India Gets a Deal

The much anticipated “deal” between the United States and India for the transfer of nuclear technology and equipment was released over the weekend. It is a sobering read and tells us much about the administration’s thinking. In summary, there isn’t much of a deal here at all, India gets what it wants.
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House Moves to Block Intel Budget Disclosure

Updated below

One day after President Bush signed into law a bill that requires public disclosure of the national intelligence budget, the House of Representatives adopted an amendment to prevent that requirement from taking effect.

The budget disclosure provision appeared in legislation enacting the recommendations of the 9/11 Commission, which was passed by Congress last month and signed by President Bush on August 3.

If implemented, it would mark the first time that Congress successfully asserted its authority to compel disclosure of currently classified information over the objections of the executive branch. Since 1998, the intelligence bureaucracy has consistently refused to divulge the intelligence budget total. The White House stated on February 28 that budget disclosure “could cause damage to the national security interests of the United States.”

The opposing view, adopted by the 9/11 Commission and endorsed by Congress last month, is that budget disclosure is an indispensable precondition to broader accountability and that it is essential to restoring the credibility of a defective classification system.

But despite the fact that the requirement to disclose the intelligence budget has finally passed into law, it may not happen after all.

Rep. Darrell Issa (R-CA) offered an amendment to the Defense Appropriations Act on August 4 that would prohibit budget disclosure. Without any debate, Rep. John Murtha (D-PA) announced that the amendment was accepted.

The Issa amendment will have to be addressed in a House-Senate conference before it effectively repeals the new disclosure requirement.

Update: See further coverage of this story in “Powerful Democrat agrees to block disclosure of intelligence budget” by John Byrne, Raw Story, August 7; and “Congress Rethinks New Intel Budget Law” by Jim Abrams, Associated Press, August 7.

Public Info in Plame Case is Classified, Judge Rules

A federal court last week accepted a Central Intelligence Agency argument that the date on which former covert officer Valerie Plame Wilson’s employment at the CIA began should remain classified even though it is irrevocably in the public domain.

The date in question appeared in a seemingly unclassified letter sent by CIA to Ms. Wilson and published in the Congressional Record. But when she sought to include the information in the manuscript of her forthcoming memoir, the CIA objected that it is still classified. Now the Court has agreed.

“To be sure, the public may draw whatever conclusions it might from the fact that the information at issue was sent on CIA letterhead by the Chief of Retirement and Insurance Services,” wrote Judge Barbara S. Jones in an August 1 ruling (pdf). “However, nothing in the law or its policy requires the CIA to officially acknowledge what those in the public may think they know.”

The text of the CIA letter containing the classified information citing the start of Ms. Wilson’s employment on November 9, 1985 was published in the Congressional Record (pdf) on January 16, 2007.

In their June 28 motion (pdf) to overturn CIA censorship, Ms. Wilson’s attorneys cited a lawsuit of mine in which the CIA was compelled to disclose its 1963 budget after I showed that the figure had previously been declassified. “As in ‘Aftergood’,” they argued by analogy, “the Court should reject the CIA’s belated and unsupported effort” to deny access to information in the public domain.

But that case was different, the government replied on July 13 (pdf). The 1963 budget figure was declassified, albeit inadvertently. The information on Ms. Wilson’s employment was never formally declassified, inadvertently or otherwise, but was merely disclosed by accident.

An unclassified declaration by Stephen R. Kappes (pdf), deputy director of CIA, provided a lucid explanation of CIA’s perspective on classification of information about covert employees, intelligence liaison relationships, and related topics.

Other selected case files may be found here.

FOIA Reform Advances in Senate

The Open Government Act, a bipartisan bill to strengthen the Freedom of Information Act, passed the Senate on August 3 after objections from a lone Senator were finally overcome.

Senators Pat Leahy (D-VT) and John Cornyn (R-TX) successfully shepherded the legislation, which is intended to expedite agency responsiveness to FOIA requests and improve the freedom of information regime in various other ways.

Sen. Jon Kyl (R-AZ), who had earlier placed a hold on the bill blocking its advance, explained his concerns in an August 3 floor statement and how they had been resolved. The measure passed on a voice vote.

CRS Reports on 2008 Budget Appropriations

Recent reports of the Congressional Research Service on the 2008 budget appropriation cycle obtained by Secrecy News include the following (all pdf).

“Homeland Security Department: FY2008 Appropriations,” updated July 17, 2007.

“Federal Research and Development Funding: FY2008,” updated July 26, 2007.

“Commerce, Justice, Science, and Related Agencies: FY2008 Appropriations,” July 20, 2007.

“Financial Services and General Government (FSGG): FY2008 Appropriations,” updated July 20, 2007.

“Energy and Water Development: FY2008 Appropriations,” updated July 13, 2007.

Reporters Could be Prosecuted Under Espionage Law, DoJ Says

The espionage statutes concerning classified information could be employed against journalists who publish such information without authorization, a Justice Department official told Congress recently, elaborating on remarks made last year by Attorney General Gonzales.

Those statutes, “on their face, do not provide an exemption for any particular profession or class of persons, including journalists,” wrote Matthew W. Friedrich, DoJ Criminal Division Chief of Staff, in a March 2007 response to questions (pdf) from the Senate Judiciary Committee that has been newly published.

He stressed that “the Justice Department’s primary focus has been and will continue to be investigating and prosecuting leakers, not members of the press.”

But he added that “it would be inappropriate to comment on whether the Department is now considering the prosecution of journalists for publishing classified information.”

The congressional correspondence touched on several issues that are new or rarely addressed.

“What about conduct that is incidental to a journalist publishing a story,” asked Senator Pat Leahy, “such as retaining classified documents that may be used later in a story, or communicating such information to a publisher or other reporters in the course of writing a story?”

The legality of these activities would “depend on the particular facts and circumstances,” Mr. Friedrich replied. “It would be inappropriate to offer an advisory opinion about the legality of such conduct.”

Could improper or unnecessary classification be used as a defense against prosecution? “We are aware of no case that affirmatively holds that such a defense is available to defendants in Espionage Act cases,” Mr. Friedrich wrote. And he cited one Ninth Circuit decision that said that “under section 798 [one of the espionage statutes], the propriety of the classification is irrelevant.”

He disclosed that “over the past five years, the Department has approved search warrants for materials related to the news gathering process… in four cases.” These were not specified.

Mr. Friedrich’s answers to questions for the record from Senators Specter and Leahy, transmitted March 1, 2007, are posted here.

They were recently published in the record of a June 6, 2006 Senate Judiciary Committee hearing entitled “Examining DOJ’s Investigation of Journalists Who Publish Classified Information: Lessons from the Jack Anderson Case.”

DNI Issues Directives on Analytical Standards, DOCEX

Director of National Intelligence J.M. McConnell has issued new Intelligence Community Directives on standards for intelligence analysis and on document exploitation.

“Analysts and managers should provide objective assessments informed by available information that are not distorted or altered with the intent of supporting or advocating a particular policy, political viewpoint, or audience,” the DNI instructed. See “Analytical Standards” (pdf), Intelligence Community Directive 203, June 21, 2007.

Meanwhile, a new interagency DNI Center called the National Media Exploitation Center “will serve to advance the IC’s collective DOMEX [document and media exploitation] capabilities on behalf of the DNI.” See “Document and Media Exploitation” (pdf), ICD 302, July 6, 2007.

Also new is “National Intelligence Board” (pdf), ICD 202, July 16, 2007.

U.S. Army Ranger Handbook

The U.S. Army Ranger Handbook, updated last year, provides an introduction to this branch of Army special operations forces, with a mixture of history, lore, doctrine, operational guidance and survival tips.

“Tell the truth about what you see and what you do,” advised a historic Ranger document from 1759, reprinted in the current Handbook. “There is an army depending on us for correct information. You can lie all you please when you tell other folks about the Rangers, but don’t never lie to a Ranger or officer.”

See “Ranger Handbook,” U.S. Army, July 2006.

CRS Reports on Various Topics

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

“Defense: FY2008 Authorization and Appropriations,” updated July 30, 2007.

“Africa Command: U.S. Strategic Interests and the Role of the U.S. Military in Africa,” updated July 6, 2007.

“Permanent Normal Trade Relations (PNTR) Status for Russia and U.S.-Russian Economic Ties,” updated July 10, 2007.

“Judicial Security: Responsibilities and Current Issues,” updated July 9, 2007.

“Judicial Security: Comparison of Legislation in the 110th Congress,” updated July 11, 2007.

“Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests,” updated July 12, 2007.