SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 65
July 7, 2008

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

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CONGRESS QUESTIONS SECRET DIRECTIVES, WEAKLY

By classifying some recent Presidential directives on homeland security and restricting their disclosure, the Bush Administration has impeded their effective implementation, the Senate Appropriations Committee reported last month.

"The Committee notes the administration has released several Homeland Security Presidential Directives over the last year, including ones concerning the deterrence of the use of improvised explosive devices and efforts to enhance cyber security."

"However, in both cases these documents are classified, putting them out of the reach of many of the people responsible for their implementation," the Appropriations Committee said in its June 23 report on the 2009 Homeland Security Appropriations Act.

But instead of taking corrective action, the Committee could only beg the Administration to reconsider:

This is an anemic, self-defeating approach to congressional oversight. It imposes no requirements and makes no demands. The Committee could have directed the Administration to prepare unclassified versions of the directives for broad dissemination. It could have asked the agencies to justify the directives' secrecy with a report on the asserted basis for continued classification, including the costs and benefits involved. The Committee could even have mandated disclosure of key elements of the classified directives. But instead it merely "urged" reexamination, a rhetorical posture that cannot be expected to generate a meaningful response from a rule-driven bureaucracy.

Worst of all, the Committee preemptively surrendered its own authority with a mistaken declaration that classification "is ultimately the responsibility of the executive branch."

Though the Committee seems to have forgotten it, Congress has its own role to play in defining the national security classification system.

Coincidentally, that point was stressed in a court ruling last week.

"The authority to protect national security information is neither exclusive nor absolute in the executive branch," wrote Judge Vaughan R. Walker of the Northern District of California in a July 2 opinion which affirmed the Foreign Intelligence Surveillance Act as the only legal mechanism for domestic intelligence surveillance.

"When Congress acts to contravene the president's authority, federal courts must give effect to what Congress has required," he found (at page 22).

If there were any doubt about that, he noted, "many Congressional enactments regulate the use of classified materials by the executive branch," including some statutes that restrict disclosure of information or impose safeguarding requirements, and other statutes that require disclosure of information outside of the executive branch.

"Congressional regulation of the use of classified information by the executive branch... is therefore well-established," Judge Walker concluded.


FBI HEADQUARTERS NOT CLEARED FOR CLASSIFIED INTELLIGENCE

The Federal Bureau of Investigation, which is part of the U.S. intelligence community, has the lead responsibility for domestic surveillance of foreign intelligence and suspected terrorist targets.

So it seems like a rather crippling defect that the J. Edgar Hoover Building, the FBI headquarters in Washington, DC, cannot satisfy government standards for storage and use of classified intelligence records.

"The Hoover Building does not meet the Interagency Security Committee's criteria for a secure Federal facility capable of handling intelligence and other sensitive information," the Senate Appropriations Committee observed in a new report on the 2009 Commerce, Justice and State Appropriations bill.

"The Committee finds these conditions unacceptable and directs the Government Accountability Office [GAO] to review the Hoover Building and associated off-site locations, and provide a analysis of the FBI's ability to fulfill its mission and security requirements under the present circumstances."

The FBI is in the process of constructing a Central Records Complex outside of Washington, DC. When completed, it will provide secure, centralized storage for classified intelligence, consistent with the security requirements of Director of Central Intelligence Directive (DCID) 6/9 and related guidelines.


JESSE HELMS ON SECRECY

The late Senator Jesse Helms, who died on July 4, was an arch-conservative opponent of civil rights legislation, arms control treaties and other liberal causes. Though none of the obituaries mentioned it, he also became an outspoken critic of government secrecy.

"This government is shot through with willy-nilly applications of secrecy," he complained in January 1995 at the first meeting of the Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission), of which he was a member.

"I've been fussing for years about the application of secrecy on just about every document in this town," he said then.

Senator Helms co-sponsored secrecy reform legislation based on the recommendations of the Moynihan Commission. That legislation was not enacted. But as chairman of the Senate Foreign Relations Committee, he helped pass legislation to require disclosure of most U.S. arms sales to foreign governments, which was signed into law.

"Secrecy all too often becomes a political tool used by Executive Branch agencies to shield information which may be politically sensitive or policies which may be unpopular with the American public," he testified at a Senate hearing in 1997. "Worse yet, information may be classified to hide from public view illegal or unethical activity."

"On numerous occasions I, and other Members of Congress, have found the Executive Branch to be reluctant to share certain information, the nature of which is not truly a 'national secret,' but which would be potentially politically embarrassing to officials in the Executive Branch or which would make known an illegal or indefensible policy," Sen. Helms said.


CLUSTER MUNITIONS, AND MORE FROM CRS

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following.

"U.S.-Russian Civilian Nuclear Cooperation Agreement: Issues for Congress," updated June 26, 2008:

"Department of Justice (DOJ) Appropriations for FY2008 and FY2009," June 10, 2008:

"A Brief History of Veterans' Education Benefits and Their Value," June 25, 2008:

"Veterans Affairs: Historical Budget Authority, Fiscal Years 1940 through 2007," June 13, 2008:

"Cluster Munitions: Background and Issues for Congress," June 27, 2008:

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

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