SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2004, Issue No. 38
April 21, 2004

OVERCOMING SECRECY AT THE CONGRESSIONAL RESEARCH SERVICE

Despite the stubborn opposition of some government officials, public access to reports of the Congressional Research Service (CRS) continues to grow.

Reports of the Congressional Research Service (CRS) were identified as one of the "ten most wanted" categories of government documents that should be -- but are not -- readily available to the public, according to a recent survey by the new coalition OpenTheGovernment.org.

But current congressional leaders like Rep. Bob Ney (R-OH) of the House Committee on House Administration actively oppose allowing direct public access to CRS reports. A formal change to ease the restrictions on CRS publication policy will probably have to await the arrival of a new and different Congress that is more committed to openness and accountability.

In the meantime, it is possible to circumvent and to partially defeat the congressional secrecy policy. Several recent CRS reports, now made available for the first time online, are noted below.

The fact that Congress evidently does not want Americans to read these reports gives them a certain pizzazz, and may actually attract new readers to these sober policy analyses.


THE POLICE FUNCTION IN PEACEKEEPING OPERATIONS (CRS)

"One of the most crucial and difficult tasks in peacekeeping and related stability operations is creating a secure and stable environment, both for the foreign peacekeepers and for the indigenous population."

The alarming security situation in Iraq illustrates the point.

The possibility of establishing a deployable United Nations civilian police corps to support international peacekeeping operations, the available alternatives, and the challenges involved were examined at length in a recently updated Congressional Research Service report.

See "Policing in Peacekeeping and Related Stability Operations: Problems and Proposed Solutions," March 30, 2004 (58 pages):


FOREIGN BALLISTIC AND CRUISE MISSILE PROGRAMS (CRS)

A "current inventory of ballistic and cruise missiles throughout the world and [their] implications for U.S. national security policy" are the subject of another newly updated Congressional Research Service report, based on open sources.

See "Missile Survey: Ballistic and Cruise Missiles of Foreign Countries," March 5, 2004 (42 pages):


US NUCLEAR WEAPONS POLICY AND FORCE STRUCTURE (CRS)

CRS provides an overview of U.S. nuclear weapons policy, force structure and infrastructure in a report that highlights "areas of change and areas of continuity."

See "U.S. Nuclear Weapons: Changes in Policy and Force Structure," updated February 23, 2004 (50 pages):


LA TIMES UNCOVERS THE ROOTS OF US V. REYNOLDS

An extraordinary two-part series in the Los Angeles Times this week examined the questionable roots of the 1953 Supreme Court decision United States v. Reynolds, in which the Court affirmed the "state secrets privilege" and permitted the government to withhold documents regarding a 1948 aircraft crash.

The Court at the time accepted without challenge the government's argument that disclosure of the documents would place "state secrets" in jeopardy. But following declassification of those records 50 years later, no such secrets could be identified. The original government case was fraudulent, the plaintiffs now argue.

In his LA Times series, virtuoso reporter Barry Siegel turned over every relevant rock and interviewed every relevant participant in an effort to understand their perspectives and experiences. He produced an exceptional piece of work that is both probing and empathetic.

See "The Secret of the B29" by Barry Siegel, Los Angeles Times, April 18 and 19, with supporting documents, here:

It is not strictly correct to say that the 1953 Reynolds case "spawned" the state secrets privilege, as the Los Angeles Times editorialized today. (Secrecy News made a similar mistaken assertion a few months ago.) The privilege existed long before it came before the Supreme Court.

Nor would the past, current or future application of the state secrets privilege be affected should it turn out, as it now appears, that the 1953 Reynolds decision was based on false premises.

But what should be called into question is the expanding doctrine of judicial deference, under which judges rely uncritically on the untested assertions of government witnesses. That is where the Reynolds Court went astray.

Selected case files from the continuing dispute over the 1953 Reynolds ruling, which is now being litigated in the eastern district of Pennsylvania, may be found here:


DOMESTIC INTELLIGENCE AND CIVIL LIBERTIES

The problem of information sharing between the CIA and the FBI, and the so-called "wall" between law enforcement and intelligence, are analyzed by Kate Martin of the Center for National Security Studies in a new journal article.

"The 'wall' metaphor is shorthand for the recognition that separate authorities govern law enforcement and foreign intelligence investigations against Americans. Those authorities, written to prevent political spying by the FBI and CIA, always recognized that international terrorism was both a law enforcement and intelligence matter and provided for sharing information between the two communities. The 9/11 failures to share information cannot be laid at the feet of the law."

"While better information and analysis are needed to fight terrorism, there is reason to fear that transforming domestic counterterrorism primarily into an intelligence matter is unlikely to appreciably increase security, but will seriously threaten civil liberties."

Instead of a new domestic intelligence agency, she proposes "an alternative approach that will serve to obtain the intelligence necessary to prevent catastrophic attacks without compromising civil liberties."

See "Domestic Intelligence and Civil Liberties" by Kate Martin, SAIS Review, Winter-Spring 2004:


COORDINATING US COUNTERTERRORISM ANALYSIS

The division of responsibility among several agencies involved in analyzing the threat of terrorism is set forth in an April 13 letter to Congress.

The Terrorist Threat Integration Center (TTIC) "has the primary responsibility in the [US Government] for terrorism analysis (except information relating solely to purely domestic terrorism) and is responsible for the day-to-day terrorism analysis provided to the President and other senior policymakers."

"We presume that all terrorism information has a link to international terrorism unless determined otherwise," the letter stated.

The letter responded to inquiries last year from Senators Susan M. Collins and Carl Levin. It was signed by Tom Ridge (DHS), Robert S. Mueller (FBI), George Tenet (DCI), and John O. Brennan (TTIC). A copy is available here:


SECURITY CLEARANCE RECIPROCITY FALLS SHORT

A security clearance that is granted by one government agency is supposed to be "mutually and reciprocally accepted by all agencies." Often, however, it is not.

"Although reciprocity policy discourages redundant investigation and re-adjudication, more than half of respondents among executive agencies said they routinely request prior background investigations for review," thereby adding weeks or months to the process of transferring personnel between agencies, a new study performed for the Defense Department found.

Also, "There are differences of opinion among executive branch agencies about the reliability of polygraph testing, and these differences prevent mandating reciprocity of polygraph testing across all federal agencies." Willingness to accept the results of another agency's polygraph test often varies from one intelligence agency or special access program to another, the opposite of reciprocity. "The imposition of repeated polygraph testing on persons moving between [intelligence] agencies... was seen as a cost to be borne by the individuals, and by the federal government, for security."

The new study, published by the Defense Personnel Research Center, provides a rare and interesting glimpse into the peculiar workings of the personnel security clearance system.

See "Reciprocity: A Progress Report" by Katherine L. Herbig and Peter R. Nelson, April 2004:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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