SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2004, Issue No. 53
June 11, 2004

DEPT OF HOMELAND SECURITY TIGHTENS GRIP ON UNCLASSIFIED INFO

The Department of Homeland Security (DHS) is imposing extraordinary new access controls on unclassified information that it deems "for official use only" (FOUO).

The new information policy, which was spelled out in an internal DHS directive last month, imposes several classification-like access restrictions on information that is "sensitive but unclassified."

So, for example, such unclassified information may only be shared with individuals who are determined to have a "need to know" it.

Furthermore, DHS employees and contractors must sign a special Non-Disclosure Agreement before receiving access to unclassified FOUO information.

As far as could be determined, no other executive branch agency systematically requires a non-disclosure agreement for access to unclassified FOUO information.

Secure storage of FOUO information is required, and secure communication by encrypted telephone and fax is encouraged.

In some respects, the new restrictions on unclassified FOUO information are not as onerous than those concerning classified information. For example, a security clearance is not required for access.

But in other respects, the new FOUO information policy is actually more far-reaching than national security classification policy.

Thus, classified information can only be generated by officials who have been authorized by the President, either directly or indirectly by delegation. But any DHS employee or contractor can designate information as FOUO if it falls within eleven broad categories. Moreover, managers and supervisors can also designate additional information as FOUO even if it falls outside of those categories.

Further, the classification system provides for an oversight mechanism through the Information Security Oversight Office. No provision for oversight of the new FOUO policy is included.

Finally, the classification system, with all of its limitations, has a declassification program built into it; by executive order, classified documents are to be automatically declassified with the passage of time. But at the Department of Homeland Security, the FOUO restriction will never lapse unless and until the originating authority so decides.

"Information designated as FOUO will retain its designation until determined otherwise by the originator or a supervisory or management official having program management responsibility over the originator and/or the information." (Sec. 6E).

This is a recipe for uncontrolled accumulation of restricted records.

A copy of the new DHS directive (MD 11042) on "Safeguarding Sensitive But Unclassified (For Official Use Only) Information," dated May 11, 2004, was obtained by Secrecy News through the Freedom of Information Act. See:

(This directive is apparently distinct from the pending DHS procedures for protection of "sensitive homeland security information" [SHSI], which are "at least a month away" from being circulated for external comment, one official said lately.)


SPECIAL OPERATIONS, ILLEGAL COMBATANTS AND RECIPROCITY

The search by Bush Administration lawyers for loopholes in the laws of war that would permit abusive interrogation of prisoners and detainees is problematic for a variety of operational and moral reasons.

Among other things, efforts to circumscribe international standards for the protection of prisoners could ultimately place captured U.S. service members in increased jeopardy.

"Our soldiers used to take comfort in the principle of reciprocity where the laws of war are concerned," wrote Phillip Carter in Slate on June 10. "Now they have to worry about reciprocity from our enemies."

Disputes about the applicability of Prisoner of War status may arise first and foremost with respect to U.S. special operations forces wearing civilian clothing. (The laws of war do not require soldiers to wear uniforms, but they are required to distinguish themselves from the civilian population.)

The underlying body of law and its implications for captured U.S. forces were explored in a recent Military Law Review article.

See "No Shirt, No Shoes, No Status: Uniforms, Distinction, and Special Operations in International Armed Conflict" by Major William H. Ferrell, III, Military Law Review, vol. 178, winter 2003 (thanks to WS) here:

The same issues were thoughtfully considered last year in a George Washington University School of Law Master's Thesis.

See "Nontraditional Uniforms Do Accord Prisoner of War Status for Special Operations Forces" by Robert James Drone, August 31, 2003 (79 pages, 2.7 MB PDF file):


REBUKING ASHCROFT

Attorney General John Ashcroft appeared at an oversight hearing of the Senate Judiciary Committee on June 8 for the first time in 15 months and he was soundly rebuked by the Committee's ranking minority member, Senator Patrick Leahy (D-VT).

"For this democratic republic to work," Senator Leahy said, "we need openness and accountability."

But at the Ashcroft Justice Department, he said, "Documents have been classified, unclassified, and reclassified to score political points rather than for legitimate national security reasons."

Senator Leahy's itemized his numerous complaints in a strongly worded opening statement here:

Attorney General Ashcroft presented his perspective on his Department's achievements here:

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

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