Posts from December, 2009

Confronting Controlled Unclassified Info

The Obama Administration is expected to provide some new insight this week into its emerging policy on “controlled unclassified information” (CUI), referring to unclassified information that is withheld from disclosure for reasons of law or regulation.

Because of the indiscriminate use of such controls, information is often withheld unnecessarily from the public and information sharing within the government is often needlessly obstructed.

In a neat illustration of the undisciplined use of information controls, the Washington Times reported last week that even though some U.S. Capitol Police documents that were marked “law enforcement sensitive” were inadvertently disclosed, this did not pose any threat to public safety.  That’s because the use of the control marking was “a standard practice,” according to Police officials, rather than a reliable indication that the documents were actually sensitive.

Sgt. Kimberly Schneider of the Capitol Police explained that the “law enforcement sensitive” marking “does not necessarily indicate that the information contained there is such.”  See “Capitol Police Papers Found on Street” by Jim McElhatton, Washington Times, December 7, 2009.

Last August 25, an interagency task force transmitted a report to President Obama that presented recommendations for limiting the use of controls on unclassified information.  The White House is expected to release that report this week, though the issuance of a new CUI policy is still likely to be some months away.

Update: The August 25 Report of the Presidential Task Force on Controlled Unclassified Information has now been released.

Openness Initiative Begins to Take Root

The Obama Administration’s new open government policy has begun to elicit a response from executive branch agencies.  The Department of Defense, the Department of Justice, and other agencies issued news releases yesterday outlining the initial steps they are taking to fulfill the December 8 White House Open Government Directive (pdf).

The White House Office of Science and Technology Policy posted a request for public comment on how to enhance public access to federally-funded science and technology research.  Beginning today, “The Administration is seeking public input on access to publicly-funded research results, such as those that appear in academic and scholarly journal articles. Currently, the National Institutes of Health require that research funded by its grants be made available to the public online at no charge within 12 months of publication. The Administration is seeking views as to whether this policy should be extended to other science agencies and, if so, how it should be implemented.”

Most national security and intelligence agencies, however, met the new Open Government Directive with silence, as if it did not concern them.

But many such agencies maintain unclassified databases that are potentially of great public interest, and that ought to be broadly accessible.  We have nominated two candidates in particular for disclosure under the new open government policy.

First, there is CREST (CIA Records Search Tool), the CIA’s database of declassified historical records.  It contains millions of pages of redacted records that have already been processed for public release.  CREST is available at the National Archives in College Park, MD.  Yet the CIA has refused to publish CREST online, or to release a copy to others so that they could.  Now would be an opportune time to do so.  (See “CREST Leaves Cavity in Public Domain,” Secrecy News, April 6, 2009).

Another major record group that we believe ought to be public are the unclassified reports and analyses of the Director of National Intelligence’s Open Source Center.  This is a slightly more complicated case since many OSC products include copyrighted material that cannot readily be published without permission.  But many other OSC products are purely discursive and analytical and could be published without difficulty if there were a will to do so.  A selection of OSC products that were obtained by Secrecy News may be found here.

Writing on the White House blog yesterday, Special Counsel to the President Norm Eisen and Open Government Initiative Director Beth Noveck offered their view on “Why an Open Government Matters.”

Disclosure of TSA Manual Stirs Leak Anxiety

The inadvertent disclosure of a “sensitive” Transportation Security Administration manual on procedures for screening airline passengers has prompted renewed interest in legal remedies and penalties that may be available to the government to minimize the impact of such unauthorized disclosures.

In a letter (pdf) to the Department of Homeland Security yesterday, several Republican lawmakers asked:  What can be done to prevent the continued publication of such material on non-governmental web sites (such as cryptome.org and wikileaks.org)?

“How has the Department of Homeland Security and the Transportation Security Administration addressed the repeated reposting of this security manual to other websites and what legal action, if any, can be taken to compel its removal?” wrote Reps. Peter T. King (R-NY), Charles W. Dent (R-PA) and Gus M. Bilirakis (R-FL).

“Is the Department considering issuing new regulations pursuant to its authority in section 114 of title 49, United States Code, and are criminal penalties necessary or desirable to ensure such information is not reposted in the future?”

The short answer seems to be that existing legal authorities cannot easily be used to compel the removal of such records from public websites, and that any attempt to do so would likely be counterproductive, and would itself do damage to press freedom and other societal values.

Meanwhile, conservative talk show host Rush Limbaugh yesterday lashed out at the Federation of American Scientists in his own commentary on the TSA Manual disclosure.

“What an unmitigated disaster this is,” he said.  “Every day it’s something, every day is an unmitigated disaster.  ‘The original version of the manual [is] still available online preserved by websites that monitor government secrecy and computer security’ [a quote from the Washington Post], which tells you all you need to know about the motives of these sites, such as the so-called watchdogs at the Federation of American Scientists.”

This is not as gratifying as it might have been, since FAS had nothing to do with the disclosure of the TSA Manual.  In fact, had we been the ones to discover the unredacted Manual, we probably would have refrained from publishing it.

In 2005, the National Security Agency published a tutorial on how to properly redact and publish sensitive documents.  See “Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF” (pdf).

New Directive Would Foster Open Government

In a conscious and far-reaching attempt to change the culture of secrecy that prevails within many government agencies, the Obama Administration today issued a directive (pdf) that orders each federal agency to establish an open government program with mandatory new information disclosure obligations as well as opportunities for public participation.

Moving beyond the familiar rhetoric of openness, the directive imposes substantive new publication requirements, sets deadlines, promotes sharing of best practices, and promises further steps to come.

So, for example, within 45 days each agency is obliged to publish online “at least three high-value data sets” that have not been previously available online.  Within 60 days, each agency must establish a portal for public access to its open government activities, including provision for public feedback and input.  Within 90 days, OMB will issue guidance on the use of new incentives to promote further openness.

The new directive does not extend to classified national security information or controlled unclassified information, both of which are to be addressed in other pending executive orders.  But it does direct agencies to reduce any backlogs in Freedom of Information Act requests “by ten percent each year.”

Significantly, the new open government policy directive did not emerge from the exercise of “checks and balances” by the other branches of government.  Congress did not urge the Administration to promote a culture of openness, much less compel its adoption.  Instead, it is a unilateral executive branch effort, akin in its conception to Energy Secretary Hazel O’Leary’s landmark Openness Initiative of the 1990s, but now extended for the first time to the entire executive branch.

Success is not guaranteed.

The previous Administration used to invoke the theory of “the unitary executive,” which generally holds that all executive branch power and authority is vested in the President.  But the opposite may be closer to the real state of affairs, in the sense that the exercise of presidential authority is dependent on innumerable acts of compliance by scattered officials any of whom can, whether through disobedience or incompetence, frustrate the implementation of policy.  And the more ambitious the proposed change, the more likely it is to encounter resistance.

The directive is also predicated on the existence of a significant number of citizens who are motivated to engage in public policy deliberations and who are capable of doing so. The quality of public comments on the development of the open government directive last summer, which sometimes suffered from digressions into extraneous matters, was not consistently encouraging on that score.

The declared objective of the new directive is “to create an unprecedented and sustained level of openness and accountability in every agency,” and it shows every sign of good faith in attempting to realize that objective.  In any case, given the directive’s well-defined milestones and deadlines, it will soon be clear whether and to what extent the new openness initiative succeeds.

A Radiological Survey of Washington DC

In mid-January 2009, in advance of the inauguration of President Obama, a radiological survey of downtown Washington, DC was conducted at the request of the Secret Service.

No statistically significant man-made radiological activity was detected in the survey.  Typical variations in natural background radiation were found, along with slightly elevated readings at the National World War II Memorial and elsewhere “caused by the building materials containing naturally occurring radioisotopes.”

See “Radiological Survey of Downtown Washington DC for the 2009 Presidential Inauguration” (large pdf), National Nuclear Security Administration, March 2009.

China Has Jobs for Foreign Reporters

At a time when U.S. news organizations are shedding jobs at an alarming rate, the People’s Republic of China has been hiring a growing number of reporters from outside of China.

“Since July of this year, Xinhua’s English-language service– China’s official news service for English-language audiences — has hired several experienced Western journalists to serve as overseas correspondents,” according to a new report (pdf) from the DNI Open Source Center (OSC).

“Following Xinhua’s introduction in 2003 of bylines on items filed in English, OSC has observed that the number of non-Chinese correspondents employed by the news agency has grown to more than 80. Most of these new hires, however, have been non-Western reporters.”

The OSC report has not been approved for public release, but a copy was obtained by Secrecy News.  See “China — Xinhua’s Growing Ranks of ‘Foreign’ Correspondents,” Open Source Center, November 5, 2009.

Another new OSC report notes that state-owned China Central Television has “dropped a number of talk shows and pre-recorded news magazine programs in favor of a heavy focus on live newscasts and news commentaries.”  See “China — Revamped CCTV-News Channel Increases Live Casts, Commentary” (large pdf), November 5, 2009.

CRS Fires a Division Chief

The Director of the Congressional Research Service fired the chief of its Foreign Affairs, Defense and Trade Division after he criticized Obama Administration policy on prosecuting Guantanamo detainees in a Wall Street Journal op-ed last month.

Morris Davis, a former chief prosecutor at Guantanamo who has been at CRS for the past year, argued that current U.S. policy on trying detainees amounted to a double standard.  “The administration must choose,” he wrote in the Journal on November 10. “Either federal courts or military commissions, but not both, for the detainees that deserve to be prosecuted and punished for their past conduct.”

This was too radical a statement for Daniel Mulhollan, the CRS Director, who terminated Mr. Davis effective December 21.  It was a surprising move, for several reasons.  First, Mr. Davis’s op-ed did not identify him as a CRS employee and he was clearly not representing that organization.  To the contrary, he is well-known to have independent standing and expertise to discuss military commissions.  Second, U.S. policy on military commissions is not within the purview of Mr. Davis’s division at CRS and so the possibility that his work there might be biased by his public position would not even arise.

The American Civil Liberties Union was expected to issue a letter today [now available here] urging CRS to reverse its action.  See “Top Congressional Researcher on Afghanistan Fired” by Michael Isikoff, Newsweek Declassified blog, December 3.

Mr. Mulhollan has previously punished some of his organization’s most capable experts for publicly expressing their own professional judgments.  In 2006, a clash between him and Louis Fisher, the former CRS constitutional law expert, led to the departure of the latter, who was quickly hired by the Law Library of Congress.  (“More Turmoil at the Congressional Research Service,” Secrecy News, February 9, 2006.)

New CRS reports not previously made available to the public include the following (both pdf):

“China’s Assistance and Government-Sponsored Investment Activities in Africa, Latin America, and Southeast Asia,” November 25, 2009.

“Venezuela: Issues in the 111th Congress,” November 17, 2009.

Assorted New Military Doctrine

According to a new U.S. Army field manual, when a soldier is about to throw a hand grenade at any enemy target he should normally follow the specified procedures and assume one of five authorized positions (standing, kneeling, etc.). However, “If a Soldier can achieve more distance and accuracy using his own personal style, he should be allowed to do so….”  See “Grenades and Pyrotechnic Signals” (large pdf), U.S. Army Field Manual 3-23.30, October 2009.

Other noteworthy new U.S. military doctrinal publications include the following (all pdf).

“Marine Corps Space Policy,” Marine Corps Order 5400.53, September 28, 2009.

“Joint Urban Operations,” Joint Publication 3-06, November 8, 2009.

“Counterterrorism,” JP 3-26, November 13, 2009.

Government Secrecy in Academia

Government secrecy is becoming an increasingly popular field of inquiry in academic circles, with several upcoming conferences and journals devoted to the subject.

The journal “Research in Social Problems and Public Policy,” edited by Susan L. Maret, has issued a call for papers on “the problem of government secrecy,” including theoretical and comparative treatments.

The Collaboration on Government Secrecy at American University’s Washington College of Law will address “Transparency in the Obama Administration: A First-Year Assessment” on January 20, 2010.  A webcast of a  program last month on “The State of the State Secrets Privilege” is now available here.

A two-day workshop on “Open Government: Defining, Designing, and Sustaining Transparency” will be held at Princeton University on January 21-22, 2010.

The journal “Social Research” will host a conference on “Limiting Knowledge in a Democracy” (in which I will participate) at the New School in New York City on February 24-26, 2010.

Military Commissions vs. Criminal Trials

Many of the procedural safeguards that are provided to a defendant in a criminal trial are not available to those tried in military commissions, or are present in attenuated or modified form.  Thus, for example, military commissions offer no right to a speedy trial and may allow hearsay into evidence.

These and numerous other distinctions between the two judicial frameworks were helpfully tabulated in a new report from the Congressional Research Service.  See “Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court,” November 19, 2009.  Related information on the rights of detainees in a criminal prosecution was discussed in “Closing the Guantanamo Detention Center: Legal Issues,” updated November 17, 2009.