Posts from February, 2010

Moving Beyond “A Declassification System That Does Not Work”

Executive branch agencies have spent more than a billion dollars on declassification of government records in recent years, but the results have been unsatisfactory, requiring a change in declassification policy and procedure.

“Between 1997 and 2007 the Federal Government acknowledges spending $1.343 billion on declassification,” reported Michael J. Kurtz, Assistant Archivist at the National Archives, in a newly disclosed briefing (pdf).  “This does not include the monies spent by the Intelligence Community on declassification,” an amount that is considered classified.

Despite the enormous expenditure of money, there is a large and growing backlog of records awaiting declassification.

“The Federal government has 408 million pages of historical records that are 25 years old and older at the National Archives and Records Administration that are still classified and an estimated 1.24 billion pages of historical records in agency custody which need to be reviewed and declassified over the next 25 years,” Mr. Kurtz said.

“Without reform in policy and process,” he said, “billions of dollars will be spent perpetuating a declassification system that does not work, while the backlog of records awaiting processing for the open shelves will continue to grow.”

Mr. Kurtz spoke at a November 2009 government conference on records management.  Slides from his presentation were released earlier this month.

Having characterized the problem, Mr. Kurtz went on to describe NARA’s conception of the solution — a National Declassification Center.  The Center, he said, will “enable efficient and effective agency review” while improving quality control and productivity.  The Center was in fact established by President Obama’s executive order 13526 on December 29, 2009 and was announced by the National Archivist on December 30, 2009.  It began initial operations last month.

From an outside perspective, the declassification challenge goes at least one level deeper than what Mr. Kurtz described in his briefing.  The problem is not simply one of inefficiency or a lack of interagency coordination.  It is that agencies are adhering to erroneous classification policies that obstruct and defeat the declassification process.

One convenient example of such a classification error is the secrecy of Intelligence Community declassification costs, as noted by Mr. Kurtz.  Any government employee who seriously believes that the disclosure of declassification spending by intelligence agencies could cause “damage to the national security” needs to be reassigned to a non-national security function.  No more public money should be wasted to enforce such obvious misunderstandings.

The Fundamental Classification Guidance Review prescribed in executive order 13526 (sec. 1.9), which requires a top to bottom “scrub” of all agency classification policies over the next two years, may help to streamline the declassification process by eliminating these kinds of errors in classification judgment.

Some Belated Answers on Electronic Surveillance

The Justice Department has released its responses to questions (pdf) originally posed by the House Judiciary Committee in 2007 about the Department’s views on the legal framework governing electronic surveillance under the amended Foreign Intelligence Surveillance Act.

In questions for the record from a September 18, 2007 hearing, House Committee members probed the potential use of electronic surveillance against U.S. persons, the exclusivity of the Foreign Intelligence Surveillance Act, the claimed scope of independent presidential authority, and the basis for mandating telecommunication carrier immunity.

“If the so-called Terrorist Surveillance Program (TSP) was perfectly legal as has been claimed, why would companies who cooperated in it need immunity?” the Committee asked.  (To protect classified information, among other reasons, the Department responded.)  “Is the President free to disregard any provisions of FISA with which he disagrees?”  (No, not exactly.)  “If an individual in the United States is suspected of working in collusion with persons outside the United States–such that an investigation of one is in effect the investigation of the other–under what circumstances, generally, would you use criminal or other FISA wiretaps?”  (Targeting of persons in the United States can only be done under FISA procedures.)

The Committee hearing volume (pdf) was published in June 2008 without the Justice Department’s answers to these questions, because they were provided to Congress too late to be included in the published record.  A copy of the answers was released last week under the Freedom of Information Act.

Financial Turmoil, Aid to Pakistan, and More from CRS

New reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Government Interventions in Response to Financial Turmoil,” February 1, 2010.

“International Food Aid Programs: Background and Issues,” February 3, 2010.

“Architect of the Capitol: Appointment Process and Current Legislation,” February 16, 2010.

“Ozone Air Quality Standards: EPA’s Proposed January 2010 Revisions,” February 1, 2010.

“The 2009 Asia Pacific Economic Cooperation (APEC) Meetings and U.S. Trade Policy in Asia,” February 4, 2010.

“Direct Overt U.S. Aid and Military Reimbursements to Pakistan, FY2002-FY2011,” February 16, 2010.

“Paraguay: Political and Economic Conditions and U.S. Relations,” February 1, 2010.

Public Input on Open Government Solicited

The Obama Administration’s open government initiative might possibly inspire a transformation in the character of government operations along with an expansion of citizen engagement in policy development.  But in order to succeed, it needs some thoughtful, creative input from members of the public.

All Cabinet level agencies (and a few others) have now prepared Open Government Webpages to document their progress in improving transparency and to solicit public suggestions for how to proceed, including recommendations for development of the Open Government Plans that will define each agency’s transparency program.

What this means is that “openness” is becoming incorporated into the bureaucratic machinery of government.  While executive branch agencies remain constrained by security restrictions, resource limits and other considerations, these rule-driven organizations are being given some new rules to follow.

But the actual contours of the new thrust towards openness — its scope, its content, its urgency — depend significantly on the quality of feedback and support that the initiative receives from the interested public.

Agencies need specific, achievable, actionable suggestions for how to meet their new openness obligations.  Each agency’s openness webpage (linked here) invites readers to “share your ideas” on how to proceed.  There has never been a better time for concerned citizens to help shape the government transparency agenda.  (Actually, there has never been a “government transparency agenda” before.)

And there is a premium on good ideas.  Proposals that are unintelligible, impractical, irrelevant, or inane are effectively endorsements of the status quo because they cannot be implemented.

What kind of ideas would be useful and appropriate?  Those who already interact with each particular agency will be in the best position to say what that agency could and should provide to help advance the Administration’s declared goals of transparency, participation and collaboration.

But one general approach to the issue is to consider the diverse categories of government information that have been removed from public access over the past decade, and to use those as a metaphorical trail of bread crumbs leading back to a more transparent posture.  Restoring access to that missing information could help agencies to reorient their policies and to chart a new direction forward.  And it is clearly within the realm of possibility, since it has already been done.

So, for example, these are some suggestions that we have submitted for agency consideration:

Restore public access to the Los Alamos Technical Report Library.  Until 2002, thousands of unclassified technical reports from Los Alamos National Laboratory dating back half a century and longer were publicly available on the Lab web site.  And then they weren’t.  They constitute an invaluable archive of technological development, historical information, and current scientific research.  A sizable fraction of the sequestered reports have been republished on the Federation of American Scientists website.  But the entire collection, with updated content since 2002, should be restored to the public domain.

Restore public access to orbital element data.  For many years, NASA provided direct public access to so-called Two-Line Element sets that characterize the orbits of the many objects in Earth orbit that are tracked by Air Force surveillance, including active and defunct U.S. and foreign spacecraft, as well as significant debris.  In 2004, open public access was terminated.  That step should be reversed.

Publish the Defense Department telephone directory.  For decades, the Pentagon telephone directory served as a public guide to the complex structure of the Department of Defense, and provided a way to establish direct contact with individual offices and officials.  It was always for sale at the Government Printing Office Bookstore to anyone who cared to buy it.  But in 2001, the DoD telephone directory was designated “for official use only.”  In the interests of “openness, participation, and collaboration,” public access to the DoD directory should be restored.  (Other agencies with national security and foreign policy missions including the Department of Energy and the Department of State already make their personnel directories available online.)

There must be countless other possibilities for moving towards a more open, responsive and accountable government.  Some will be of broad interest, while others may serve a specialized constituency.  Some will be easily achievable, others may require new investments or new modes of operation.  But all of a sudden, “openness” is on the government-wide agenda in a way that it has never been before.  The opportunities are there to be seized.

Military Intelligence Professional Bulletin

Among the untold official resources that have been removed from public access in recent years is the Army’s Military Intelligence Professional Bulletin, a quarterly journal on Army intelligence policy and practice.

We have made a commitment to restoring access to the Bulletin, including current and past issues.  The latest issue (pdf), dated April-June 2009, has just been released to us under the Freedom of Information Act.  It is entitled “Operations in OEF: Afghanistan.”

Possibly annoyed by our repeated FOIA requests for the Bulletin over a period of years, an Army official at Fort Huachuca informed us this week that “the Bulletin will soon be published on public web pages again.”

No U.S. Citizens on CIA Hit Lists

It is useful to be reminded from time to time that not every allegation or published report concerning Central Intelligence Agency operations is necessarily true.

A front-page story in the Washington Post on January 27 included the remarkable statement that “Both the CIA and the JSOC [Joint Special Operations Command of the Department of Defense] maintain lists of individuals… whom they seek to kill or capture. The JSOC list includes three Americans, including [Islamist cleric Anwar al-] Aulaqi, whose name was added late last year. As of several months ago, the CIA list included three U.S. citizens, and an intelligence official said that Aulaqi’s name has now been added.”

But at least the part about the CIA list turns out to be unfounded.

“The article referred incorrectly to the presence of U.S. citizens on a CIA list of people the agency seeks to kill or capture,” the Washington Post said in a correction published in the February 12 edition.  “After The Post’s report was published, a source said that a statement the source made about the CIA list was misunderstood. Additional reporting produced no independent confirmation of the original report, and a CIA spokesman said that The Post’s account of the list was incorrect. The military’s Joint Special Operations Command maintains a target list that includes several Americans. In recent weeks, U.S. officials have said that the government is prepared to kill U.S. citizens who are believed to be involved in terrorist activities that threaten Americans.”

The correction has been appended to the online version of the article.

On February 3, Director of National Intelligence Dennis C. Blair testified to his view that U.S. government agencies may use lethal force against U.S. citizens who are involved in terrorist activities.  “We don’t target people for free speech,” he said. “We target them for taking action that threatens Americans.”

“I’m actually a little bit surprised you went this far in open session,” said Rep. Pete Hoekstra (R-MI) at the hearing of the House Intelligence Committee.

“The reason I went this far in open session,” replied DNI Blair, “is I just don’t want other Americans who are watching to think that we are careless about endangering — in fact, we’re not careless about endangering lives at all, but we especially are not careless about endangering American lives as we try to carry out the policies to protect most of the country. And I think we ought to go into details in closed session.”

 

Senate Holds, Filibusters, and the “Nuclear” Option

Last week, Sen. Richard Shelby (R-AL) placed a “hold” on all of the Obama Administration nominations that are pending before the Senate, thereby preventing a vote on their confirmation.  There are said to be at least 70 such nominations awaiting Senate action, including those of several senior defense and intelligence officials.  Sen. Shelby, a man of flexible principles who has served as both a Democrat and a Republican, reportedly adopted the blanket holds in an attempt to compel the Administration to award certain defense contracts to his home state of Alabama.

Shelby’s action is “outlandish,” said Senate Majority Leader Harry Reid (D-NV) on the Senate floor last Thursday.  But that was as far as he was prepared to go, or perhaps farther than he intended to go.  Striking a tactical retreat, he immediately added: “I can’t imagine this is the right thing to do.”

The new obstructionism has the potential to cripple the U.S. government, warned Paul Krugman today in the New York Times, and to do so in a particularly pointless and humiliating way:  “Instead of re-enacting the decline and fall of Rome, we’re re-enacting the dissolution of 18th-century Poland,” he wrote.

Confronted with rampant irresponsibility and procedural abuse, the White House and the Majority party are not — or should not be — helpless to respond.  In theory, their options include recess appointments to circumvent the Senate confirmation process, and the so-called “nuclear” option to alter existing Senate procedures.  These alternatives, along with related background, have been usefully described in a series of reports from the Congressional Research Service (all pdf).

“Recess Appointments: Frequently Asked Questions,” updated March 12, 2008.

“‘Entrenchment’ of Senate Procedure and the ‘Nuclear Option’ for Change: Possible Proceedings and Their Implications,” March 28, 2005.

“Cloture Attempts on Nominations,” March 30, 2009.

“‘Holds’ in the Senate,” May 19, 2008.

“Senate Policy on ‘Holds’: Action in the 110th Congress,” March 14, 2008.

“Filibusters and Cloture in the Senate,” March 28, 2003.

“Minority Rights and Senate Procedures,” August 22, 2005.

Update: Late Monday night, Sen. Shelby released most of his holds on pending nominees.

Congressional Profiles

Several recent reports from the Congressional Research Service provide descriptive profiles of the present and past composition of Congress by race, ethnicity, gender, education, religion and occupation (all pdf).

“Membership of the 111th Congress: A Profile,” February 4, 2010.

“Women in the United States Congress: 1917-2009,” December 23, 2009.

“Asian Pacific Americans in the United States Congress,” February 1, 2010.

“African-American Members of the United States Congress: 1870-2009,” February 2, 2010.

Limiting Knowledge in a Democracy

In testimony this week before the Senate Intelligence Committee, Director of National Intelligence Dennis C. Blair declared unequivocally that Al Qaeda would attempt to attack the United States within the next six months.  “The priority is certain, I would say,” he told the Committee.

This recalls nothing so much as the startling August 6, 2001 item in the President’s Daily Brief (PDB) that was entitled “Bin Ladin Determined to Strike in US” (pdf).

But the 2001 warning to President Bush was classified at the highest possible level and remained secret for years thereafter, until it was finally dislodged at the insistence of the 9/11 Commission.  In contrast, DNI Blair’s comparable statement was openly presented and was about as public as it could be.

Why should that be so?  Clearly the political circumstances for the two warnings are different, as are the venues in which they were delivered.  But it is also true that the parameters of official secrecy are subject to change.  Yesterday’s top secret might not even qualify as today’s front-page news.

The boundaries of official secrecy will be examined at a conference at the New School in New York City on February 24-26 on “Limiting Knowledge in a Democracy.”

“There is no question that the free access to knowledge and information are the bedrock of all democratic societies, yet no democratic society can function without limits on what can be known, what ought to be kept confidential and what must remain secret,” according to the conference overview. “The tension among these competing ends is ever present and continuously raises questions about the legitimacy of limits. What limits are necessary to safeguard and protect a democratic polity? What limits undermine it?”

I will be speaking on February 26 on “National Security Secrecy: How the Limits Change.”