Some Recent Congressional Publications

Noteworthy new congressional reports and hearing volumes include the following:

“Report on Whistleblower Protection Enhancement Act of 2009,” Senate Homeland Security and Governmental Affairs Committee, Report No. 111-101, December 3, 2009.

“Report on the USA PATRIOT Act Sunset Extension Act of 2009,” Senate Judiciary Committee report 111-92, October 28, 2009.

“National Industrial Security Program: Addressing the Implications of Globalization and Foreign Ownership for the Defense Industrial Base” (pdf), House Armed Services Committee, April 16, 2008 (published November 2009).

“Upholding the Principle of Habeas Corpus for Detainees” (large pdf), House Armed Services Committee, July 26, 2007 (published November 2009).

IC “Scrambles” To Comply with Open Govt Directive

The U.S. intelligence community is not exempt from the requirements of the Obama Administration’s December 8 Open Government Directive, and agency officials are now trying to figure out how to comply with it.

“As you can imagine, there is some scrambling going on,” one official said.  “I think it’s a good sign.”

See “Open government could present a challenge to intelligence agencies” by Aliya Sternstein, NextGov, December 11, 2009.

CRS: “Not a Happy Place”

The Congressional Research Service, which performs policy research and analysis for Congress, is “not a happy place these days,” said a CRS staffer.

The staffer was referring to the fact that a respected CRS division chief, Morris Davis, had been abruptly fired from his position for publicly expressing some of his private opinions.  (“CRS Fires a Division Chief,” Secrecy News, December 4, 2009).  CRS Director Daniel Mulhollan, the man who fired Mr. Davis (it’s Colonel Davis, actually), evidently believes that CRS employees must have no independent public persona and must not express private opinions in public, even when such opinions are unrelated to their work at CRS, as in Davis’ case.  In short, CRS employees are expected to surrender their First Amendment rights.  Who could be happy with that?

The American Civil Liberties Union has taken up Col. Davis’ cause and in a December 4 letter (pdf), ACLU attorneys Aden Fine and Jameel Jaffer asked the Library of Congress (CRS’ parent organization) to reconsider its position by today, or else risk litigation seeking Davis’ reinstatement.  But it takes a special kind of integrity to admit error and to change course, and that is not the anticipated scenario in this case.

(Update: As expected, the Library of Congress refused to reconsider its position, setting the stage for a lawsuit. See the ACLU news release and the Library response here.)

“In spite of all that, I still believe we do excellent research,” the CRS staffer told Secrecy News.  Yet that research is still not made directly accessible to the public.

In the 2010 Legislative Branch Appropriations Act, Congress once again mandated that “no part of [the CRS budget] may be used to pay any salary or expense” to make CRS research reports available to the public without prior authorization.  This was obviously intended to block direct public access to CRS reports.  But it could also be read more satisfactorily to permit CRS employees to freely distribute CRS reports as long as they incur no additional expense when doing so.

Some notable new CRS reports obtained by Secrecy News include the following (all pdf).

“Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping,” updated December 3, 2009.

“U.S. Arms Sales: Agreements with and Deliveries to Major Clients, 2001-2008,” December 2, 2009.

“War in Afghanistan: Strategy, Military Operations, and Issues for Congress,” December 3, 2009.

“The German Economy and U.S.-German Economic Relations,” November 30, 2009.

“Sexual Violence in African Conflicts,” November 25, 2009.

“Traumatic Brain Injury: Care and Treatment of Operation Enduring Freedom and Operation Iraqi Freedom Veterans,” November 25, 2009.

“Key Issues in Derivatives Reform,” December 1, 2009.

“U.S. Aerospace Manufacturing: Industry Overview and Prospects,” December 3, 2009.

“High Speed Rail (HSR) in the United States,” December 8, 2009.

Confronting Controlled Unclassified Info

The Obama Administration is expected to provide some new insight this week into its emerging policy on “controlled unclassified information” (CUI), referring to unclassified information that is withheld from disclosure for reasons of law or regulation.

Because of the indiscriminate use of such controls, information is often withheld unnecessarily from the public and information sharing within the government is often needlessly obstructed.

In a neat illustration of the undisciplined use of information controls, the Washington Times reported last week that even though some U.S. Capitol Police documents that were marked “law enforcement sensitive” were inadvertently disclosed, this did not pose any threat to public safety.  That’s because the use of the control marking was “a standard practice,” according to Police officials, rather than a reliable indication that the documents were actually sensitive.

Sgt. Kimberly Schneider of the Capitol Police explained that the “law enforcement sensitive” marking “does not necessarily indicate that the information contained there is such.”  See “Capitol Police Papers Found on Street” by Jim McElhatton, Washington Times, December 7, 2009.

Last August 25, an interagency task force transmitted a report to President Obama that presented recommendations for limiting the use of controls on unclassified information.  The White House is expected to release that report this week, though the issuance of a new CUI policy is still likely to be some months away.

Update: The August 25 Report of the Presidential Task Force on Controlled Unclassified Information has now been released.

Openness Initiative Begins to Take Root

The Obama Administration’s new open government policy has begun to elicit a response from executive branch agencies.  The Department of Defense, the Department of Justice, and other agencies issued news releases yesterday outlining the initial steps they are taking to fulfill the December 8 White House Open Government Directive (pdf).

The White House Office of Science and Technology Policy posted a request for public comment on how to enhance public access to federally-funded science and technology research.  Beginning today, “The Administration is seeking public input on access to publicly-funded research results, such as those that appear in academic and scholarly journal articles. Currently, the National Institutes of Health require that research funded by its grants be made available to the public online at no charge within 12 months of publication. The Administration is seeking views as to whether this policy should be extended to other science agencies and, if so, how it should be implemented.”

Most national security and intelligence agencies, however, met the new Open Government Directive with silence, as if it did not concern them.

But many such agencies maintain unclassified databases that are potentially of great public interest, and that ought to be broadly accessible.  We have nominated two candidates in particular for disclosure under the new open government policy.

First, there is CREST (CIA Records Search Tool), the CIA’s database of declassified historical records.  It contains millions of pages of redacted records that have already been processed for public release.  CREST is available at the National Archives in College Park, MD.  Yet the CIA has refused to publish CREST online, or to release a copy to others so that they could.  Now would be an opportune time to do so.  (See “CREST Leaves Cavity in Public Domain,” Secrecy News, April 6, 2009).

Another major record group that we believe ought to be public are the unclassified reports and analyses of the Director of National Intelligence’s Open Source Center.  This is a slightly more complicated case since many OSC products include copyrighted material that cannot readily be published without permission.  But many other OSC products are purely discursive and analytical and could be published without difficulty if there were a will to do so.  A selection of OSC products that were obtained by Secrecy News may be found here.

Writing on the White House blog yesterday, Special Counsel to the President Norm Eisen and Open Government Initiative Director Beth Noveck offered their view on “Why an Open Government Matters.”

Disclosure of TSA Manual Stirs Leak Anxiety

The inadvertent disclosure of a “sensitive” Transportation Security Administration manual on procedures for screening airline passengers has prompted renewed interest in legal remedies and penalties that may be available to the government to minimize the impact of such unauthorized disclosures.

In a letter (pdf) to the Department of Homeland Security yesterday, several Republican lawmakers asked:  What can be done to prevent the continued publication of such material on non-governmental web sites (such as and

“How has the Department of Homeland Security and the Transportation Security Administration addressed the repeated reposting of this security manual to other websites and what legal action, if any, can be taken to compel its removal?” wrote Reps. Peter T. King (R-NY), Charles W. Dent (R-PA) and Gus M. Bilirakis (R-FL).

“Is the Department considering issuing new regulations pursuant to its authority in section 114 of title 49, United States Code, and are criminal penalties necessary or desirable to ensure such information is not reposted in the future?”

The short answer seems to be that existing legal authorities cannot easily be used to compel the removal of such records from public websites, and that any attempt to do so would likely be counterproductive, and would itself do damage to press freedom and other societal values.

Meanwhile, conservative talk show host Rush Limbaugh yesterday lashed out at the Federation of American Scientists in his own commentary on the TSA Manual disclosure.

“What an unmitigated disaster this is,” he said.  “Every day it’s something, every day is an unmitigated disaster.  ‘The original version of the manual [is] still available online preserved by websites that monitor government secrecy and computer security’ [a quote from the Washington Post], which tells you all you need to know about the motives of these sites, such as the so-called watchdogs at the Federation of American Scientists.”

This is not as gratifying as it might have been, since FAS had nothing to do with the disclosure of the TSA Manual.  In fact, had we been the ones to discover the unredacted Manual, we probably would have refrained from publishing it.

In 2005, the National Security Agency published a tutorial on how to properly redact and publish sensitive documents.  See “Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF” (pdf).

Buildings Energy Efficiency: A Necessary Consideration at Copenhagen

Over the opening days of the Copenhagen Climate Negotiations, which began this Monday, each country has been asked to consider how it can contribute to the 25-40% carbon emission reductions climate scientists believe to be necessary to keep climate change below the 2C mark.  Key issues at stake for the 170 nations represented include commitments to national and international carbon reduction emissions, financing of clean technologies and carbon emission reductions, and technology transfer to non-industrialized nations.   Leading up to the Copenhagen climate summit, deforestation has been primary focus of discussion as deforestation accounts for one-fifth of global carbon emissions and halting deforestation involves large financial investment, but no fundamental consumer behavior changes.  And with a Reducing Emissions from Deforestation and Degradation (REDD) agreement, developed nations would pay developing countries to not cut down their rainforests by treating the standing forest as a valuable commodity.  Such an agreement, if properly financed and implemented, will be necessary to meet global carbon emissions goals and avoid the numerous ecosystem and climate hazards associated with deforestation.

However, in order to meet national greenhouse gas abatement goals and make the economic and structural changes necessary to avoid or mitigate large-scale climate change consequences, industrialized countries must reduce both their total energy consumption and energy intensity.

Consuming 40% of all energy in the US and Europe and 30-40% worldwide, the building sector is one of the least energy efficient sectors and one in which efficiency investment has been generally highly fragmented, relying n the US on individual owners to finance energy efficiency new construction and retrofits.  Yet for many countries, especially the US and the European nations, cutting buildings sector consumption is not only essential to meeting these goals, but is also one of the most cost effective energy saving measures available (see the table from McKinsey, below). Furthermore, analysis by the World Business Council for Sustainable Development (WBCSD) indicates that market-driven reform can reduce building energy use by 60% by 2050, but will require a concerted and immediate effort on the part of industry, government, code and standard making bodies, and labor in order to achieve.

Graph demonstrating the cost effectiveness of buildings energy efficiency (McKinsey)

Looking at energy use in the residential sector as a case study, according to the 2005 Residential Energy Consumption Survey 59% of houses in the US were built before 1980 and in the vast majority of cases have not been substantively renovated or retrofitted. These hugely inefficient houses feature little or no insulation in the attics, walls, and foundations, inefficient HVAC systems, leaky ducts, poor air sealing, outdated windows and doors, and are often expensive to operate due to high energy waste rates, especially during peak heating and cooling periods.

US households spend on average just over $1800 annually on house energy consumption, with over 40% of that energy consumed in maintaining thermal comfort through space heating and air conditioning. However, energy consumption reductions of up to 50% have been proved cost effective in both the retrofit and new housing market by focusing on insulating and air sealing to reduce heating and cooling costs.  In the retrofit market, the efficacy of energy efficiency retrofits in decreasing annual operating costs of a building through energy savings is supported by analysis of the DOE Weatherization Assistance Program.  Independent reports conclude that for every $1 spent to weatherize a house (up to $5000 under the current program), the occupants save $1.67 in utility costs, a savings achieved through measures such as adding insulation, air sealing, installing airtight doors and windows, and occasionally upgrading HVAC equipment and ducts.

In the new homes market, Habitat for Humanity affiliates across the country have succeeded in building affordable housing units that are up to 50% more energy efficient to operate (achieving HERS scores in the low to mid-50s), feature materials with low embodied energy, and are cost-effective, saving the families hundreds of dollars per year in operating costs. (To see case studies on high performance Habitat building, see upcoming FAS report titled “Habitat for Humanity High Performance Building Guide”.)

The US Federal Government has begun to address the need for improved energy efficiency in the building sector through legislation in areas such as:  investments in weatherization (the American Recovery and Reinvestment Act of 2009), commercial and residential energy efficiency tax credits (among others, the Energy Improvement and Extension Act of 2008), federally backed energy efficient mortgages, and setting energy use goals and standards for federal buildings (the Energy Policy Act of 2005 and Executive Order 13423 of 2009).  However, all current US energy legislation will save only a fraction of President Obama’s recently announced target of 17% energy savings by 2020.  My comparison, the European Commission has just tentatively approved an “Energy Performance of Buildings Directive,” which mandates that all new construction be “near zero energy”; this directive is estimated to have the potential to reduce the EU’s greenhouse gas emissions by 70% of their energy savings target of 20% by 2020.

In order to fulfill any promises that are made at Copenhagen over the coming days and weeks, the US will need to set an ambitious buildings energy efficiency target akin to that approved by the European Commission.  This target must be supported by both public and private action and investment, including:  government legislation, incentives, and workforce training; private sector financial investment and the development of a strong, competitive, energy efficiency market; technological innovation both from industry and the national labs; and the rapid development and deployment of high performing building energy codes and standards.

Issue Brief: Calculating the Capacity at Fordow

While the construction and the announcement of Iran’s Fordow Fuel Enrichment Plant, does not prove an intention to deceive the International Atomic Energy Agency (IAEA), it raises troubling questions. The facility is too small for a commercial enrichment facility, raising concerns that it might be intended as a covert facility to produce highly enriched uranium for weapons. Read the issue brief here (PDF).

Calculating the Capacity of Fordow – Updated Issue Brief Posted

Issue Brief: Calculating the Capacity of Fordow

by Ivanka Barzashka

We have posted an updated version of our latest Issue Brief “Calculating the Capacity of Fordow” – the technical appendix to our November 23 article “A Technical Evaluation of the Fordow Fuel Enrichment Plant” published in the Bulletin of the Atomic Scientists.

This is the document summary:

This brief serves as a technical appendix to our November 23 article in the Bulletin of the Atomic Scientists, which premised that Iran’s Fordow enrichment plant is well-sized neither for a commercial nor military program. We concluded that Fordow may be one of several facilities planned. Our estimates of the plant’s capacity are based on current performance of IR-1 centrifuges at Natanz. Underlying our assessment is a calculation of the effective separative capacity per machine of 0.44 kg-SWU/year. This result is based on IAEA data, which we consider as the most credible open-source information on Iran’s nuclear program. Our estimate for the IR-1 performance is significantly lower than values published in the literature, which cannot account for the current performance of Natanz. We argue that, despite Iranian rhetoric, Tehran’s strategic planning for Fordow is based on actual enrichment performance rather than on desired results. Continue reading

New Directive Would Foster Open Government

In a conscious and far-reaching attempt to change the culture of secrecy that prevails within many government agencies, the Obama Administration today issued a directive (pdf) that orders each federal agency to establish an open government program with mandatory new information disclosure obligations as well as opportunities for public participation.

Moving beyond the familiar rhetoric of openness, the directive imposes substantive new publication requirements, sets deadlines, promotes sharing of best practices, and promises further steps to come.

So, for example, within 45 days each agency is obliged to publish online “at least three high-value data sets” that have not been previously available online.  Within 60 days, each agency must establish a portal for public access to its open government activities, including provision for public feedback and input.  Within 90 days, OMB will issue guidance on the use of new incentives to promote further openness.

The new directive does not extend to classified national security information or controlled unclassified information, both of which are to be addressed in other pending executive orders.  But it does direct agencies to reduce any backlogs in Freedom of Information Act requests “by ten percent each year.”

Significantly, the new open government policy directive did not emerge from the exercise of “checks and balances” by the other branches of government.  Congress did not urge the Administration to promote a culture of openness, much less compel its adoption.  Instead, it is a unilateral executive branch effort, akin in its conception to Energy Secretary Hazel O’Leary’s landmark Openness Initiative of the 1990s, but now extended for the first time to the entire executive branch.

Success is not guaranteed.

The previous Administration used to invoke the theory of “the unitary executive,” which generally holds that all executive branch power and authority is vested in the President.  But the opposite may be closer to the real state of affairs, in the sense that the exercise of presidential authority is dependent on innumerable acts of compliance by scattered officials any of whom can, whether through disobedience or incompetence, frustrate the implementation of policy.  And the more ambitious the proposed change, the more likely it is to encounter resistance.

The directive is also predicated on the existence of a significant number of citizens who are motivated to engage in public policy deliberations and who are capable of doing so. The quality of public comments on the development of the open government directive last summer, which sometimes suffered from digressions into extraneous matters, was not consistently encouraging on that score.

The declared objective of the new directive is “to create an unprecedented and sustained level of openness and accountability in every agency,” and it shows every sign of good faith in attempting to realize that objective.  In any case, given the directive’s well-defined milestones and deadlines, it will soon be clear whether and to what extent the new openness initiative succeeds.