Various Resources

“The Bush administration has left in its wake a demoralized national-security press corps, battered by leak investigations, subpoena-happy prosecutors, and a shift in the legal and wider culture away from the previous understanding of journalism’s mission and First Amendment protections,” writes Laura Rozen in the Columbia Journalism Review.  See her story “Hung Out to Dry” along with a series of other articles on openness and secrecy.

“Secrecy” by Peter Galison and Robb Moss, a movie that critically examined the national security secrecy system from several contrasting perspectives, is now available on DVD.  It premiered last year to appreciative reviews.

Attorney Sheldon I. Cohen represented a naturalized American of Israeli origin who was initially denied a security clearance after he said that he would not bear arms against Israel in the event of a conflict between Israel and the United States.  Mr. Cohen describes the resolution of the case in a new write-up (pdf).

The admiration that many Americans feel for President Obama is celebrated and ridiculed in a new anthology of Obama speeches and writings, published in the form of a “Little Blue Book” that “easily fits into pocket or purse.”  President Obama’s “guiding principles will enlighten the minds of the people and prepare the way for a new era of change,” the booklet promises.  “In order to master the President’s ideology, it is essential to study many of the basic concepts over and over again, and it is best to memorize important statements and apply them repeatedly.”

Obama: We Will “Do Our Business in the Light of Day”

Updated below

President Barack Obama found room in his inaugural address to affirm a commitment to open, accountable government.

“And those of us who manage the public’s knowledge dollars will be held to account, to spend wisely, reform bad habits and do our business in the light of day, because only then can we restore the vital trust between a people and their government,” the President said.

There are several notable aspects to this formulation.  First, it clearly states that government information belongs to the public and that it is only temporarily managed by its current custodians in office.  It reasserts the original constitutional linkage between public disclosure and wise government spending.  It acknowledges the need for reform and correction of bad government information habits.  And it implicitly recognizes that the vital relationship of trust between the people and the government has been broken and needs to be restored.

Some of the Obama Administration’s initial steps towards greater openness seem to reflect more enthusiasm than careful consideration.

For example, the new White House web site now states that “We will publish all non-emergency legislation to the website for five days, and allow the public to review and comment before the President signs it.”

This does not make a lot of sense, since the White House cannot amend legislation that has already been passed by Congress or take any other action in response to public “review and comment” except to veto the measure.  Public comments on pending legislation need to be directed to members of Congress, whose specific function is to represent their constituents’ interests and concerns.

Nevertheless, the proposal is another sign of a new willingness to engage the public through increased disclosure and communication.  And it’s another reason to stop and wonder at this new Administration.

Update: And see President Obama Declares “A New Era of Openness”, January 22.

Presidential Transition Binder Shines a Light on FEMA

The structure and functions of the normally somewhat opaque Federal Emergency Management Agency (FEMA) are illuminated in a 238-page briefing book (pdf) that was prepared for the presidential transition.

“The FEMA 2009 Presidential Transition Binder… is intended to serve as a reference for FEMA leadership and employees to help orient them to its organizational structure, programs, resources, stakeholders, and operations,” the document states.

The Binder, which has not otherwise been made readily available to the public, was obtained by Jonah Czerwinski, who writes the Homeland Security Watch blog.

OLC Says LBJ Memo Critical of Polygraph is Non-Binding

The outgoing head of the Bush Administration Office of Legal Counsel took the time to issue an opinion (pdf) last week stating that a forty-year-old memorandum issued by President Lyndon B. Johnson limiting use of polygraph tests is not binding on executive branch agencies today.

The Johnson memorandum had stated that in order “to prevent unwarranted intrusions into the privacy of individuals[,]… use of the polygraph is prohibited” in the Executive Branch, with three “limited exceptions.”

But in a 12-page OLC opinion dated January 14, 2009, Steven G. Bradbury concluded that the Johnson memo was never formally issued, that it was contradicted by subsequent actions and that in any event it is not binding on executive branch agencies today.

The OLC memo was previously noted by polygraph critic George Maschke of, who also posted a copy of the LBJ memo on polygraph testing.

Feingold: New FISA Court Ruling Based on Incomplete Record

When it upheld the constitutionality of warrantless intelligence surveillance under certain very particular circumstances in a ruling (pdf) that was disclosed last week, the Foreign Intelligence Surveillance Court of Review was acting on an incomplete factual record that may have skewed its decision, according to Senator Russ Feingold (D-WI).

“It is my view that the Court’s analysis would have been fundamentally altered if the company that brought the case had been aware of, and thus able to raise, problems related to the government’s implementation of the law, about which I have repeatedly raised concerns in classified settings,” Sen. Feingold said.

The new decision “placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access.”  The court therefore ruled “without the benefit of an effective adversarial process,” he said in a January 16 statement.

In any case, Sen. Feingold stressed, the new decision “in no way validates or bolsters the president’s illegal warrantless wiretapping program.  The decision, which only addressed surveillance authorized by the Protect American Act (PAA) enacted in August 2007, did not support the President’s claim of constitutional authority to violate the law.  Nor did the decision uphold the constitutionality of the PAA in all cases, but rather it upheld only the Act’s application in this particular case.”

While narrowly limited in scope to the specific, never-to-be-repeated circumstances of this case, the new ruling explicitly states for the first time that there is a foreign intelligence exception to the Fourth Amendment:  “[W]e hold that a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” [at page 17]  (More from Emptywheel, Glenn Greenwald, Volokh.)

Iran’s Testing of Russian Shkval Torpedo Documented

The Russian Shkval torpedo was tested for Iranian naval officials in 2004 and the resulting data were described in several newly disclosed Persian-language documents.

Iran’s own Hoot torpedo is evidently derived from the Shkval.  Both are high-speed, supercavitating anti-ship missiles.

Some of the newly disclosed Iranian documents, which include Shkval technical specifications and test performance data as well as Hoot production records, are marked “khayli mahramaneh” or “very confidential,” the third of four classification levels used in Iran.  The documents have not been approved for public release, but copies were obtained by Secrecy News.

Presidential Pardoning Power, and More from CRS

The President of the United States has broad and essentially unfettered authority to issue pardons for offenses against the United States, a new Congressional Research Service report on the subject explains.

“It also appears that a pardon may be revoked at any time prior to acceptance or delivery” of the warrant of pardon, according to the CRS assessment, which finds no flaw in the recent decision by President Bush “not to execute” a previously announced pardon in the case of real estate developer Isaac R. Toussie.  See “An Overview of the Presidential Pardoning Power” (pdf), January 7, 2009.

Some other new or newly updated CRS reports that have not been made readily available to the public include the following (all pdf).

“Nuclear Weapons in U.S. National Security Policy: Past, Present, and Prospects,” updated December 30, 2008.

“Nuclear Arms Control: The Strategic Offensive Reductions Treaty,” updated December 30, 2008.

“Organizing the U.S. Government for National Security: Overview of the Interagency Reform Debates,” updated December 16, 2008.

“Iran’s Nuclear Program: Tehran’s Compliance with International Obligations,” December 4, 2008.

“U.S. Military Stop Loss Program,” January 8, 2009.

“Department of Defense Facilities Energy Conservation Policies and Spending,” December 31, 2008.

“Congressional Commissions: Overview, Structure, and Legislative Considerations,” December 19, 2008.

“Terrorism and Security Issues Facing the Water Infrastructure Sector,” updated November 17, 2008.

“Covert Action: Legislative Background and Possible Policy Questions,” updated December 1, 2008.

New Guidelines Define NCTC Access to Non-Terror Databases

The National Counterterrorism Center (NCTC), a component of the Office of the Director of National Intelligence, may obtain access to federal databases containing non-terrorism-related information in order to acquire information needed for authorized counterterrorism purposes, pursuant to a recent memorandum of agreement (pdf) between the Director of National Intelligence and the Attorney General.

“NCTC will access information in such datasets identified as containing non-terrorism information… only to determine if the dataset [also] contains terrorism information,” the memorandum states.

“NCTC is not otherwise permitted under these guidelines to query, use, or exploit such datasets (e.g., analysts may not ‘browse’ through records in the dataset that do not match a query with terrorism datapoints, or conduct ‘pattern-based’ queries or analyses without terrorism datapoints),” the memo directs.

The seven-page Memorandum of Agreement has not been approved for public release, but a copy was obtained by Secrecy News.  It took effect on November 4, 2008.

“Most of the terrorists arrested in the U.S. have supported themselves with common criminal activities” and therefore NCTC would have a legitimate need for access to related law enforcement information, a senior intelligence official from another agency told Secrecy News.

The new memo “regularizes the process by which NCTC can access information not originally collected for intelligence purposes,” the official said.  It also “inserts the ODNI Civil Liberties Protection Officer into the process with an affirmative role for the first time — I think.”

The memorandum makes the ODNI Civil Liberties Protection Officer responsible for ensuring that NCTC complies with privacy guidelines when accessing non-terrorism-related databases.

Basic Failures Abound in Classification Program

“At a time where we would expect to find increasing stability in the [national security classification] program, we are instead finding failure with the implementation of basic requirements,” wrote William J. Bosanko, director of the Information Security Oversight Office (ISOO), in the latest ISOO annual report to the President (pdf).

Out of more than 1,000 classified documents examined by ISOO last year, “the appropriateness of classification was subject to question in over 25 percent,” Mr. Bosanko reported.  See the FY 2008 ISOO Report to the President, transmitted January 12, 2009.

In what may be the report’s most significant finding, ISOO discovered that the majority of classification guides used by government agencies to prescribe exactly what information should be classified at what level are badly out of date.

“Overall, 67 percent of the guides agencies reported as being currently in use had not been updated within the past five years,” the ISOO report said.  In effect, agencies are continuing to impose outdated classification restrictions on newly generated information.

This finding underscores the utility of, and the need for, an agency-by-agency “scrub” of all classification guides in order to eliminate obsolete classification practices.  (For more on this approach, see “Overcoming Overclassification,” Secrecy News, September 16, 2008.)

The new ISOO report also had some favorable news.  The number of original classification authorities (who are authorized to designate new information as classified) declined slightly.  The number of original classification decisions — new secrets — dropped by 13 percent.  For the fourth year in a row, a majority of new classification actions were assigned a declassification date of ten years or less.  The number of classification challenges within the executive branch disputing the classification status of certain information rose to 436 formal challenges from 275 the year before.  The ISCAP, which reviews appeals of declassification requests that have been denied, declassified a greater percentage of information than in past years.

But in general, declassification languished.  “The overall number of pages reviewed and pages declassified by Executive branch agencies has declined significantly from previous years.”  And it is unlikely that agencies will meet a December 31, 2009 deadline for automatic declassification of 25 year old records that contain multiple agencies equities (or interests), the ISOO report said.

In the end, the classification system can only work as well as government officials want it to work, the ISOO report concluded.

“Ultimately, the success or failure [of agency classification policies] depends on the commitment of the agency heads and senior agency officials to the classified national security information program established by the President,” ISOO said.

ODNI Denies Release of 2006 Intelligence Budget Figure

The Office of the Director of National Intelligence today denied a request to release the size of the 2006 National Intelligence Program budget.

The size of the 2007 budget (pdf) for the National Intelligence Program has been formally declassified and released ($43.5 billion).  And so has the figure for the 2008 budget ($47.5 billion).

But “the size of the National Intelligence Program for Fiscal Year 2006 remains currently and properly classified pursuant to Executive Order 12958, as amended,” wrote Lt. Gen. Ronald L. Burgess, Jr. (pdf), director of the ODNI Intelligence Staff.

“In addition, the release of this information would reveal sensitive intelligence sources and methods,” he wrote.