Confronting the White House’s “Monarchical Doctrine”

More and more Americans of all political stripes are concerned that the Bush Administration has exceeded its legal authority by conducting intelligence surveillance outside of what the law permits.

Anxiety over illegal surveillance is heightened by the prospect that an ideologically subservient Congress may not insist on the primacy of law, but will simply defer to the Administration, or authorize whatever the White House wishes.

“The administration’s stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president’s inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act” is a “monarchical doctrine,” wrote columnist George Will today.

“Monarchical” is a curse word in conservative thought, and for an American conservative monarchy is a provocation to revolutionary opposition.

“We cannot continue to claim we are a nation of laws and not of men if our laws, and indeed even the Constitution of the United States itself, may be summarily breached because of some determination of expediency or because the President says, ‘Trust me’,” said Sen. Robert Byrd in a Senate floor statement yesterday.

“I plead with the American public to tune in to what is happening in this country. Please forget the political party with which you may usually be associated and, instead, think about the right of due process, the presumption of innocence, and the right to a private life.”

“This President, in my judgment, may have broken the law and most certainly has violated the spirit of the Constitution and the public trust,” Sen. Byrd said.

In an unusual rebuke, the American Bar Association this week found it necessary to urge President Bush to comply with the law.

“The American Bar Association calls upon the President to abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees.”

See the report of the American Bar Association Task Force on Domestic Surveillance in the Fight Against Terrorism.

The Vice President’s Declassification Authority

“Is it your view that a Vice President has the authority to declassify information?” Vice President Cheney was asked yesterday by Fox News’ Brit Hume.

“There is an executive order to that effect,” replied the Vice President.

This was a simple answer to a straightforward question, but the matter is actually a bit more complicated.

The executive order in question is E.O. 13292 on classified national security information, issued by President Bush in March 2003.

It states in section 1.3 that “The authority to classify information originally may be exercised only by: (1) the President and, in the performance of executive duties, the Vice President; (2) agency heads and officials designated by the President in the Federal Register…”

Remarkably, the phrase “and, in the performance of executive duties, the Vice President,” which dramatically elevates the Vice President’s classification authority to that of the President, was added to the executive order in 2003.

Prior to that, the Vice President only had classification authority comparable to that of an agency head, having been delegated such authority in a 1995 presidential order.

So much for classification authority. What about declassification?

Declassification authority is defined in Section 6.1(l) of E.O. 13292. It is granted to: “(1) the official who authorized the original classification…; (2) the originator’s current successor in function; (3) a supervisory official of either; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official.”

So the Vice President has authority to declassify anything that he himself classified. He also clearly has authority to declassify anything generated in the Office of the Vice President, which he supervises.

But is the Vice President, like the President, “a supervisory official” with respect to other executive branch agencies such as the CIA? Did the 2003 amendment to the executive order which elevated the Vice President’s classification authority also grant him declassification authority comparable to the President’s?

“The answer is not obvious,” said one executive branch expert on classification policy.

In the News

“Since the Sept. 11 attacks, the number of insiders alleging wrongdoing in government – either through whistle-blower channels or directly to the press – has surged, as have reprisals against them.”

See “A surge in whistle-blowing … and reprisals” by Gail Russell Chaddock, Christian Science Monitor, February 16, 2006.

“If the Bush administration’s interpretation of espionage law is upheld, then everyone is breaking the law, all the time.” That’s the conclusion that emerges from the Bush Administration’s unprecedented use of the Espionage Act to prosecute non-government employees for mishandling classified information.

See “You’re a Spy” by Fred Kaplan, Slate, February 15, 2006.

Jack Shafer sorts out what appeared to be an early post-9/11 disclosure of warrantless domestic surveillance, and takes a poke at DCIA Porter Goss for flogging discredited leak allegations.

See “NSA Scoop or Just Bad Writing?” by Jack Shafer, Slate, February 15, 2006.

Hearing on ABLE DANGER

The ABLE DANGER data mining program was the subject of a House Armed Service Committee hearing yesterday featuring testimony from Under Secretary of Defense for Intelligence Stephen A. Cambone.

“Members must decide for themselves what to believe from the testimony presented today — there will be some inconsistencies,” cautioned Rep. Jim Saxton, who co-chaired the hearing.

The prepared testimony from that February 15 hearing is available on the Federation of American Scientists web site.

CRS on Data Mining

A recently updated report from the Congressional Research Service addresses data mining — what it is, what it can and cannot do, and some of the controversies that have arisen around it.

(The CRS report was issued before recent reporting by Newsweek on the “Topsail” data mining program, and by the Christian Science Monitor on the “Advise” program. H/T to

A copy of the CRS report was obtained by Secrecy News.

See “Data Mining and Homeland Security: An Overview,” updated January 27, 2006.

Nuclear Secrecy Impedes Oversight of HEU Exports, Critics Say

The Nuclear Regulatory Commission is no longer disclosing the amounts of highly enriched uranium (HEU) that are sought for export to foreign research reactors, prompting complaints that the new non-disclosure policy undermines effective oversight of the traffic in nuclear weapons-grade material.

“Under prior longstanding policy the Commission publicly disclosed such information, and this enabled the public to submit comments that in several cases demonstrated to the Commission that an applicant had requested an amount of HEU exceeding its documented need,” wrote Alan J. Kuperman of the University of Texas at Austin and Paul Leventhal of the Nuclear Control Institute.

“In these [prior] cases, either the application was withdrawn, the Commission reduced the amount approved for export, or the Commission required that the approved amount be exported only in small tranches as the applicant subsequently demonstrated imminent need — to avoid the accumulation of surplus HEU by the applicant.”

But the opportunity for meaningful public comment on two pending applications for export of HEU — to Belgium and to Canada — “has been vitiated by the Commission’s new policy of withholding from the public both the amount of HEU requested and the applicant’s documentation that its existing inventory of HEU is insufficient to satisfy its imminent needs,” wrote Kuperman and Leventhal.

See their February 13, 2006, letter to the Nuclear Regulatory Commission here.

DOE Manual on Information Security

The Department of Energy recently approved a comprehensive manual on procedures for protecting all manner of classified or controlled information in the Department’s possession.

From RD (Restricted Data) and FRD (Formerly Restricted Data) to SAPs (Special Access Programs) and SPECATs (Special Category programs), it’s all in there. (Or almost all. A complete roster of all of the “sigma” categories of nuclear information is not included.)

The manual has not been readily available online, but a copy was obtained was obtained by Secrecy News and posted on the Federation of American Scientists web site.

See “Information Security,” DOE Manual 470.4-4, approved August 26, 2005 (2 MB PDF file).

Public Interest Declassification Board to Meet

Equipped with a one million dollar budget for the current fiscal year, the Public Interest Declassification Board will hold its first meeting on Saturday, February 25.

The Board, which serves a purely advisory function and does not have independent declassification authority, is chaired by L. Britt Snider, the former CIA Inspector General, and supported by the Information Security Oversight Office, which serves as executive secretariat.

The first meeting will be devoted mainly to administrative matters and will not be open to the public. A press release may be issued following the meeting, an official said. The Board is not subject to the Federal Advisory Committee Act.

The Bush Administration requested $655,000 for the Public Interest Declassification Board in Fiscal Year 2007.

In the News

The challenges posed by so-called “sensitive but unclassified” information, and Administration efforts to bring order to this problematic policy area, were explored in “Government withholds ‘sensitive-but-unclassified’ information” by Lance Gay, Scripps Howard News Service, February 2, 2006.

The consequences of the government’s unprecedented use of the Espionage Act to prosecute non-governmental employees for mishandling classified information in the AIPAC case were considered in “Big Impact Seen In Israel Spy Case” by Josh Gerstein, New York Sun, February 13, 2006.