SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 125
December 20, 2007

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

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"FOREIGN RELATIONS OF THE U.S." NOT PUBLISHED IN 2007

Updated below

This week marks one full year since publication of the latest print volume of the Foreign Relations of the United States (FRUS) series, the official documentary record of U.S. foreign policy which dates back to the Abraham Lincoln Administration.

Publication of FRUS is required by law (Public Law 102-138) and is supposed to occur "not more than 30 years after the events recorded."

But while FRUS has long lagged behind its 30 year deadline, the failure to publish even a single print volume all year is extraordinary and unprecedented in living memory.

"Let's just say that it didn't happen on my watch that a year would pass without a volume published," said one former State Department official. (Two electronic document collections were posted on the State Department web site earlier this year.)

As recently as June 2007, the State Department was still indicating that "10, possibly 11, volumes were scheduled for publication by the end of the year." But that didn't happen.

In September, FRUS General Editor Edward C. Keefer "expressed regret that this number [of published FRUS volumes] fell short of earlier projections of 2007 volume production due to a series of problems and in spite of the best efforts of the staff to solve them," according to the minutes of a September 2007 meeting of the State Department Advisory Committee on Historical Diplomatic Documentation.

According to one outside source, the situation has been complicated by staff turnover, "indifferent management," and even a pending Inspector General complaint.

In response to an email inquiry from Secrecy News, however, FRUS Editor Keefer wrote that "It is not quite as bad as you think."

"We have two print volumes ready to go," Dr. Keefer said. "The books are overdue from the printer, but we will try to release them before the end of the year."

Dr. Keefer said he would provide a fuller response after the holidays.

An online collection of many of the FRUS volumes dating from 1861 to 1960 has been established at the University of Wisconsin here:

More recent volumes are here:

Update: On December 21, the State Department published two new print volumes of FRUS, along with another electronic document collection.

CONGRESS APPROVES FOIA REFORM BILL

Open government advocates hailed the passage of procedural amendments to the Freedom of Information Act that are intended to improve government responsiveness to FOIA requests and to strengthen the hand of requesters.

The OPEN Government Act, which cleared both the Senate and the House over the past week, "becomes the first major reform to the Freedom of Information Act in more than a decade," said Senator Patrick Leahy (D-VT), the bill's leading co-sponsor in the Senate along with Sen. John Cornyn (R-TX). Rep. William Lacy Clay (D-MO), Rep. Tom Davis (R-VA) and Rep. Henry Waxman (D-CA) led passage in the House.

Among other things, Senator Leahy explained, "This legislation will improve transparency in the Federal Government's FOIA process by: restoring meaningful deadlines for agency action under FOIA; imposing real consequences on Federal agencies for missing FOIA's 20-day statutory deadline; clarifying that FOIA applies to government records held by outside private contractors; establishing a FOIA hotline service for all Federal agencies; and creating a FOIA Ombudsman to provide FOIA requestors and Federal agencies with a meaningful alternative to costly litigation."

For all of its procedural virtues, the OPEN Government Act does not touch the root of government secrecy, namely the decision to withhold information. The Act does not repeal or modify any of the more than one hundred statutory exemptions from disclosure under the FOIA. And it does not address the proper scope or application of the classification system. That is a task for another day.

Coincidentally, the Department of Defense this week issued a proposed new FOIA regulation for public comment. It will presumably have to be revised again to be made consistent with the new Open Government Act.

CLASSIFICATION REFORM BILL INTRODUCED IN HOUSE

Speaking of classification reform, Rep. Jane Harman and 13 Democratic colleagues this week introduced "The Reducing Over-Classification Act of 2007."

The legislation focuses on the Department of Homeland Security and aims to make the Department a model of judicious information policy by curtailing classification and other restrictions on disclosure.

"The goal is simple: make the Department of Homeland Security the 'gold standard' when it comes to preventing over-classification and to limiting the use of sensitive but unclassified markings," Rep. Harman said in a news release.

"DHS is an excellent place to start and -- if it gets a handle on its own burgeoning over- and pseudo-classification addiction-- can become a 'best practices' center and the test bed for the rest of the Federal Government," she said.

The legislation's incremental approach has much to recommend it, though some of the details of the proposed strategy are questionable, obscure or remain to be determined.

It is probably unworkable, for example, to insist on "allow[ing] the classification of documents only after unclassified, shareable versions of intelligence have been produced." Some classified intelligence documents will have no unclassified counterpart, though the use of unclassified "tear sheets" should be encouraged whenever possible.

Other proposed steps, such as establishment of "an independent Department declassification review board to expedite the declassification of documents," could help create new impetus for disclosure.

GOLDSMITH: "EXTREME SECRECY... LED TO A LOT OF MISTAKES"

In October, the Senate Judiciary Committee held a riveting hearing with Jack Goldsmith, the former head of the Justice Department Office of Legal Counsel. The record of that hearing has just been published.

As was widely reported at the time, Mr. Goldsmith challenged the legality of certain aspects of the President's warrantless surveillance program and raised questions about other policies and procedures in the "war on terrorism."

"There's no doubt that the extreme secrecy [surrounding the Terrorist Surveillance Program] -- not getting feedback from experts, and not showing it to experts, and not getting a variety of views, even inside the executive branch -- led to a lot of mistakes," he said.

The PDF version of the hearing record includes Mr. Goldsmith's answers to questions for the record from the Senate Committee members (pp. 38-49). In most cases, he deflected the Senators' pointed questions. But several of the exchanges are interesting nevertheless.

Asked about the Administration's refusal to disclose to Congress the legal memoranda justifying its interrogation program, Mr. Goldsmith stated:

"I believe it is the President's prerogative not to disclose these opinions. And I believe it is the Congress's prerogative to use political pressure to try to force the Executive to disclose the opinions."

See "Preserving the Rule of Law in the Fight Against Terrorism," hearing before the Senate Judiciary Committee, October 2, 2007:

NEW ARMY DOCTRINE ON WMD CIVIL SUPPORT TEAMS

The U.S. Army has issued a new field manual on the use of National Guard units known as "civil support teams" (CST) to respond to domestic terrorist or other incidents involving weapons of mass destruction.

"The mission of the WMD-CST is to support civil authorities at domestic CBRNE [chemical, biological, radiological, nuclear, and high-yield explosive] incident sites by identifying CBRNE agents and substances, assessing current and projected consequences, advising on response measures, and assisting with appropriate requests for additional support."

The new manual describes the origins, capabilities, organization, and operations of the civil support teams. The Army approved the document for public release.

See "Weapons of Mass Destruction - Civil Support Team Operations," U.S. Army Field Manual FM 3-11.22, December 10, 2007:

CHINA'S SPACE PROGRAM, AND MORE FROM CRS

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following.

"China's Space Program: Options for U.S.-China Cooperation," December 14, 2007:

"U.S.-China Military Contacts: Issues for Congress," updated December 12, 2007:

"Iran: U.S. Concerns and Policy Responses," updated December 5, 2007:

"Iraq and Al Qaeda," updated December 7, 2007:

"Venezuela: Political Conditions and U.S. Policy," updated November 26, 2007:

"The U.N. Law of the Sea Convention and the United States: Developments Since October 2003," updated October 31, 2007:

"Entering the Executive Branch of Government: Potential Conflicts of Interest With Previous Employments and Affiliations," updated December 11, 2007:

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

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