Posts from November, 2010

A Good Leak: DoJ Report on History of Nazi-Hunting

In a revealing failure of Administration commitments to transparency, an official history of the U.S. government’s post-war pursuit of (or sometimes accommodation with) Nazi war criminals was obtained by the New York Times after the Department of Justice refused to release an unexpurgated version under the Freedom of Information Act.

The secret history was reported in “Nazis Were Given ‘Safe Haven’ in U.S., Report Says” by Eric Lichtblau in the New York Times, November 14.  The Times also posted the complete text of the document online.

A side-by-side review of the leaked and the redacted versions compels the conclusion that the Department of Justice exceeded its authority to withhold information from the public, and violated the disclosure requirements of the Freedom of Information Act. “Now that we can compare the redacted document with the complete text of the original report, it is clear that the Justice Department is withholding information without legal justification,” said attorney David Sobel, who represented the National Security Archive in its request for the document. “For an administration — and an Attorney General — supposedly committed to an ‘unprecedented’ level of transparency, this case provides a troubling example of how far the reality is from the rhetoric.”

But in a paradigmatic example of “a good leak” that advances the public interest, the unauthorized disclosure of the document succeeded where normal disclosure procedures failed.

Senate Report on the New START Treaty

The rationale for the New START Treaty between the United States and Russia on reductions in nuclear weapons was addressed at length in an October 1 report from the Senate Foreign Relations Committee.  On September 16, the Committee recommended ratification of the Treaty, which awaits consideration by the full Senate.

The 141-page Committee report (large pdf) explained the terms of the Treaty, its verification, its implications for missile defense and prompt global strike, and related subjects of concern or controversy, with dissenting views from opponents.  See “Treaty with Russia on Measures for Further Reduction and Limitation of Strategic Offensive Arms (The New START Treaty),” Senate Foreign Relations Committee (SFRC) executive report 111-6, October 1.

The Senate Committee action was welcomed by many Russian officials as a harbinger of possible Treaty ratification by the end of this year. But other senior Russian officials criticized the Committee’s handling of the Treaty, as noted in a recently updated report (pdf) from the Congressional Research Service:

“On November 3, 2010,… State Duma International Affairs Committee Chairman Kosachev stated that his committee would reopen hearings to discuss the ramifications of the action by the SFRC. He alleged that many of the conditions, understandings, and declarations in the resolution of advice and consent to ratification proposed by the SFRC are ‘deeply worrisome’ to many Russian Duma members, and stated that not only the synchronization of the ratification was necessary, but also the formulation of Russian statements to address those raised by the SFRC. He also raised concerns that a shift in party control in the U.S. Congress could delay or derail U.S. Congressional action on the treaty.”

See “Russian Political, Economic, and Security Issues and U.S. Interests,” Congressional Research Service, November 4, 2010.

Prompt Global Strike and Nuclear Arms Control

“Prompt global strike” refers to the possibility of destroying a target anywhere on Earth within minutes or hours using bombers, cruise missiles or ballistic missiles armed with conventional warheads. The prompt global strike mission and its various implications were examined in a new report (pdf) from the Congressional Research Service.

Some argue that a conventional global strike capability could permit reduced U.S. reliance on nuclear weapons without diminishing deterrence.  Others say that it would be destabilizing, especially since conventionally-armed ballistic missiles in flight would be indistinguishable from nuclear-armed ballistic missiles, and could therefore be easily misinterpreted as a nuclear strike.

Under the terms of the New START Treaty between Russia and the U.S., which is awaiting Senate consideration, conventionally-armed ballistic missiles would be permitted, despite initial opposition from Russia during negotiations.  However, such missiles would still be counted along with nuclear-armed missiles under the Treaty’s limits on deployed delivery systems. All of these issues and more were carefully sorted out by CRS analyst Amy F. Woolf in “Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues,” October 25, 2010.

The Congressional Research Service does not permit direct public access to its publications.

SALT and the Classic Era of Arms Control

The Strategic Arms Limitation Talks between the U.S. and the Soviet Union that led to the signing of the SALT I Treaty in 1972 were documented in exhaustive detail in the latest volume of the official State Department publication Foreign Relations of the United States (FRUS).

The new FRUS volume (pdf), which is more than 1000 pages long, covers internal deliberations over U.S. arms control policy and strategy in the Nixon Administration, and the development, refinement, negotiation and ultimate approval of the SALT I Treaty.

“You cannot put large missiles into small holes,” said Soviet leader Leonid Brezhnev “very irritably,” according to the transcript of a May 23, 1972 discussion on possible modification of existing missile silos.  “It is more complicated than that,” responded national security advisor Henry Kissinger.

Declassification review of this FRUS volume began in 2004 and was completed in 2010. It resulted in the withholding of 1 document in full, excisions of a paragraph or more in 9 documents, and excisions of less than a paragraph in 60 documents, as noted in the Preface.

Foreign Corrupt Practices, and More from CRS

“More and more prosecutions” under the Foreign Corrupt Practices Act may be expected, said Assistant Attorney General Lanny A. Breuer last month. The Foreign Corrupt Practices Act is intended to prevent and punish bribery of foreign officials by U.S. firms.  “The executive branch appears to have increased oversight of suspected American businesses for alleged violations,” according to a new report from the Congressional Research Service, noting that “there have been a number of settlements and indictments in 2010″ involving violations of the Act. See “Foreign Corrupt Practices Act (FCPA): Congressional Interest and Executive Enforcement” (pdf), October 21, 2010.

Another new CRS report uncovers the history of the mostly forgotten Joint Congressional Committee on Reduction of Non-Essential Expenditures, which was in existence from 1941-1974.  Its purpose was to generate recommendations for the elimination of non-essential federal spending.  Interest in the Committee has been revived because of the possibility that it could serve as a model for restraining federal spending today.  But that possibility seems faint, since there is no evidence that the Committee had any tangible effect.  “CRS research did not uncover instances [of spending cuts] that could be specifically attributed to a recommendation of the joint committee or documentation that attributed a specific cut in spending to a joint committee recommendation.”  See “History of the Joint Committee on Reduction of Non-Essential Federal Expenditures (1941-1974), with Observations on Oversight Today” (pdf), October 26, 2010.

CRS updated its recent report on “Criminal Prohibitions on the Publication of Classified Defense Information” (pdf) on October 18, 2010 to correct some minor factual errors and to make various editorial changes.

Copies of these reports were obtained by Secrecy News.

A New Policy on Controlled Unclassified Info

The White House today issued an executive order to establish a uniform policy for handling “controlled unclassified information” (CUI), which is information that is restricted from disclosure because it involves personal privacy, proprietary data, law enforcement investigations, or for certain other reasons besides national security.

The new CUI framework will replace the multiplicity of agency markings such as “sensitive but unclassified,” “for official use only,” and over a hundred more.  By prohibiting the use of such improvised markings and by adopting a standard CUI marking which is subject to external approval and oversight across the executive branch, the new policy is expected to facilitate information sharing among agencies without fostering new secrecy.

CUI policy had been an open, unresolved item on the government’s information policy agenda for nearly five years, ever since President Bush directed agency heads to “standardize procedures for sensitive but unclassified information” in a December 16, 2005 memorandum.

Significantly, the executive order on CUI does not create any new authority to withhold information from disclosure.  It limits the use of the CUI marking to information that is already protected by statute, by regulation or by government-wide policy.  Furthermore, it requires agencies to gain the approval of the CUI “Executive Agent” before using the CUI marking on any particular category of information.  And it mandates that all such approved categories are to be made public on an official Registry.

In short, the CUI program seems well-crafted to streamline information handling in the executive branch without creating any new obstacles to public access.

But it almost turned out very differently, and one of the most important secrecy policy stories of recent years is what did not happen in the lengthy deliberative process over CUI.  What was poised to happen — but didn’t — is that CUI nearly became an adjunct part of a vastly expanded national security classification system.

As recently as last summer, the proposed CUI concept had all of the essential attributes of classification.  Under a July 2010 draft of the executive order (pdf), agencies would have been permitted to impose CUI controls using a loose, undefined standard (“compelling need”).  Access to CUI would have been conditional on a form of “need to know.”  And unauthorized disclosure of CUI would have been subject to administrative or criminal sanctions.

In every significant respect, CUI would have constituted another level of classification, by another name.  It would have overwhelmed efforts to rein in and reduce official secrecy.

Fortunately a different path was chosen.  To an unusual extent, the Obama Administration consulted with public interest groups on the emerging CUI policy.  In response to their comments, the attributes of classification that appeared in previous drafts were not merely modified but were eliminated altogether.  The result is a tightly focused executive order that clearly articulates a problem and advances a sensible solution to it.

Army Weapon Systems Handbook 2011

The U.S. Army has published its 2011 Weapon Systems handbook, a catalog of current weapon programs that are in various phases of the acquisition process.  A copy was obtained by Secrecy News. Many of the programs are mature and familiar; others are less so.  In each case, the program’s purpose and status are described, contractors involved in production are identified, and countries that have acquired the weapon system through foreign military sales programs are listed.

A Step Towards Intelligence Budget Reform

Now that regular publication of the intelligence budget total has been accepted as the new norm, it is becoming possible to dismantle the related structures of budget secrecy that no longer serve any purpose.  In particular, the prospect of establishing a stand-alone intelligence budget that is independent of the budget of the Department of Defense came a step closer to reality with the announcement by Director of National Intelligence James R. Clapper Jr. that he had reached agreement on the matter with the Secretary of Defense.

“I’ve secured at least a conceptual agreement with the Secretary of Defense to take the National Intelligence Program out of the Defense budget,” DNI Clapper said (pdf) at the GeoInt conference in New Orleans yesterday.

Currently, the bulk of intelligence spending is buried within the Pentagon budget in a deliberately obscure and misleading way.  This practice is not only unnecessarily secretive, it is also deceptive.  It distorts the DoD budget by artificially inflating individual budget line-items, and it falsely includes spending for the Central Intelligence Agency — a non-DoD agency — as if it were part of the Pentagon.

Restructuring the budget so that spending for the National Intelligence Program is assigned to the Office of the DNI would not guarantee wise or effective intelligence policy. But it would remove a source of pointless obfuscation, and thereby strengthen oversight and accountability.

From the DNI’s perspective, it would enhance control over the budget. “I think that is one specific way to accrue more authority to ODNI in the oversight and execution of that funding,” DNI Clapper said. And from the Pentagon’s perspective, nothing would be lost since DoD does not control this money anyway.  (The Military Intelligence Program budget would remain under DoD authority.) And so the pretense of a larger DoD budget than there actually is could finally be abandoned.

“To me that is kind of a win-win,” DNI Clapper said. “It is $50 billion off the top line of DoD. And it certainly gives ODNI a lot more authority and insight and transparency over that money.”

If one also considers the public interest in achieving honest, straightforward budgeting, then this step would be win-win-win. However, the change in budget structure may imply a corresponding change in the jurisdiction of congressional authorization and appropriations committees, and so it may encounter opposition in Congress from proponents of the existing arrangements.

For related news coverage and background, see “Intel foiled al Qaeda plot, DNI chief says” by Eli Lake, Washington Times, November 3;  “Control of intelligence budget will shift” by Ellen Nakashima, Washington Post, November 3; and “Intel Budget Disclosure: What Comes Next?”, Secrecy News, November 1.

Surveillance Court Issues New Rules of Procedure

The Foreign Intelligence Surveillance Court, which reviews government applications for domestic intelligence surveillance, issued new rules (pdf) on Monday to govern its proceedings.  The new rules differ only slightly from the draft rules (pdf) that were issued for public comment in late August (“FISA Court Proposes New Court Rules,” Secrecy News, September 2, 2010).  In general, the rules update past Court procedures to reflect passage of the FISA Amendments Act of 2008, which expanded government surveillance authority.

In one modest editorial change suggested by FAS, the Court altered a line requiring that “classified information” be protected to specify that only “properly classified information” must be protected (Rule 62a). Another new provision in the final rules indicated that not only the government but also the Presiding Judge of the FISA Court “may provide copies of Court orders, opinions, decisions, or other Court records to Congress” (Rule 62c2).

In lengthy comments (pdf) submitted to the Court last month, the ACLU proposed several other substantive changes:  the rules should require public release of Court opinions and order that address significant or novel legal questions, including those that affect personal privacy;  the Court should release legal briefs that address such questions;  and the Court should clarify that it is the final arbiter of what information is to be released and what is to be redacted.

“The public has a right to see judicial rulings that define the scope of the government’s most intrusive surveillance powers and affect the rights of all Americans,” said Melissa Goodman of the ACLU National Security Project. “Secret law is inconsistent with the basic principles of democracy and makes informed public debate about the government’s surveillance powers nearly impossible.”

These specific changes were not adopted in the final rule, but new releases of Court records were not precluded either.  Rule 62a explains that a Court order or opinion may be published at the direction of the Presiding Judge, following a declassification review by the executive branch if necessary:

“Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified information is appropriately protected pursuant to Executive Order 13526 (or its successor).”

At first glance, the instruction that the Court “may, as appropriate” seek declassification review of opinions and orders prior to release seems to be permissive, not mandatory.  By contrast, the previous version (pdf) of the Court rules stated that opinions (though not orders) “must be reviewed” by the executive branch prior to publication.

Based on this change in language some observers inferred, happily or unhappily, that declassification review of Court opinions by the executive branch was now optional, and that the Court had reserved the right to release classified information on its own authority without such review.

But that appears to be a erroneous reading.  The Court’s Rule 3 states unequivocally that “In all matters, the Court and its staff shall comply with… Executive Order 13526, ‘Classified National Security Information’.”  That Executive Order does not permit unilateral disclosures of classified information or records without the prior review of the agency that classified them.