AIPAC Court Denies Amicus Standing to Reporters Committee

The judge who presides over the prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly mishandling classified information has rejected a request from the Reporters Committee for Freedom of the Press to present an amicus curiae (“friend of the court”) brief on the profound constitutional concerns raised by the case.

“Defendants are ably and energetically represented by counsel experienced in all facets of the case, including the constitutional challenge,” wrote Judge T.S. Ellis, III.

“This prosecution is not the appropriate procedural context in which various elements of society should debate the constitutional validity or wisdom of [the Espionage Act],” the Judge wrote.

See his February 27, 2006 order.

More information on the Reporters Committee view of the case may be found here.

Parade Magazine on Secrecy

Parade Magazine, the Sunday supplement that is inserted into newspapers all over the country, turned its attention last week from celebrity romance and dieting tips to the problem of government secrecy.

“Concerns about overclassification cut across ideological and party lines,” according to Parade.

“Besides alienating Americans from their government, the result is that many debates today are little more than rhetoric and smears, because information explaining how a policy was decided isn’t available.”

The Parade article serves as a kind of overture to Sunshine Week, March 13-17, which is an initiative by media organizations and others to focus public attention on the defects of unchecked government secrecy.

See “Are They Taking Away Our Freedoms?” by Lyric Wallwork Winik, Parade, February 26.

Furor Over Reclassification Grows

Anyone can purchase a copy of the 1958 Department of Defense “Emergency Plans Book,” an early cold war description of response planning for a nuclear attack on the United States. It is available for sale through and elsewhere under the somewhat lurid title “The Doomsday Scenario” (Motorbooks International, 2002).

But don’t look for it at the National Archives, where author L. Douglas Keeney originally obtained it in 1997, because it is no longer there. It is among the thousands of government documents that have been reclassified and withdrawn from public access.

“When I returned in 2005 for another round of research in the Secretary of the Air Force Files, RG [record group] 340, the boxes were decimated,” Mr. Keeney told Secrecy News. “100% of the documents I retrieved 9 years ago were gone.”

In their place, he found a “withdrawal notice” (pdf) of the sort that has been quietly proliferating at the National Archives. An official stamp ironically certifies that the withdrawal notice itself is declassified and may be safely disclosed.

The documents in this case were removed from public access in 1997, near the beginning of the ongoing reclassification process that has undermined the integrity of the National Archives.

If it cannot be halted and reversed, bureaucratically-driven reclassification threatens to reduce the Archives to a mere repository of officially-sanctioned history.

“Those who control the past control the future, Orwell famously wrote in ‘1984’,” recalled Fred Kaplan in an article in Slate that supplied some of the back story of the reclassification initiative.

See “Secret Again: The absurd scheme to reclassify documents” by Fred Kaplan, Slate, February 23.

The continuing assault on history was also reported in “U.S. reclassifies government memos” by Andrea Mitchell, NBC News, February 24.

“This effort to stuff this harmless toothpaste back into the tube would be funny if it weren’t so emblematic of a disturbing new culture of government secrecy,” a Washington Post editorial opined. See “Classifying Toothpaste,” February 27.

Resistance to Online Secrecy Builds

Confronted by a government that seems intent on erecting unnecessary new barriers to public access, members of the public are not entirely without resources to oppose such barriers, and even to overcome them.

“Decrying secrecy, citizen groups fight back” is the thrilling headline of a story by reporter Aliya Sternstein in Federal Computer Week today (2/27/06) which explores the withdrawal of government information from the world wide web, and the public response.

“More federal agencies are taking data off the Web, while citizens seek ways to restore public access,” as described in the article.

“The concerted use of the Freedom of Information Act by public interest groups and their constituents” offers one way of recovering public access to official information that has been removed from government websites, advises law professor and librarian Susan Nevelow Mart in a new paper.

See “Let the People Know the Facts: Can Government Information Removed from the Internet Be Reclaimed?” (pdf), Law Library Journal, Volume 98, No. 1 (2006).

CDC Policy on “Sensitive But Unclassified”

The Centers for Disease Control and Prevention (CDC) has updated and revised its policy on “sensitive but unclassified” (SBU) information, the increasingly common twilight category of information that is neither classified nor publicly released.

“Marking information SBU does not automatically qualify it for a public release exemption,” the CDC policy observes. (There is no “SBU exemption” to the Freedom of Information Act.)

On the other hand, “the absence of the SBU or other related marking does not necessarily mean the information should be publicly released.”

“Therefore, all information should be reviewed and approved prior to its public release,” the CDC instructs.

A copy of the revised SBU policy was posted on the CDC intranet and obtained by Secrecy News.

The Government Accountability Office will publish a major report on the use of Sensitive But Unclassified control markings next month.

National Archives Responds to Reclassification

Responding to a February 21 New York Times story indicating that thousands of declassified documents had been reclassified by executive branch agencies and removed from public access in questionable circumstances, the National Archives and Records Administration (NARA) announced yesterday that an official investigation into the matter was underway.

An audit is being conducted by the Information Security Oversight Office, a NARA component, to determine the number of documents that have been withdrawn, the authorization and justification for the withdrawal, and the appropriateness of the reclassification action.

(Agencies dispute that any documents have been “reclassified.” Instead, they contend, the withdrawn records were never properly declassified and so have remained classified all along.)

“The audit will result in a public report designed to provide the greatest feasible degree of transparency to this classification activity,” NARA said. “It is anticipated that the report will be available within the next 60 days.”

See “The National Archives Responds to Reclassification of Documents,” NARA news release, February 22.

The reclassification issue is more than a minor bureaucratic glitch. It has become a threat to the integrity of the entire national security classification and declassification program.

It would not be surprising if there were isolated cases of mistaken declassification. But because many of the now-withdrawn documents are widely available in the public domain, on the National Security Archive web site and elsewhere, anyone can see that the authority to reclassify and remove them has been improperly exercised in many cases. Government officials have admitted as much.

“If those sample records [reviewed by the Information Security Oversight Office] were removed because somebody thought they were classified, I’m shocked and disappointed,” ISOO Director Bill Leonard told the New York Times. “It just boggles the mind.”

But if records were mistakenly withdrawn in this case, what confidence can anyone have that classification authority is being properly invoked, for example, in the ongoing review of declassified historical records conducted by the Department of Energy? That review, conducted under the 1999 Kyl/Lott amendment, has also led to the removal of many thousands of DOE and other agency records that supposedly contain classified nuclear weapons information.

And what about Bush Administration classification of present-day records, which has accelerated to a record high level? How credible are those classification actions?

Finally, what is the role of the National Archives? Is NARA the guardian of public access to historical records? Or has it become a passive accomplice to the classification abuses of other agencies?

Rep. Christopher Shays (R-CT) announced that his House Government Reform subcommittee on National Security will hold a third hearing on classification policy on March 14.

Reclassification and the Espionage Act

Could the National Security Archive be prosecuted under the Espionage Act for publishing historical documents that U.S. intelligence agencies now say are classified?

Could Secretary of State Condoleezza Rice be detained for continuing to publish historical intelligence records on the State Department web site that the CIA has flagged as classified?

Could thousands of historians and librarians around the country be arrested for retaining and circulating volumes of the State Department’s Foreign Relations of the United States (FRUS) series that are now considered to contain classified documents?

These seem to be silly questions.

And yet the theory of the Espionage Act that has been adopted by the government in its prosecution of two former officials of the American Israel Public Affairs Committee (who are not charged with espionage) may extend even to silly cases such as these.

The Espionage Act’s prohibitions on the unauthorized retention and transmission of national defense information apply to “whoever” may violate them, the government insisted in a January 30 motion.

“Whoever means, ‘no matter who’,” the government contended. “The statute covers ‘anyone’.”

Until now, the Espionage Act has never been interpreted this broadly, and for good reason. Using the Act to penalize the public receipt and distribution of government information leads to absurd conclusions.

Justice Department Declassification Plan

The Department of Justice described its progress towards meeting the December 31, 2006 deadline for automatic declassification of 25 year old historical records in an updated Declassification Plan submitted to the Information Security Oversight Office last year.

Significant exemptions to the automatic declassification program have been sought by the FBI and the DoJ Office of Intelligence Policy and Review. Otherwise some 30 million pages of DoJ records have been subjected to declassification review in recent years.

A copy of the Plan was obtained under the Freedom of Information Act by Michael Ravnitzky.

See “2003 Declassification Plan (Revised October 27, 2005),” U.S. Department of Justice.

Selected CRS Reports on National Security Policy

Some notable, newly updated reports of the Congressional Research Service, obtained by Secrecy News and published on the Federation of American Scientists web site, include the following:

“Conventional Warheads For Long-Range Ballistic Missiles: Background and Issues for Congress,” updated February 13, 2006.

“U.S. Nuclear Weapons: Changes in Policy and Force Structure,”
updated January 27, 2006.

“U.S. Armed Forces Abroad: Selected Congressional Roll Call Votes Since 1982,” updated January 27, 2006.

“Interrogation of Detainees: Overview of the McCain Amendment,” updated January 24, 2006:

Schopenhauer and Unconscious Thought

“Contrary to conventional wisdom, it is not always advantageous to engage in thorough conscious deliberation before choosing,” according to a paper published in the latest issue of Science magazine.

Unconscious thought, defined as “thought or deliberation in the absence of conscious attention directed at the problem,” can sometimes yield superior results, University of Amsterdam psychologists found. And they suggest that the same effect can be “generalize[d] to other types of choices — political, managerial, or otherwise.”

See “On Making the Right Choice: The Deliberation-Without-Attention Effect” by Ap Dijksterhuis, et al, Science, vol. 311, 17 February 2006 (free abstract).

So does that mean that the processes of political deliberation should be restructured to place greater emphasis on intuition and “hunches”? Not exactly.

The strengths and limits of “unconscious thought” were considered by author Sue Halpern in a review of Malcolm Gladwell’s book “Blink” in the New York Review of Books (April 28, 2005).

“Intuition is often understood as an antithesis to analytic decision-making, as something inherently nonanalytic or preanalytic,” Halpern quotes neuropsychologist Elkhonon Goldberg. “But in reality, intuition is the condensation of vast prior analytic experience; it is analysis compressed and crystallized.”

In other words, the productivity of “unconscious thought” is probably dependent upon all of the conscious thought, analysis and experience that precedes it.

(Making a similar point, a favorite teacher once advised that “It is one thing for Aldous Huxley to take LSD,” since Huxley was immensely learned. “It is something else for you to do it.”)

“The possibility of unconscious thought (as well as the term) was explicitly used for the first time by Schopenhauer,” write Dijksterhuis et al in their new Science paper.

The German philosopher Arthur Schopenhauer (1788-1860) was also credited by Freud as a forerunner of psychoanalysis.

“Schopenhauer argued at length, and with a psychological insight which was altogether unprecedented, that empirical evidence points to the conclusion not only that most of our thoughts and feelings are unknown to us but that the reason for this is a process of repression which is itself unconscious,” wrote Bryan Magee in his magnificent “The Philosophy of Schopenhauer” (Oxford, rev. 1997).

In several respects Schopenhauer was an unsavory character. He had a bad case of anti-semitism which earned him a favorable mention in Hitler’s Mein Kampf.

But Magee does for Schopenhauer what the late Walter Kaufmann did for Nietzsche several decades ago — he makes him intelligible to the non-specialist reader, as well as interesting and, quite unexpectedly, important.

Magee served briefly in British intelligence (to return to more familiar territory) and wrote a quasi-existentialist spy novel called “To Live in Danger” (1960, long out of print) that is not entirely bad.