Posts from September, 2009

Draft Order Would Set New Limits on Classification

“No information may remain classified indefinitely,” according to a draft of an Obama Administration executive order on national security classification policy.

As a statement of principle, this may seem tame and self-evident.  But until now, no Administration has been willing to make such a categorical statement about the temporal limits of national security secrecy, and it may have significant policy consequences.

An August 4 draft of the executive order (pdf) was prepared by an interagency task force in response to a May 27 memorandum from the President.  The draft is still subject to revision, and has not yet been formally transmitted to the White House for review and approval.  Release of the “highly deliberative draft” executive order was specifically denied by National Security Advisory Gen. James L. Jones in a September 2, 2009 letter (pdf).  But a copy was obtained by Secrecy News.  Some aspects of the draft order were previously reported by Bill Gertz in the Washington Times on September 24.

The draft order, which does not represent anything like a transformation of the existing secrecy system, nevertheless has some valuable and innovative features, as well as some disappointing omissions, and a few retrograde steps.  See this side-by-side comparison (pdf) between the August 2009 draft and the current executive order.

The draft order states (section 3.3g) that all records are to be automatically declassified no more than 50 years from the date of origin, with the sole exception of records that would identify a confidential human intelligence source.  And even such intelligence records must be declassified no more than 75 years from the date of origin, with no exceptions.  This is something new.  An existing requirement for “automatic declassification” at 25 years would remain in place, but at the 25 year point there are still nine expansive exemptions to declassification.  Under the new policy, the exemptions would diminish over time and then disappear altogether.

The draft would require a “Fundamental Classification Guidance Review,” involving a continuing review of all agency classification guides in order “to identify classified information that no longer requires protection and can be declassified” (section 1.9).  This is a version of a proposal advanced by Secrecy News (e.g., here and here), and among all of the potential changes to the executive order, it was our top priority.  If it worked, the fundamental review would introduce a dynamic new element of self-correction into the classification process.

A National Declassification Center would be established to facilitate interagency review of historical records and to resolve quality control issues, presumably leading to more complete and expeditious access to such declassified records (section 3.7).

Other constructive if not bold steps include:  new requirements for training of classification officials in avoiding overclassification;  a requirement to identify by name those who derivatively classify information originally classified by others in order to improve accountability;  a higher threshold for reclassification of declassified information;  provisions for review of previously granted exemptions of file series from 25 year automatic declassification.

On the less constructive side, the draft order affirms that “no agency may declassify information that originated in another agency… without the consent of the originating agency” (section 3.1f).  This reinforces a cherished view that agencies “own” the information they produce, and that they retain control over its release and dissemination.  It is arguably the single most profound conceptual flaw in the classification system, and it immeasurably complicates the declassification and disclosure process.  Even the new National Declassification Center will not possess unilateral authority to declassify information, but will only provide “timely and appropriate processing of referrals” from one agency to another.

The draft order does not make any provision for a “declassification database” that would offer easily accessible electronic versions of declassified records, or at least bibliographic data on exactly what has been declassified.

The draft does not provide enhanced oversight or declassification authority to the Information Security Oversight Office.

The draft would perpetuate the veto authority that was granted to the CIA by the Bush Administration over declassification decisions made by the Interagency Security Classification Appeals Panel, but it would transfer that authority from the CIA to the Director of National Intelligence.  CIA’s seat on the interagency Panel would be reassigned to the DNI.

Beyond the ongoing battles over parochial agency interests that are at stake in the new draft, there seems to be a growing sense that the existing secrecy system, even if it is to be buffed and polished one more time, has finally reached obsolescence.

“As soon as we complete our revision of the existing Order,” wrote Gen. Jones on September 2, “I plan to begin discussions… about a more fundamental transformation of the security classification system.”

Govt Defends Use of State Secrets Privilege

The government’s assertion of the state secrets privilege in a pending lawsuit brought by a former Drug Enforcement Administration agent will not be affected by the new Attorney General policy limiting the use of the privilege, the Justice Department said last week, because it is already in compliance with the new policy.

In a September 24 appellate brief (pdf) in the case of Horn v. Huddle, Justice Department attorneys urged an appeals court to overturn a lower court ruling that would authorize the parties in the lawsuit to disclose classified information to their attorneys. The Department also defended its use of the state secrets privilege.

An August 26 ruling in the case held that the parties’ counsel had a “need to know” the classified information possessed by their clients, and the court therefore directed the government to authorize the sharing of that information.

The government immediately objected. “The district court’s extraordinary order — compelling the government to grant security clearances and to authorize disclosure of classified national security information to private counsel… — unnecessarily usurps the Executive Branch’s authority and responsibility to protect from disclosure classified national security information as to which the state secrets privilege has been invoked,” the government argued in its September 24 brief.

The government also declared that the Attorney General’s new policy limiting the use of the state secrets privilege, which takes effect on October 1, would have no impact on the present case.

“The assertion of the privilege in this case satisfies the standards in the new policy concerning the applicable legal standards, narrow tailoring, and limitations on the assertion of the privilege. Moreover, the privilege as invoked in this case has been carefully reviewed by senior Department of Justice officials, who have determined that invocation of the privilege in this litigation is warranted,” the government brief stated.

A Problematic New Policy on State Secrets

The Department of Justice yesterday released its long-awaited new policy on the state secrets privilege, which the government uses in litigation to withhold evidence when it believes that disclosure would harm national security.  The new policy, presented in a memorandum from the Attorney General, includes procedural and substantive changes to current practice.  But it reserves decisions over the exercise of the privilege to the executive branch, and it appears to have garbled its treatment of judicial review.

See “Policies and Procedures Governing Invocation of the State Secrets Privilege” (pdf), memorandum from the Attorney General, September 23.

The new policy specifies that the use of the state secrets privilege must be supported by an evidentiary record that justifies its use and demonstrates that it is necessary in order to avoid “significant harm” to the national security.  A recommendation to invoke the privilege must be reviewed by senior Justice Department officials, and approved by the Attorney General.  The policy also provides for Inspector General review of claims of government wrongdoing when adjudication of those claims is prevented by the privilege.

Collectively, these measures “will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible,” said Attorney General Eric Holder.

Perhaps unsurprisingly, the new policy, which will take effect on October 1, would preserve executive branch discretion over the use of the state secrets privilege.

More surprisingly, the policy seems to have fumbled the question of judicial review.  A Justice Department news release about the Attorney General’s memorandum declared promisingly that “in order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence [justifying the privilege] to the court for review.”

But strangely, the memorandum itself says no such thing (as noted by Bill Leonard).  Questioned about the discrepancy, a Justice Department official said yesterday that the intent to submit the evidentiary record to the court for review, though left unstated by the Attorney General, was “a necessary inference” and he said that it would be done “in every case.”  Maybe so.

Internal executive branch procedures to limit official secrecy are not inherently futile or self-serving.  The Interagency Security Classification Appeals Panel, an executive branch body which reviews appeals of mandatory declassification review requests that were denied, has actually been more effective than any court in combating overclassification.  To the surprise of everyone involved, it has overturned the classification of information in a majority of the cases presented to it since 1996.

More often, however, independent review from outside the executive branch plays an essential role in identifying and reconciling competing interests in secrecy and disclosure.

In a practice that is closely analogous to the new state secrets policy, the Justice Department is supposed to conduct its own evaluation of agency denials of Freedom of Information Act requests and to defend agencies in court only when the denied information is clearly exempt from disclosure under FOIA.  If such evaluations were reliably performed, and if only proper agency denials of FOIA requests were ever defended, then the government should never lose a FOIA case.  Yet we know that that is not what happens.  Courts rule against the government in FOIA cases with some regularity, despite the fact that the Justice Department says it only supports cases where the government position is the legally “correct” one.

In the same way, and for the same reason, the executive branch cannot reasonably be expected to serve as the sole and final arbiter of the proper use of the state secrets privilege.

“While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us’,” said Sen. Russ Feingold (D-WI)  “Independent court review of the government’s use of the state secrets privilege is essential.  I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

Iraqi Civilian Casualties, and More from CRS

Noteworthy new reports from the Congressional Research Service include the following (all pdf).

“Iraqi Civilian, Police, and Security Forces Casualty Statistics,” September 17, 2009.

“Iran’s Nuclear Program: Status,” September 18, 2009.

“Military Recruitment on High School and College Campuses: A Policy and Legal Analysis,” September 22, 2009.

“The Second Amendment and Incorporation: An Overview of Recent Appellate Cases,” September 21, 2009.

“Legal Standing Under the First Amendment’s Establishment Clause,” September 15, 2009.

Brazil Book on Nuclear Weapons Draws Scrutiny

A book published this year in Brazil on “The Physics of Nuclear Explosives” prompted concerns at the International Atomic Energy Agency (IAEA) that it revealed classified nuclear weapons design information and that it might signify a renewed interest by Brazil in developing such weapons.  The U.S. Government also requested further details on the matter, the Brazilian press reported.

According to the Jornal do Brasil, which first disclosed the controversy on September 6, the IAEA “wanted the book to be recalled” and demanded more information on the author’s work.  The government of Brazil refused to censor the book and rejected what it described as IAEA interference.

“The Physics of Nuclear Explosives” (“A Física dos Explosivos Nucleares”) by Dalton E.G. Barroso provides a rather comprehensive account of the physical principles involved in nuclear detonations, including both fission and fusion weapons.  There are chapters on reactor physics, radiation hydrodynamics, dynamic compression of solids, inertial confinement fusion, and more.  Most of this information is already freely available to those who care to search for it.  But the author has broken new ground in presenting the results of his numerical simulations of nuclear detonations and characterizations of particular weapons, such as the W-87 warhead.

“One presumes that many of the specific results presented here have never been published in the open scientific literature,” he wrote in the Preface to the book.  “However, such results are based on well-known physical and mathematical models.”

Far from implying that Brazil may have a clandestine nuclear weapons program, Brazilian Defense Minister Nelson Jobim said that the absence of official secrecy surrounding the book demonstrated that the opposite was the case.  “The mere possibility of publishing this work in Brazil, and the material’s free circulation, serve as eloquent proof of the non-existence of an unauthorized nuclear program in the country.”

Dr. Barroso made the same point to Secrecy News.  “My research is academic and has only scientific interest, for if it is not so, how could my book be published?”

“I think the IAEA reaction was premature and exaggerated,” he said by email.  “There are no data in the book that were obtained in any kind of experiments or that were passed to me in secret.”

“A Física dos Explosivos Nucleares” by Dalton E.G. Barroso, now in its second edition, was published by Livraria da Física (439 pages, 2009, in Portuguese).

Open Source Center Views Brazil Nuclear Programs

Brazil’s nuclear energy research programs and facilities are described in two recent publications of the DNI Open Source Center.  These documents have not been approved for public release, but copies were obtained by Secrecy News.

“Brazil — Survey of Nuclear Agencies, Facilities” (pdf), February 9, 2009.

“Brazil — Websites, Online Publications Seek to Inform Public on Nuclear Activities” (pdf), August 5, 2009.

DNI Announces $75 Billion Intelligence Budget

At a media roundtable last March 26 (pdf), Director of National Intelligence Dennis C. Blair said that “I see my job as making sure that out of this almost 100,000 people and $45 billion that we spend, we get the absolute best intelligence to the President.”

But speaking to reporters yesterday (pdf) about the release of the new National Intelligence Strategy, he said “we’re talking about the very important business of a blueprint to run this 200,000-person, $75 billion national enterprise in intelligence.”

Despite these disparate accounts, the U.S. intelligence community did not double in size over the past six months, nor did it receive a new injection of $30 billion in funds.  Rather, the DNI was describing a consolidated budget for both the National Intelligence Program (NIP), which supports national policymakers, and the Military Intelligence Program (MIP), which supports military operations and activities.  See “Secretive spending on U.S. intelligence disclosed” by Adam Entous, Reuters, September 15.

While the NIP budget has been disclosed for the last two years ($43.5 billion in 2007, $47.5 billion in 2008), an official figure for the MIP had not previously been released (although it is not formally classified, an ODNI spokesman told Spencer Ackerman of the Washington Independent).

“This old distinction between military and non-military intelligence is no longer relevant,” DNI Blair said yesterday. “The problems that we face in the world have strong military, diplomatic, economic and other aspects that all work together and need to be supported by an interlocked and interweaving set of intelligence activities.”

However, the distinction between military and non-military intelligence remains significant in policy and budgetary terms, because while the DNI leads the National Intelligence Program, the Military Intelligence Program is directed by the Secretary of Defense.

Among other things, the new budget disclosure reveals that military intelligence spending has kept pace with the dramatic increase in national intelligence spending since 9/11.

When the budget for tactical military intelligence was inadvertently disclosed in a congressional document in 1994, it was $10.4 billion, at a time when the national intelligence budget was $16.3 billion (“Congress Mistakenly Publishes Intelligence Budget,” Secrecy & Government Bulletin, number 41, November 1994).  Since that time, spending in both categories has remained roughly proportional, as both have nearly tripled in size.

For all of his new budgetary candor, the DNI’s budget classification policies are incoherent and poorly justified.  As recently as this year, the ODNI said that the 2006 budget for the National Intelligence Program must stay classified, even though the 2007 and 2008 budget figures had already been declassified and released.  (“ODNI Denies Release of 2006 Intelligence Budget Figure,” Secrecy News, January 14, 2009).

Various Resources

U.S. military commanders “are responsible for the maintenance of the health of their commands to ensure mission accomplishment in the event of CBRN [chemical, biological, radiological, or nuclear] attacks,” a new Army Field Manual advises, while noting that “medical planners can expect, as a minimum, 10 to 20 percent casualties within a division-sized force that has experienced a nuclear strike.”  See “Multiservice Tactics, Techniques, and Procedures for Health Service Support in a Chemical, Biological, Radiological, and Nuclear Environment” (pdf), U.S. Army Field Manual 4-02.7, July 2009.

Among those countries that are “known to possess” nuclear weapons, the new Field Manual lists Israel (at page I-4), although neither Israel nor the United States formally acknowledge such possession.  This is the second time in ten months that a Pentagon publication has cited Israel as a nuclear weapons state, observed Amir Oren in Haaretz on September 13.  A similar reference appeared in the 2008 Joint Operational Environment study.  (“Israel as a Nuclear Power,” Secrecy News, March 17, 2009).

Iranian scientists have published a prodigious amount of research in nuclear science and technology in the open literature.  A bibliography of such publications is available in a newly updated 195-page compilation (pdf) prepared by Mark Gorwitz.

The Congressional Research Service has prepared an updated summary report on “U.S. Arms Sales to Pakistan,” with background on recent weapons transactions and their rationale.

Hayden Named to Public Interest Declass Board

If one were searching for an individual to represent the public interest in promoting declassification of government records, the first name that came to mind would probably not be Michael V. Hayden, the former director of the National Security Agency and the Central Intelligence Agency.  But improbable as it may seem, he is the latest appointee to the Public Interest Declassification Board (PIDB), an official body that advises the President on declassification policies, priorities and potential reforms.

General Hayden’s appointment to the PIDB by Senate Republican Leader Sen. Mitch McConnell (R-KY) was revealed in the September 8 Congressional Record.

A professional background in national security matters is of course not a disqualification for participation in classification policy debates (and several former intelligence community officials are already represented on the nine-member PIDB).  In fact, such professionals often possess an unusually clear understanding of the specific failings of the classification system and of the urgency of correcting it.  Few if any outside critics have developed a more severe critique of the classification system than J. William Leonard, for example, the former director of the Information Security Oversight Office, who has called for a ninety percent reduction in classification activity.

But General Hayden is not well known as a classification critic or a proponent of declassification.  As NSA and CIA Director he was integral to the practice of classification in its latest and most decadent phase.  When the late Senator Daniel P. Moynihan conceived of a Public Interest Declassification Board a decade ago, he would not have imagined that the national security classification system might be employed by a present-day U.S. Administration to help circumvent laws against warrantless surveillance or torture.  And yet here we are.

In fairness, Gen. Hayden has not been blind to classification abuse.  “I do think we overclassify,” he told Sen. Ron Wyden at his May 18, 2006 confirmation hearing, “and I think it’s because we’ve got bad habits.”  (They are depraved, so we are deprived.)

And in a June 2007 speech to the Society for Historians of American Foreign Relations, Gen. Hayden celebrated CIA’s declassification activities.  “In our robust democracy, people want and deserve to know more about the government agencies they pay for and that exist to serve them, even the secret ones. We work for and serve the interests of the American people. When the protection of information is no longer required, we owe it to our fellow citizens to disclose that information,” he said.

Meanwhile, the Public Interest Declassification Board that General Hayden will now join is poised to play an increasingly significant role.  In a September 2 letter (pdf) to Patrice McDermott of Openthegovernment.org, National Security Advisor Gen. James L. Jones said that he intended to task the Board to help develop a substantially new classification system, once the more limited changes to the current executive order on classification are finalized.

“As soon as we complete our revision of the existing Order, I plan to begin discussions with the Board about a more fundamental transformation of the security classification system,” Gen. Jones wrote.

Qui Tam, Tree Planting, and More from CRS

The “qui tam” statutes (such as the False Claims Act) that enable members of the public to file lawsuits on behalf of the government and to seek financial penalties have been “reviled… as a breeding ground for viperous vermin and parasites,” observes a new report from the Congressional Research Service.  But they have also been a uniquely effective instrument for combating fraudulent activity.  See “Qui Tam: The False Claims Act and Related Federal Statutes,” August 6, 2009, and “Qui Tam: An Abbreviated Look at the False Claims Act and Related Federal Statutes,” August 6, 2009.

Other noteworthy new CRS reports obtained by Secrecy News include the following (all pdf).

“Conventional Arms Transfers to Developing Nations, 2001-2008,” September 4, 2009 (first reported by the New York Times on September 7).

“North Korea: Economic Leverage and Policy Analysis,” August 14, 2009.

“‘Don’t Ask, Don’t Tell’: A Legal Analysis,” September 2, 2009 (first reported by the Associated Press on September 9).

“U.S. Tree Planting for Carbon Sequestration,” May 4, 2009.

“Carbon Sequestration in Forests,” August 6, 2009.

“Iran’s Nuclear Program: Status,” August 11, 2009.