A Primer on Science Policy, and More from CRS

The basic structures and procedures of science and technology policymaking are presented in detail in a new report from the Congressional Research Service. See “Science and Technology Policymaking: A Primer” (pdf), April 18, 2008.

Other noteworthy new reports from the Congressional Research Service that have not been made readily available online include the following (all pdf).

“Information Security and Data Breach Notification Safeguards,” updated April 3, 2008.

“Congressional Oversight of Intelligence: Current Structure and Alternatives,” updated April 1, 2008.

“Data Mining and Homeland Security: An Overview,” updated April 3, 2008.

“Security Implications of Taiwan’s Presidential Election of March 2008,” April 4, 2008.

National Security Letters and Secret Law

The implications of the expanded use of “national security letters” by the FBI and other agencies to compel disclosure of business record information will be explored in a hearing tomorrow before the Senate Judiciary Committee.

For an introduction to the subject see “National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments” (pdf), Congressional Research Service, updated March 28, 2008.

Next week on April 30, Sen. Russ Feingold will chair a Senate Judiciary subcommittee hearing on “Secret Law and the Threat to Democratic and Accountable Government.”

Ben Stein Is Very, Very Wrong: Problems with Expelled: No Intelligence Allowed

Wolfgang Pauli is a legendary figure among physicists. He is remembered for having both one of the greatest minds of the twentieth century and one of its sharpest tongues. One student’s paper he dismissed by saying: That’s not right; it isn’t even wrong. (Or words to that effect in German; Pauli was Viennese.) If a theory isn’t relevant to the facts at hand, if it can’t be tested, if it doesn’t advance our understanding, then it isn’t that the theory is not right, it’s not even really a theory, it isn’t even wrong. It simply isn’t a tool for scientific understanding. Congressman Rush Holt once used Pauli’s expression in response to the claims that creationism, now often called Intelligent Design (ID), could be an “alternative” to the theory of evolution. Creationism isn’t even wrong because creationism can’t explain anything in the sense that science understands the word “explain.” Most advocates of creationism accept that evolution works at some scale and explains some things but for anything evolution does not explain they then assert that God, the Intelligent Designer, simply made it so. This is a valid religious belief. But what is the testable hypothesis? What is the prediction? What is the deeper understanding of mechanism? There isn’t anything there for a scientist to grab hold of. As far as science is concerned, creationism isn’t even wrong.

In contrast, Ben Stein has just released a movie, Expelled: No Intelligence Allowed, that is very, very wrong, indeed. (I confess, I have not seen the movie yet. It opens later today. This essay is based on Ben Stein’s extensive interviews, the movie website, and an extended, nine minute trailer available on the website. I will see the movie this weekend, although it pains me to give him any of my money.) I won’t argue about creationism here; it has been discussed in depth elsewhere. That “Intelligent Design” is a phrase designed in a transparent attempt to teach creationism without using the word “creationism” is well established. Ben Stein’s charges of unethical suppression of creationist spokesmen has been repudiated. But what is so very wrong about Ben Stein’s movie is not just the science; what I want to discuss here is his portrayal of how science works.

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Stage Set for Transfer of CIA Records to National Archives

A memorandum of understanding (pdf) signed this month by the Director of the Central Intelligence Agency and the National Archivist is expected to enable the transfer of many permanently valuable historical CIA records that are 50 years old or older to the custody of the National Archives (NARA), officials of both agencies said today.

Up to now, “we haven’t had a framework” for such transfers, said Joe Lambert, the new CIA chief information officer. And so, with few exceptions, “we haven’t transferred anything [to the Archives] in the past.” (Exceptions include certain CIA records related to the JFK assassination, Nazi war crimes, and a few other topics, as well as translations of foreign news reports.)

The new memorandum “lays the groundwork for routine transfer of CIA records” to the National Archives once they become 50 years old, said Assistant Archivist Michael J. Kurtz. “This will institutionalize the process.”

The memorandum itself does not seem very promising. It imposes a number of binding requirements on NARA officials, including referral to CIA of any request for records that have not already been approved for public release. No binding requirements are imposed on CIA, beyond an open-ended commitment to “review” any such requests.

But Allen Weinstein, the Archivist of the United States, said the memorandum would pave the way for regular transfers of CIA records to the Archives, and would ultimately result in improved public access to those records.

“Access is a multi-step process,” said Gary M. Stern, General Counsel at the National Archives. “Getting the records into the Archives is the first step.”

Having “listened carefully to the words and the music, I was convinced that this [agreement] would serve the public interest,” said Dr. Weinstein. “I wouldn’t have signed it otherwise.”

The memorandum’s words, at least, can be found here.

CIA is expected to provide to NARA an index of records subject to transfer in the next few weeks, with actual transfers to follow sometime thereafter.

A March 2000 National Archives evaluation of “Records Management in the Central Intelligence Agency” provided some detailed insight into the subject.

At that time, NARA held that “CIA retention of permanent files for 50 years is no longer appropriate” and should be reduced to something closer to 30 years. But by default and inaction, 50 year retention of records by CIA has now become the goal that the agencies are striving for.

A New ISOO Director, and Various Items

William J. Bosanko was formally named this week as the fourth director of the Information Security Oversight Offfice, the executive branch agency that is responsible for oversight of national security classification and declassification policy government-wide. A ten-year veteran of the ISOO staff, Mr. Bosanko shares an understanding of the ideals and the realities of classification as well as the scruple and the responsiveness that made his predecessors such remarkable public servants.

“When I am president, the era of Bush/Cheney secrecy will be over,” said Sen. Hillary Clinton in a speech to the Newspaper Association of America on April 15. “I will empower the federal government to operate from a presumption of openness, not secrecy… I will direct my administration to prevent needless classification of information that ought to be shared with the public.”

Sen. John Cornyn (R-TX) this week introduced a new bill to increase transparency in government agency expenditures, to provide online public tracking of legislative earmarks, and to require the IRS to provide taxpayers with statements of total taxes paid and projected. “This latest effort will provide taxpayers unprecedented information about how their money is spent, and how their taxes are paid. Increasing transparency in government spending is essential for accountability and fiscal responsibility.”

The CIA today published for public comment a proposed rule modifying its Freedom of Information Act procedures. “The Agency proposes to revise its FOIA regulations to more clearly reflect the current CIA organizational structure, record system configuration, and FOIA policies and practices and to eliminate ambiguous, redundant and obsolete regulatory provisions.”

War Crimes and Persian Gulf Weather

Prodded by a request from the Federation of American Scientists, the U.S. Marine Corps recently restored online public access to many of its doctrinal publications, Federal Computer Week reported on March 27.

One of those Marine Corps documents addresses war crimes (pdf), describing prohibited actions and the need to prevent them.

“While we Marines fight swiftly and aggressively, we also conduct our military operations with respect toward both the liberated people and the vanquished foe.”

“Marines do not harm enemy soldiers who surrender. Marines do not torture or kill enemy prisoners of war or detainees. Marines collect and care for the wounded, whether friend or foe.”

See “War Crimes,” Marine Corps Reference Publication 4-11.8B, 6 September 2005.

Another document is a 1990 analysis of weather patterns in the Persian Gulf (pdf).

“While some of the technical information in this manual is of use mainly to meteorologists, much of the information is invaluable to anyone who wishes to predict the consequences of changes in the season or weather on military operations.”

See “The Persian Gulf Region: A Climatological Study,” Fleet Marine Force Reference Publication 0-54, 19 October 1990.

AIPAC Defendants Say Testimony from ISOO’s Leonard is Crucial

Testimony from classification expert J. William Leonard, the former director of the Information Security Oversight Office, will “seriously undercut the government’s case” against two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with unlawful receipt and transmission of classified information, defense attorneys argued in a dramatic new pleading (pdf) urging that he be allowed to testify.

Prosecutors oppose Mr. Leonard’s testimony, saying it is precluded by his prior contacts with the prosecution.

The closely-watched AIPAC case is the first time that the government has ever used the espionage statutes to prosecute private citizens — pro-Israel lobbyists in this case — for receiving classified information to which they were not entitled and then communicating it to others.

“Mr. Leonard’s expert testimony is critical to the defense,” the defense pleading stated. “As the government’s former ‘Classification Czar,’ he has unsurpassed expertise in the issues involved in this case, and his insights into how and why the government classifies, protects, and discloses sensitive information squarely refute the prosecution’s theory of the case.”

The government has opposed Mr. Leonard’s testimony, citing a meeting he had in 2006 with prosecutors regarding the case while he was still a government employee and was being considered as a witness for the prosecution.

(“My impression from the interview was that they did not like what I had to say, especially about over-classification, and decided not to use me as an expert,” Mr. Leonard stated in an affidavit.)

For him to now testify as a defense witness, prosecutors argued, would be a violation of the Ethics in Government Act and, they insinuated, could even put him at risk of criminal prosecution.

To resolve any lingering legal uncertainty, the defense asked the court to issue an order authorizing Mr. Leonard to testify.

“Mr. Leonard has carefully examined the classified information at issue in this case,” the defense filing indicated. If and when he is permitted to appear, Mr. Leonard will testify “that information disclosed in this case could not damage national security, was not closely held, and was not demonstrably classified.”

Further, Mr. Leonard will testify “that high level government officials frequently disclose information contained in classified documents for the purpose of advancing national security interests instead of harming them,” and that “the defendants reasonably could have believed that their conduct was appropriate.”

“Given Mr. Leonard’s unsurpassed expertise, his testimony is likely to impact the outcome of the trial,” the defense said.

However, defendants need an order from the court “to ensure that Mr. Leonard can testify safely, particularly in light of the government’s shot across the bow regarding Mr. Leonard’s potential criminal liability [if he testifies for the defense].”

See the Defendants’ Reply to the Government’s Opposition to the Expert Witness Testimony of J. William Leonard, April 11, 2008.

Among the potential expert witnesses for the prosecution is William McNair, a former Information Review Officer at the Central Intelligence Agency known for his conservative approach to declassification and disclosure.

A pre-trial appeal of several district court rulings in the AIPAC case has been filed by the government, as well as a cross-appeal filed by the defense. This month’s anticipated trial was postponed and no new trial date has been set.

McCain Admits Possibility of Good “Leaks”

Some unauthorized disclosures of classified information in the press can serve a constructive purpose, Sen. John McCain allowed. And so he expressed support for a pending press “shield” law that would increase reporters’ legal protection against compulsory disclosure of their confidential sources.

“Despite concerns I have about the legislation, I have narrowly decided to support it,” he told the Associated Press Annual Meeting on April 14.

The bill, the Free Flow of Information Act, is co-sponsored by Sen. Barack Obama and has also been endorsed by Sen. Hillary Clinton. But Sen. McCain’s support is noteworthy because it places him directly at odds with the Bush Administration, which strongly opposes the measure.

Even more interesting is the way in which McCain framed the issue:

“The shield law is, frankly, a license to do harm, perhaps serious harm. But it is also a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

“I know that the press that disclosed security secrets that should have remained so also revealed the disgrace of Abu Ghraib.”

In other words, according to Sen. McCain, there are bad leaks of classified information and there are good leaks of classified information. (The leaked Army investigative report on Abu Ghraib [pdf] was classified Secret).

This comparatively nuanced view of unauthorized disclosures is a significant departure from the Bush Administration’s categorical view that any disclosure of classified information is unacceptable. And it provides some common ground for considering both disclosure and voluntary non-disclosure of classified information by the press.

The text of Sen. McCain’s April 14 speech is here.

The Washington Post editorialized today in favor of the press shield bill, which is also supported by press advocacy organizations such as the Reporters Committee for Freedom of the Press. Jack Shafer in Slate.com demurred.

Nieman Reports: 21st Century Muckrakers

The latest edition of Nieman Reports, the quarterly magazine of the Nieman Foundation for Journalism at Harvard, is devoted to the subject of “21st Century Muckrakers: Who Are They? How Do They Do Their Work?”

It’s a meaty and highly readable issue. I contributed a piece on “Secrecy vs. Citizenship.” Ted Gup, author of the recent book “Nation of Secrets,” has another piece on “Investigative Reporting About Secrecy.” Walter Pincus of the Washington Post wrote “Secrets and the Press,” a review of the Gup book. And there’s a lot more.

See the latest Nieman Reports, edited by Melissa Ludtke, here.

Senate Mulls Changes in Intelligence Oversight

The Senate Intelligence Committee has recommended creation of a new Senate Appropriations Subcommittee on Intelligence to prepare the annual intelligence budget.

“The [proposed] Subcommittee on Intelligence shall appropriate all funds for the National Intelligence Program (NIP) (as opposed to the current situation where appropriations for the NIP are fragmented among several subcommittees within the Appropriations Committee),” according to the March 6, 2008 proposal (pdf) sent by fourteen members of the Intelligence Committee to the Senate Majority Leader.

The proposed Subcommittee, on which members of the Intelligence Committee would be heavily represented, would increase the Committee’s influence and leverage over executive branch intelligence agencies. It would also probably imply and require continuing disclosure of the annual budget for the National Intelligence Program.

The proposal was developed in response to recommendations of the 9/11 Commission and 2007 legislation implementing those recommendations. It has already won significant bipartisan support outside of the Intelligence Committee.

“The options for additional reform contained in the SSCI’s letter represent a thoughtful response to the 9/11 Commission’s recommendations,” wrote Senators Joseph Lieberman and Susan Collins of the Senate Homeland Security and Governmental Affairs Committee on March 13 (pdf).

But the proposal is opposed by the leadership of the Senate Appropriations Committee.

“We do not understand how the creation of an Intelligence [Appropriations] Subcommittee, led by members of the Intelligence Committee, would do anything but minimize the free exchange of ideas and hamper the debate which exists in the current system,” wrote Senators Robert Byrd and Thad Cochran, the Chair and Ranking Member of the Appropriations Committee.

“We strongly believe that consolidating authority over intelligence in a smaller group of Senators is precisely the wrong way to improve the Senate’s oversight of intelligence,” they wrote in an April 5 letter (pdf) to the Senate leadership.

It may be argued that the greatest defect in Senate oversight of intelligence is not a limitation of jurisdiction or budgetary influence, but of principle and will. Overseers have failed in recent years to challenge the Administration’s implicit view that the ends justify the means, and they have acquiesced in momentous intelligence policy deviations, which now apparently include officially-sanctioned torture (though that word is not used) and extra-legal surveillance of domestic communications. Americans who are repulsed by such developments lack effective representation in the Senate oversight process.