A Bill to Challenge Secret Law

New legislation would require the Attorney General to report to Congress whenever the Department of Justice issues a legal opinion indicating that the executive branch is not bound by an existing legal statute.

The bill, introduced September 16 in the Senate by Senators Russ Feingold and Dianne Feinstein, responds to the Bush Administration’s use of secret opinions from the Justice Department Office of Legal Counsel (OLC) to circumvent binding legal restrictions on domestic surveillance, torture and other practices.

“The Bush Administration has relied heavily on secret OLC opinions in a broad range of matters involving core constitutional rights and civil liberties,” said Senator Feingold.

“The administration’s policies on interrogation of detainees were justified by OLC opinions that were withheld from Congress and the public for several years. The President’s warrantless wiretapping program was justified by OLC opinions that, to this day, have been seen only by a select few Members of Congress. And, when it was finally made public this year, the March 2003 memorandum on torture written by John Yoo was filled with references to other OLC memos that Congress and the public have never seen–on subjects ranging from the Government’s ability to detain U.S. citizens without congressional authorization to the Government’s ability to operate outside the Fourth Amendment in domestic military operations.”

“When OLC concludes that a statute passed by Congress does not bind the executive branch, Congress has a right to know that the executive branch is not operating under that statute, and to be apprised of the law under which the executive branch is operating. The bill I am introducing with Senator Feinstein codifies that right,” Senator Feingold said.

See the introduction of the “OLC Reporting Act of 2008,” September 16.

Guidelines for FBI National Security Investigations

As the Justice Department prepares to issue new guidelines for FBI national security investigations, a more complete version of the current guidelines that were issued in 2003 has recently surfaced (pdf).

Although the redacted guidelines released in 2003 are still posted on the Justice Department web site (pdf), some of the redactions in that document were rescinded in August 2007 on the authority of Attorney General Alberto R. Gonzales. A copy of those less-censored guidelines was obtained this week by Greg Nojeim of the Center for Democracy and Technology.

See “The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection,” October 31, 2003, classification modified on August 2, 2007. For comparison, the previously released version is posted here (pdf).

Among the previously redacted language that has now been disclosed is the statement that “Preliminary investigations are authorized, generally speaking, when there is information or an allegation indicating that a threat to the national security may exist.” (Bottom of p. 3).

The newly disclosed version of the guidelines also addresses the legal standard for opening a full national security investigation; the investigative techniques that may be used in preliminary and full investigations; and more.

On September 12, Justice Department officials held a background briefing describing the contents of the proposed new guidelines that would replace the 2003 FBI national security investigative guidelines.

The American Civil Liberties Union said the proposed new guidelines went too far in lowering the threshold for initiating an investigation and threatened to infringe on protected first amendment activities.

Online debate on Russia at The Economist

At a House Committee on Foreign Affairs meeting 9 September 08 members of Congress discussed what the U.S. response should be to Russia’s aggressive actions in Georgia last month.  Most members of the Committee acknowledged that some sort of response was necessary to voice U.S. concerns about the possibility of a more aggressive Russian foreign policy, while they also conceded that the U.S. does need Russia’s cooperation on important matters of international security, such as helping to influence Iran’s nuclear ambitions.  An interesting debate is being hosted online on this topic by The Economist – click here to link to it.

Overcoming Overclassification

The next President could achieve a systematic reduction in government secrecy by directing each agency that classifies information to conduct a detailed public review of its classification policies with the objective of reducing secrecy to the essential minimum and declassifying everything that does not meet the standard for classification.

Modeled on the Fundamental Classification Policy Review that was performed by the Department of Energy in 1995, this approach may be the best way to eliminate obsolete secrecy policies and to galvanize disclosure of improperly classified material.

I discussed this proposal in a statement (pdf) submitted to a Senate Judiciary Subcommittee hearing today on “Restoring the Rule of Law” chaired by Senator Russ Feingold.

Complaints about overclassification are about as old as the classification system itself. But policy responses that effectively mitigated the problem have been few and far between.

Numerous Commissions and advisory groups have urged various kinds of reforms over the years, but none of them has made a serious dent in classification policy. While President Clinton’s 1995 executive order 12958 triggered an avalanche of declassification of historical records, it left the scope of original classification activity unchanged. Statutory declassification programs like that established by the 1992 JFK Assassination Records Review Act relaxed controls on records concerning particular historical topics but did not translate into systematic classification reform.

By contrast, the DoE Fundamental Classification Policy Review permanently altered the Department of Energy’s classification policies in favor of greater openness.

The Review, undertaken as part of Energy Secretary Hazel O’Leary’s Openness Initiative, was performed by 50 technical and subject matter experts with the benefit of significant public input. Thousands of classification guides were reviewed and modified. Hundreds of specific changes in classification policy were recommended and, with some exceptions, were adopted in practice.

The 1995 Review had several essential features that help to explain its comparative success.

First, it was focused at the agency level where most classification decisions are actually made. Although a presidential executive order defines the basic terms of the classification system for the executive branch as a whole, its practical implementation is decided at the agency level. It is the agencies that create the classification guides that specify exactly what information is to be classified at what level. It is therefore the agencies that must adopt and execute changes to those classification decisions.

Second, the 1995 Review enlisted the Department of Energy bureaucracy itself as an agent of classification reform, and not merely its object. Given a directive to modernize and curtail classification activity, this rule-based organization effectively revised its own classification policies beyond what any outside critic could have hoped to achieve or had been able to achieve in the past.

Third, the Review actively solicited public input on needed classification reforms, and invited public review of the resulting recommendations prior to completion. The process sought to incorporate public perspectives and to embody the transparency that it was intended to serve. In so doing, the Review successfully fostered public confidence and support for its work.

In the next Administration, the same principles could be brought to bear on each one of the major producers of classified information, including the defense agencies, the intelligence agencies, the Justice Department and the State Department.

Although there is widespread recognition within the government today that classification activity has exceeded all reasonable bounds, the leadership needed to correct the problem has been lacking. But the next Administration could supply it, with a directive to each classifying agency to perform a top to bottom review of every classification policy and guide.

A review of this sort would not solve all classification problems. It would not prevent deliberate abuse of classification authority. It would not even resolve all good faith classification disputes, many of which involve an irreducible subjective element. It would also not address the growing controls on unclassified information.

But in a policy arena prone to rhetorical thunderbolts that turn out to have no real world consequences, the fundamental classification policy review described in my statement is a proven method for reducing the enormous classification overgrowth that has built up over decades.

Panel on Weatherization Assistance Program and Low Income Home Energy Assistance Program

Tomorrow, the Center for American Progress will be hosting a panel on the Department of Energy’s Weatherization Assistance Program (WAP) and the Low Income Home Energy Assistance Program (LIHEAP). This panel will examine the impact of rising home energy costs on low-income households. It will also explore what Congress and the president can do to strengthen the ability of LIHEAP to provide vulnerable homes with needed assistance this winter while also ensuring that WAP investments reduce costs in future winters.

FAS senior advisor John Millhone (former director of the Weatherization and Intergovernmental Programs at the U.S. Department of Energy until his retirement in 2003) wrote a paper on these two programs, which can be found here.

I’ll be attending the panel, and will post any interesing notes here afterwards. More information on the event can be found here.

Job Posting: Project Manager for Biosecurity

The Federation of American Scientists Biosecurity Project has the following position available:

Job Title: Project Manager for Biosecurity

Location: Washington, D.C.

Salary: Commensurate with experience, generous benefits

Education: Ph.D. or Masters degree considered.

Description: FAS is looking for a smart, energetic individual to help direct a major web-based project using innovative video, multimedia and social networking tools to revolutionize the way biosecurity issues are communicated. The initial work will focus on building and development of an interactive and easy to use web portal. Unique content will be created and updated daily. This project is part of an ambitious FAS program to use web 2.0 principles and new technologies to provide comprehensive information on biological and chemical weapons. It will expand on current FAS work to provide high-quality education material on dual-use awareness by providing a hub for biosecurity information and training.

The individual will help design and build the web portal, create new and unique content to feature, keep it up to date and current, oversee efforts to evaluate its impact, plan and execute future work that expands the scope and utility of the site. The person will also participate in broader FAS work and further existing research programs on biological and chemical weapons.

Candidates should have taken graduate-level courses in biology or chemistry and have knowledge of html, web design, and image/video editing. Familiarity with Flash, MySQL database management, and WordPress blog software is highly desirable but not essential.

FAS professionals are expected to be highly motivated and able to work independently.  They are expected to be able to analyze complex issues and summarize findings; communicate clearly, both orally and in writing; have strong organizational skills; be capable of prioritizing work assignments in a heavy workload environment; and possess superior research and information technology skills.

Continue reading

Senators Call for New Intelligence Appropriations Subcommittee

Stating that “dozens of billions of dollars” had been secretly wasted on misconceived intelligence programs, Senator Christopher Bond (R-MO) and other members of the Senate Intelligence Committee yesterday called for creation of a new subcommittee on intelligence within the Senate Appropriations Committee that would exercise greater control on intelligence spending.

In the absence of a dedicated intelligence appropriations subcommittee that would include members of the Senate Intelligence Committee, the recommendations that emerge from the intelligence authorization process are frequently ignored, said Sen. Bond, to the detriment of intelligence policy.

“I am concerned about wasteful spending, not just in the billions of dollars, but in the dozens of billions of dollars, that the public does not know about because it is all classified,” Sen. Bond said yesterday on the Senate floor.

There are many instances in which the judgments of Senate Intelligence Committee overseers are wrongly circumvented by appropriators, he said.

For example, “After years of billions of dollars having been wasted by the intelligence community and the National Reconnaissance Office I proposed a much cheaper, multifunctional approach to sustain our [intelligence] satellite constellation,” Sen. Bond said. But earlier this week, Senate defense appropriators blocked the proposal, he said, in favor of the status quo.

Under the pending Senate proposal, the budget for the National Intelligence Program would be appropriated by the new subcommittee on intelligence, whose membership would overlap with the Senate Intelligence Committee.

“Those who have the time and mandate to study the issue extensively need to be the ones whose discernment is brought to bear on those matters,” Sen. Bond said, referring to the members and staff of the Intelligence Committee. He added that the proposed new arrangement would fulfill the spirit if not the letter of a key recommendation of the 9/11 Commission with regard to congressional oversight of intelligence.

The proposal (Senate Resolution 655), jointly sponsored with Senators Jay Rockefeller (D-WV) and Sheldon Whitehouse (D-RI), has been referred to the Senate Rules Committee.

Bin Laden Statements, 1994-2004

A U.S. government compilation of interviews and other public statements issued by Usama bin Laden between 1994 and 2004 is now publicly available (pdf).

The texts were translated by the CIA’s Foreign Broadcast Information Service (which has since been succeeded by the Open Source Center).

The 289-page collection has not been approved for public release, but a copy was obtained by Secrecy News. See “Compilation of Usama Bin Laden Statements, 1994 – January 2004,” Foreign Broadcast Information Service, January 2004.

How can China and the US work together to address climate change?

No topics have risen more quickly in recent years than procuring green energy alternatives and combating climate change. How can China and the United States work together to stop global climate change? What can the new U.S. president do to help China become more energy efficient? The Federation of American Scientists will host a symposium to answer these questions at the University of California, Berkeley, on Thursday, 25 September from 11:00 am – 12:30 pm PDT. Continue reading

House Adopts Overclassification Reduction Act

The House of Representatives yesterday passed the Overclassification Reduction Act, a bill that is intended to help reduce inappropriate classification of information in government.

The bill would require the National Archivist to develop regulations to help combat overclassification. The bill would mandate increased accountability for classification actions, with incentives for challenging improper classification and penalties for abuse of classification authority. Importantly, it would require agency inspectors general to perform periodic audits of classification activity to ensure compliance with classification standards.

While the bill represents a welcome expression of congressional interest in overclassification, its proposed solution does not seem carefully adapted to the problem.

“The problem of overclassification is government-wide and it demands a government-wide solution,” said Rep. Henry Waxman (D-CA), who introduced the bill along with Rep. Tom Davis (R-VA).

But that is unlikely to be true, because it presumes that overclassification is a uniform phenomenon across the government, which is not the case. Overclassification at the CIA is not the same as overclassification at the Pentagon or the State Department. Not only do these agencies have different institutional cultures, their classification policies revolve around different sets of security concerns, and they are implemented through distinct sets of procedures.

A government-wide regulation like the 2003 implementing directive issued by the Information Security Oversight Office can set important parameters for classification duration, classifier training, document marking, and so forth. But that directive has not been an effective vehicle for reversing or combating overclassification.

An alternate approach to the problem will be described in Secrecy News next week.