Detainee Interrogation: A Road Not Taken

The development of Bush Administration policies on the treatment of suspected terrorist detainees was probed yesterday at a Senate Judiciary Committee subcommittee hearing, which also led to the release of two primary source documents reflecting internal Bush Administration deliberations.

Former State Department Counselor Philip Zelikow described his efforts in 2005-6 to advance a standard that would effectively prohibit “cruel, inhuman, and degrading” treatment of detainees, a standard to which, in theory, the United States was already committed.  But the practice was something different, he said.

“The U.S. government adopted an unprecedented program of cooly calculated dehumanizing abuse and physical torment to extract information,” Mr. Zelikow testified (pdf).  “This was a mistake, perhaps a disastrous one.  It was a collective failure, in which a number of officials and members of Congress (and staffers), of both parties played a part, endorsing a CIA program of physical coercion even after the McCain amendment was passed and after the Hamdan decision.  Precisely because this was a collective failure it is all the more important to comprehend it, and learn from it.”

Mr. Zelikow cited two noteworthy official documents in his testimony, though these were not published on the Judiciary Committee web site.  Copies were obtained by Secrecy News.

A June 2005 memorandum (pdf) prepared by Mr. Zelikow and Gordon R. England, the acting deputy secretary of defense, proposed a comprehensive approach to detention, interrogation and prosecution of suspected terrorists, that the authors said would be compatible with existing legal standards.  But their approach was rejected by Defense Secretary Donald Rumsfeld, Mr. Zelikow recalled in his testimony.  The memorandum was reported in the New York Times (Tim Golden, “Detainee Memo Created Divide in White House,” October 1, 2006) and elsewhere was quoted at length in Angler by Barton Gellman (at pp. 347-349), but the document itself has not been made publicly available until now.  See “Elements of Possible Initiative,” June 12, 2005, marked Sensitive But Unclassified.

A second memorandum, authored by Mr. Zelikow and John Bellinger, offered an alternative legal framework predicated on acceptance of the prohibition against “cruel, inhuman, and degrading” treatment.  See “Detainees – The Need for a Stronger Legal Framework” (pdf), July 2005.

By 2006, the terms of the dispute had shifted.  The Administration affirmed the prohibition against “cruel, inhuman, and degrading” treatment, but then embraced an Office of Legal Counsel argument that said the CIA interrogation program, including water boarding and the rest, did not violate the prohibition.  Zelikow’s February 2006 critique of the OLC interpretation is said to be undergoing declassification review.  Since the classification status of that critique is entirely derivative of the now-declassified OLC memos, its full and prompt declassification is to be expected.

AF Spells Out Use of Intel Contingency Funds

A new Air Force instruction (pdf) describes the use of unvouchered “intelligence contingency funds” which may be spent by the Secretary of the Air Force “for any purpose” in support of the Air Force intelligence mission.

Such funds may be expended, for example, to pay for “plaques, mementos, etc.” to be presented “as gifts or incentive awards to foreign officials.”  Contingency funds may also be used “to fund liaison functions with persons not employed by the US Government if they can assist US Air Force organizations to perform intelligence missions.”  However, “The liaison function must be conducted on a modest basis that complies with socially acceptable behavior.”

See “Intelligence Contingency Funds,” Air Force Instruction 14-101, 30 April 2009.

OSC Views North Korea’s Leadership

The leadership of the Democratic People’s Republic of Korea is portrayed in a new chart (pdf) prepared by the DNI Open Source Center (OSC).  The chart includes the names, photographs and titles of dozens of senior North Korean officials, and also presents an illustrated family tree of supreme leader Kim Jong Il.

Like most other OSC products, this document has not been approved for public release, but a copy was obtained by Secrecy News.  See “2009 Democratic People’s Republic of Korea Leadership Chart,” Open Source Center, April 15, 2009.

A schematic rendering of the organization of the North Korean government was given in “DPRK Power Structure Chart” (pdf), Open Source Center, January 2009.

“Controlled Unclassified Info” Policy Is On the Way

A new government-wide policy on “controlled unclassified information” (CUI) is still more than a year away from implementation, but not because of any lack of attention or interest.  To the contrary, it is the subject of rather intensive policy deliberation, officials say, and is not “languishing” as Secrecy News stated on May 11.

CUI refers generally to information that is restricted in some way other than by national security classification.  Because such restrictions have taken many different forms and names — such as sensitive but unclassified, official use only, limited official use, and more than a hundred others — they have also become a disruptive barrier to communication and a source of confusion inside and outside of government.

While the nature of the problem is clear enough (i.e. a reckless proliferation of often arbitrary non-disclosure policies), and the solution is also straightforward in principle (i.e. increased restraint, uniformity and consistency), getting from here to there turns out to be an exceptionally complicated policy problem.  It involves the activities of dozens of federal agencies, as well as state, local, and tribal entities, industry and others.  It encompasses statutory and non-statutory control regimes.  A consensus policy must first be achieved, then translated into implementing regulations, and inculcated through training and education programs.

To gain traction on the problem, officials have broken it down into several sub-categories, including safeguarding policy, document designation, dissemination, and lifecycle (or “decontrol” of the information). Significant headway has been made in several of these areas, one official said.

The Obama Administration is expected to weigh in on the topic in the near future, adding new direction and impetus to the process.  But in any case, a new CUI policy is not expected to be in place before some time in Fiscal Year 2011.

“To undo decades of bad practices is going to take a while,” said William J. Bosanko, the director of the Information Security Oversight Office who is also leading the interagency CUI reform effort.

Some New Army Field Manuals

Noteworthy new additions to the literature of U.S. Army Field Manuals include the following (all pdf).

“Security Force Assistance,” FM 3-07.1, May 2009 (on support to foreign security forces).

“Legal Support to the Operational Army,” FM 1-04, April 2009 (including detainee and stability operations, but excluding the law of armed conflict).

“Visual Information Operations,” FM 6-02.40, March 2009 (referring to military photography, video recording, and the production and use of other visual media).

Iran’s Nuclear Ambitions: A Baseline Assessment

A new report from the Senate Foreign Relations Committee discusses what is known about Iran’s potential for developing nuclear weapons, as well as what is suspected or imagined.

“There is no sign that Iran’s leaders have ordered up a bomb,” the report notes. “But unclassified interviews… make clear that Iran has moved closer to completing the three components for a nuclear weapon–fissile material, warhead design and delivery system,” the report stated.  Resolving suspicions about the potential military aspects of Iran’s nuclear program “will be one of the most difficult [issues] confronting negotiators for the two countries and the international community,” wrote Committee chairman Sen. John Kerry in his transmittal letter.

See “Iran: Where We Are Today,” A Report to the Senate Foreign Relations Committee, May 4, 2009.

Similarly, “We do not know whether Iran currently intends to develop nuclear weapons, although we assess Tehran at a minimum is keeping open the option to develop nuclear weapons by continuing to develop a range of technical capabilities that could be applied to producing nuclear weapons, if a decision is made to do so,” according to another report (pdf) drafted for the U.S. Intelligence Community by the CIA’s Weapons Intelligence, Nonproliferation, and Arms Control Center (WINPAC).

See “Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions, 1 January Through 31 December 2008,” Unclassified Report to Congress, March 2009.

Keeping the Recovery Safe

One year ago today, an earthquake struck the Sichuan Province in China. The earthquake was the 19th deadliest of all time. Early surveys indicate that over 170,000 square miles were affected at a level of “slightly damaging”, and over 1200 square miles on the level of “devastating”. As of May 7th,, 2009, there are 68,712 dead and more than 17,923 missing. With such excessive damage, rebuilding has been required on a massive scale.

In late April of 2009, media outlets reported that families displaced by the Sichuan Earthquake housed in Temporary Housing Units (THUs) were experiencing health related problems due to the buildings. There is speculation that formaldehyde is the culprit. While FAS has no direct evidence to support or discredit this claim, the work we did on air quality in emergency housing built after Hurricane Katrina makes it possible to make some informed guesses about what is happening in China.

To this end, we’ve put together an article looking at the potential indoor air quality problems in China, with proposed solutions moving forward. The paper can be found here.

Court Rebuffs FBI Censorship of Manuscript

A federal court last week rejected most of the objections raised by the Federal Bureau of Investigation to publication of a 500-page manuscript critical of the FBI counterterrorism program that was written by retired FBI Special Agent Robert G. Wright.  The manuscript had been submitted for pre-publication review in October 2001.

“This is a sad and discouraging tale,” wrote Judge Gladys Kessler in a May 6 order (pdf), referring to the FBI’s handling of the manuscript.

“In its efforts to suppress this information, the FBI repeatedly changed its position, presented formalistic objections to release of various portions of the documents in question, admitted finally that much of the material it sought to suppress was in fact in the public domain and had been all along, and now concedes that several of the reasons it originally offered for censorship no longer have any validity,” Judge Kessler observed.

The 41-page, partially redacted court ruling reviewed the facts of the pre-publication review dispute as well as the legal standards for official censorship of such materials, and dismissed all but one government objection to the manuscript.  The court also dismissed other government objections to release of written answers to interview questions submitted by then-New York Times reporter Judith Miller.

Policy on Controlled Unclassified Info Languishes

Three and a half years have passed since President Bush called for the establishment of a standardized government-wide format for the handling of “controlled unclassified information” (CUI) that would replace the dozens of different, incompatible controls on what had been known as “Sensitive But Unclassified” (SBU) information.  More than a year has passed since President Bush declared that the new CUI framework was established.

But in practice, little has changed because the implementing policies and procedures have not yet been devised.  An initial draft for comment is expected sometime this summer.  Meanwhile, agencies continue to follow their previous, often problematic approaches.

“Department of Defense components are not to use any of the new CUI markings until the national level interagency policy has been issued, the DoD-level implementation guidance has been published, and the DoD CUI Transition Plan is completed,” wrote Under Secretary of Defense James R. Clapper, Jr. in an internal memorandum (pdf) last month.  “Until such time, existing policy guidance pertaining to information such as For Official Use Only (FOUO), SBU, and DoD Unclassified Controlled Nuclear Information… must be strictly adhered to,” Gen. Clapper wrote.

The National Archives has requested $1.9 million for the Controlled Unclassified Information Office in FY 2010.  “The office will establish standards and guidance for this type of information, and monitor department and agency compliance.”

Aside from increasing uniformity of controls on information, limits on the authorized use of such controls and other policy provisions remain to be defined.

The Role of the CIA Historical Review Panel

The CIA Historical Review Panel, an advisory group which is composed of academic historians and political scientists, provides the CIA with recommendations on its declassification policies and priorities.  The role of the Panel was described lately by its chairman, Prof. Robert Jervis, in the latest issue of Passport (pdf, at pp. 10-13), the newsletter of the Society for Historians of American Foreign Relations.

Prof. Jervis is a brilliant political scientist, but under his leadership the Historical Review Panel has not been notably effective and his description of the Panel’s activities suggests why this may be so.

As a matter of policy, he writes, the Panel operates in secret and does not disclose “the substance of the recommendations we have made” concerning CIA declassification policy.  Why not?  Because “heads of agencies are entitled to confidential advice.”  But while this may often be true of advice from agency employees, it is not true of all advice from anyone.  Panel members do not work for the CIA.  In fact, they are supposed to represent a broad public interest, not merely a personal or professional self-interest, and so they reasonably could be expected to interact with those they represent.  Instead, by yielding to CIA’s preference for secrecy, the Panel not only severs its connection with its own constituency, it also neutralizes its primary source of leverage, namely public opinion.

Thus Prof. Jervis notes in passing that some recent episodes of “bad publicity” generated by inappropriate CIA reclassification actions had taught agency officials to “realize… [the] high cost” of spurious classification activity.  But since the Historical Review Panel deliberately operates without publicity, it is unlikely to inspire any similar realizations on the part of agency officials.

Prof. Jervis writes that the Panel has “spent hours talking to top CIA officials” about the declassification of historical intelligence community budget figures, although “I cannot reveal the positions we took.”  But there are a limited number of possibilities here.  If the Panel took the position that historical budget figures should remain classified indefinitely, then indeed it has been marvelously effective.  But if, as seems more likely, Panel members argued that such old budget numbers should be declassified, then its efforts have been in vain.

Declassification advisory panels that include public representation can serve a constructive role in shaping and overseeing agency declassification programs.  But the CIA Historical Review Panel serves mainly as a negative example of how the utility and the influence of such panels can be compromised.

See “The CIA and Declassification: The Role of the Historical Review Panel” by Robert Jervis, Passport, April 2009.