SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 95
September 7, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

Support Secrecy News: http://www.fas.org/static/contrib_sec.jsp

DOD UNVEILS DETAINEE INTERROGATION POLICY

The Department of Defense, having concluded that its interests would be best served by public disclosure, released a new directive on policy towards enemy detainees and a new Army Field Manual on detainee interrogation.

The new detainee policy explicitly bars "cruel, inhumane and degrading" treatment of detainees who are in Defense Department custody and defines a minimum standard of humane care. The new Field Manual identifies 19 interrogation techniques that may be used, three of which are new, and prohibits others.

Army Gen. John Kimmons said that the Pentagon weighed the costs and benefits of classifying portions of the new policy documents, and decided in favor of full public disclosure.

"We initially considered taking the additional techniques I described, the three new ones, and putting them into a classified appendix of some sort to keep them out of the hands of the enemy, who regularly reads our field manuals as a matter of course," he said at a September 6 Pentagon press briefing.

"We weighed that against the needs for transparency and working openly with our coalition partners who don't have access to all of our classified publications...."

"We also felt that even classified techniques, once you use them on the battlefield over time, become increasingly known to your enemies, some of whom are going to be released in due course. And so on balance, in consultation with our combatant commanders, we decided to go this [unclassified] route. We're very comfortable with it; so are our combatant commanders," Gen. Kimmons said.

The new Army Field Manual is still marked "For Official Use Only" (FOUO). But "in the interest of full transparency" the Army released it anyway.

"The 'FOUO' markings are no longer operative," an Army spokesman said.

See "Human Intelligence Collector Operations," Field Manual FM 2-22.3, September 2006 (11 MB PDF file):

See also "Department of Defense Detainee Program," DoD Directive 2310.01E, September 5, 2006:

The Office of the Director of National Intelligence likewise found it advantageous and appropriate to disclose significant new information about 14 "high value detainees" that were formally transferred from the custody of the Central Intelligence Agency to the Department of Defense.

See "Summary of the High Value Terrorist Detainee Program," ODNI, September 6:

See also ODNI "biographies" of the 14 detainees here:

The occasional triumphs and frequent defects of media coverage of the detention and treatment of enemy combatants were reviewed at length by Eric Umansky in "Failures of Imagination," Columbia Journalism Review, September/October 2006:


2007 INTELLIGENCE AUTHORIZATION BILL STALLED

For the second year in a row, the U.S. Senate may fail to enact an intelligence authorization bill, effectively neutering the intelligence oversight process.

"The failure of the Senate to pass intelligence authorization for 2 years threatens to erode the ability of the Intelligence Committee to carry out the mission assigned to it by the Senate," said Sen. Jay Rockefeller (D-WV), the ranking member of the Committee, in a floor statement.

In an effort to compel Senate action on the intelligence bill, Sen. Rockefeller introduced an amendment that would strip out language in the Defense Appropriations bill that provides a nominal authorization for continuing intelligence activities.

See September 6 statements by Sen. Rockefeller and Sen. Dianne Feinstein here:


DHS LISTS "SENSITIVE SECURITY INFORMATION" TITLES

In an attempt to limit unnecessary controls on unclassified information, Congress last year required the Department of Homeland Security to identify by title all DHS documents that were marked as "Sensitive Security Information" (SSI) that may not be publicly disclosed.

In response, the first DHS report to Congress listed approximately one thousand titles that had been marked as SSI between October 1 and December 31, 2005.

A copy of that report has just been released with minor redactions in response to a Freedom of Information Act request from the Federation of American Scientists.

See "Department of Homeland Security Documents Designated in Their Entirety as Sensitive Security Information (SSI), October 1 Thru December 31, 2005" (3.5 MB PDF):


ODDS AND ENDS

The National Archives described progress on a new National Declassification Initiative that has the potential to streamline declassification of historical records by eliminating multiple agency reviews of the same document. See:

Two more Army Field Manuals of specialized interest were published this week:

"Tactics, Techniques, and Procedures (TTPs) for the Joint Network Node-Network (JNN-N)," Field Manual-Interim FMI 6-02.60, September 2006:

"Army Electromagnetic Spectrum Management Operations," Field Manual Interim FMI 6-02.70, September 2006:

Sen. Jon Kyl introduced a bill that would expand the definition of illegal material support to terrorists, modify the Classified Information Procedures Act, and penalize terrorism-related hoaxes. See his introduction of the "Terrorism Prevention Act of 2006" (S. 3848):

The record of the March 31, 2006 Senate Judiciary Committee hearing on a proposal by Sen. Russ Feingold to censure the President has recently been published. See:


LOUIS FISHER ON THE "SOLE ORGAN" DOCTRINE

"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations," according to a statement made in 1800 by John Marshall.

This so-called "sole organ" doctrine has frequently been invoked by the executive branch "to define presidential power broadly in foreign relations and national security, including assertions of an inherent executive power that is not subject to legislative or judicial constraints," writes constitutional scholar Louis Fisher in a new Law Library of Congress study.

"When read in context, however, Marshall's speech does not support an independent, extra-constitutional or exclusive power of the President in foreign relations."

"The concept of an Executive having sole power over foreign relations borrows from other sources, including the British model of a royal prerogative," Fisher concludes.

Fisher's analysis of the sole organ doctrine is the first in a series of new studies of inherent presidential power prepared at the request of Senator Robert Byrd (D-WV). A copy was obtained by Secrecy News.

See "The 'Sole Organ' Doctrine" by Louis Fisher, Law Library of Congress, Studies on Presidential Power in Foreign Relations, Study No. 1, August 2006:

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

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