for the 21st Century” (pdf), hearing before the Senate Judiciary Committee, July 26, 2006 (includes over a hundred questions and answers for the record from OLC head Steven G. Bradbury [pdf], among others).

“Sunshine in the Courtroom Act of 2007″ (pdf), hearing before the House Judiciary Committee, September 27, 2007.

“From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part III)” (pdf), hearing before the House Judiciary Committee, June 26, 2008 (including testimony by David S. Addington and John Yoo).

“From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part IV),” hearing before the House Judiciary Committee, July 15, 2008 (including testimony by Douglas Feith).

Guide to Chilean Defense Websites

The Open Source Center of the U.S. Intelligence Community has prepared a descriptive catalog of websites (pdf) concerning the defense and security of Chile.

“The Chilean defense establishment consists of military and civilian institutions, many of which have their own websites featuring institutional services, news, and academic reports,” the OSC report explains. “Many academic contributions on defense issues are featured on these sites. Defense blogs and some related websites also carry unofficial information on Chilean military issues. A few sensitive defense institutions, including intelligence services and related industries, do not have their own websites. An appendix [to the report] explains the Chilean defense structure.”

Like many other OSC products, the unclassified, 12-page report has not been approved for public release.  But a copy was obtained by Secrecy News.  See “Guide to Selected Chilean Defense Websites,” Open Source Center Media Aid, 29 April 2009.

Two New Judges for the FISA Court

The Chief Justice of the U.S. Supreme Court has appointed two new judges to the eleven-member Foreign Intelligence Surveillance Court, a spokesman for the Court said today.

Judge Thomas F. Hogan of the D.C. District Court and Judge Susan Webber Wright of the Eastern District of Arkansas were each appointed to seven-year terms on the Court, expiring May 18, 2016, said spokesman Sheldon Snook.

They replace Judge Robert C. Broomfield and Judge Colleen Kollar-Kotelly, whose terms on the FIS Court expired today.  Judge John D. Bates, who was appointed to the Court in 2006, takes over from Judge Kollar-Kotelly as Presiding Judge of the Court.

The FIS Court reviews government applications for electronic surveillance and physical search of suspected foreign intelligence and terrorist targets under the Foreign Intelligence Surveillance Act of 1978. The current membership of the Foreign Intelligence Surveillance Court may be found here.

FISA Surveillance Down, NSL Requests Up in 2008

During calendar year 2008, the Foreign Intelligence Surveillance Court approved 2,083 applications for authority to conduct electronic surveillance and physical search of suspected foreign intelligence and terrorist targets under the Foreign Intelligence Surveillance Act, according to a new annual report to Congress (pdf) from the Justice Department.  The Court made substantive modifications to two applications and denied one application.

This is a decrease from calendar year 2007 (pdf), when the Court approved 2,370 applications for electronic surveillance and physical search, modified 86 applications, and denied three (and one “in part”).

The new report, transmitted May 14, 2009, also states that in 2008 the FBI made 24,744 “national security letter” (NSL) requests for information concerning 7,225 different United States persons.  In 2007, according to newly revised figures included in the report, the FBI made 16,804 NSL requests pertaining to 4,327 different United States persons.  National security letters are obligatory demands for information or records, comparable to subpoenas but without judicial oversight.  The scope of such instruments was expanded by a provision of the USA Patriot Act.

The Congressional Research Service discussed “Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009″ in a report that was updated March 16, 2009.

Kenneth Bass on Amending FISA

The late Kenneth C. Bass, who helped draft the Foreign Intelligence Surveillance Act of 1978 and who was the first Counsel for Intelligence Policy at the Justice Department, later became a critic of its implementation and a proponent of remedial measures.

In a 1994 congressional hearing, he urged lawmakers to introduce elements of an adversarial process into the FISA Court, such as appointing an advocate for the proposed target, so that judges would have a more complete and nuanced record on which to base their decisions to approve surveillance and physical search.  See “Amending the Foreign Intelligence Surveillance Act” (pdf), hearing before the House Permanent Select Committee on Intelligence, July 14, 1994.

In 2002 testimony, he reiterated this proposal and told a Senate Judiciary Committee hearing on the FISA process that it should also “obtain more information and make it public.”  Neither recommendation was acted upon, and the efficacy of the FISA as a legal constraint upon intelligence surveillance would soon be diminished by the Bush Administration’s circumvention of its procedural requirements.

Kenneth Bass was remembered in “Justice Official Helped Pen Surveillance Act” by Patricia Sullivan, Washington Post, May 2, 2009.

“Laws never prevent lawlessness,” Mr. Bass said at the 1994 hearing.  “But they are designed to check it and give somebody else a second view of what to do with it.”

Kate Martin of the Center for National Security Studies, who also testified at that hearing, told Committee members that Mr. Bass’ proposal for an adversarial review of FISA applications was unobjectionable but that by itself it would not cure the constitutional infirmities of FISA.

“The Constitution is not a perfect information gathering system for the government,” Ms. Martin said.

Energy Department Activities Involving FISA

Although the Department of Energy is not one of the agencies that performs intelligence surveillance or physical search under the Foreign Intelligence Surveillance Act, it does occasionally play a role in providing analytical support to other agencies such as the FBI that do conduct FISA surveillance.

A recent DOE Inspector General report (pdf) noted four cases that were “referred by the FBI [to the Department of Energy Office of Intelligence] for analysis of raw data collected under FISA court orders.”  The report does not specify the nature of the raw data or the reason the four cases were referred to the Energy Department, though one may speculate that the data concerned nuclear weapons-related information rather than, say, novel designs for wind turbines.

No violations of law were found by the Inspector General, but the report said DOE improperly failed to respond to one of the four FBI FISA referrals for more than a year.  See “Letter Report on “Selected Aspects of the Department of Energy’s Activities Involving the Foreign Intelligence Surveillance Act,” DOE Inspector General, May 6, 2009.

Detainee Interrogation: A Road Not Taken

The development of Bush Administration policies on the treatment of suspected terrorist detainees was probed yesterday at a Senate Judiciary Committee subcommittee hearing, which also led to the release of two primary source documents reflecting internal Bush Administration deliberations.

Former State Department Counselor Philip Zelikow described his efforts in 2005-6 to advance a standard that would effectively prohibit “cruel, inhuman, and degrading” treatment of detainees, a standard to which, in theory, the United States was already committed.  But the practice was something different, he said.

“The U.S. government adopted an unprecedented program of cooly calculated dehumanizing abuse and physical torment to extract information,” Mr. Zelikow testified (pdf).  “This was a mistake, perhaps a disastrous one.  It was a collective failure, in which a number of officials and members of Congress (and staffers), of both parties played a part, endorsing a CIA program of physical coercion even after the McCain amendment was passed and after the Hamdan decision.  Precisely because this was a collective failure it is all the more important to comprehend it, and learn from it.”

Mr. Zelikow cited two noteworthy official documents in his testimony, though these were not published on the Judiciary Committee web site.  Copies were obtained by Secrecy News.

A June 2005 memorandum (pdf) prepared by Mr. Zelikow and Gordon R. England, the acting deputy secretary of defense, proposed a comprehensive approach to detention, interrogation and prosecution of suspected terrorists, that the authors said would be compatible with existing legal standards.  But their approach was rejected by Defense Secretary Donald Rumsfeld, Mr. Zelikow recalled in his testimony.  The memorandum was reported in the New York Times (Tim Golden, “Detainee Memo Created Divide in White House,” October 1, 2006) and elsewhere was quoted at length in Angler by Barton Gellman (at pp. 347-349), but the document itself has not been made publicly available until now.  See “Elements of Possible Initiative,” June 12, 2005, marked Sensitive But Unclassified.

A second memorandum, authored by Mr. Zelikow and John Bellinger, offered an alternative legal framework predicated on acceptance of the prohibition against “cruel, inhuman, and degrading” treatment.  See “Detainees – The Need for a Stronger Legal Framework” (pdf), July 2005.

By 2006, the terms of the dispute had shifted.  The Administration affirmed the prohibition against “cruel, inhuman, and degrading” treatment, but then embraced an Office of Legal Counsel argument that said the CIA interrogation program, including water boarding and the rest, did not violate the prohibition.  Zelikow’s February 2006 critique of the OLC interpretation is said to be undergoing declassification review.  Since the classification status of that critique is entirely derivative of the now-declassified OLC memos, its full and prompt declassification is to be expected.

AF Spells Out Use of Intel Contingency Funds

A new Air Force instruction (pdf) describes the use of unvouchered “intelligence contingency funds” which may be spent by the Secretary of the Air Force “for any purpose” in support of the Air Force intelligence mission.

Such funds may be expended, for example, to pay for “plaques, mementos, etc.” to be presented “as gifts or incentive awards to foreign officials.”  Contingency funds may also be used “to fund liaison functions with persons not employed by the US Government if they can assist US Air Force organizations to perform intelligence missions.”  However, “The liaison function must be conducted on a modest basis that complies with socially acceptable behavior.”

See “Intelligence Contingency Funds,” Air Force Instruction 14-101, 30 April 2009.