SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 4
January 14, 2009

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BASIC FAILURES ABOUND IN CLASSIFICATION PROGRAM

"At a time where we would expect to find increasing stability in the [national security classification] program, we are instead finding failure with the implementation of basic requirements," wrote William J. Bosanko, director of the Information Security Oversight Office (ISOO), in the latest ISOO annual report to the President.

Out of more than 1,000 classified documents examined by ISOO last year, "the appropriateness of classification was subject to question in over 25 percent," Mr. Bosanko reported.

See the FY 2008 ISOO Report to the President, transmitted January 12, 2009.

In what may be the report's most significant finding, ISOO discovered that the majority of classification guides used by government agencies to prescribe exactly what information should be classified at what level are badly out of date.

"Overall, 67 percent of the guides agencies reported as being currently in use had not been updated within the past five years," the ISOO report said. In effect, agencies are continuing to impose outdated classification restrictions on newly generated information.

This finding underscores the utility of, and the need for, an agency-by-agency "scrub" of all classification guides in order to eliminate obsolete classification practices. (For more on this approach, see "Overcoming Overclassification," Secrecy News, September 16, 2008.)

The new ISOO report also had some favorable news. The number of original classification authorities (who are authorized to designate new information as classified) declined slightly. The number of original classification decisions -- new secrets -- dropped by 13 percent. For the fourth year in a row, a majority of new classification actions were assigned a declassification date of ten years or less. The number of classification challenges within the executive branch disputing the classification status of certain information rose to 436 formal challenges from 275 the year before. The ISCAP, which reviews appeals of declassification requests that have been denied, declassified a greater percentage of information than in past years.

But in general, declassification languished. "The overall number of pages reviewed and pages declassified by Executive branch agencies has declined significantly from previous years." And it is unlikely that agencies will meet a December 31, 2009 deadline for automatic declassification of 25 year old records that contain multiple agencies equities (or interests), the ISOO report said.

In the end, the classification system can only work as well as government officials want it to work, the ISOO report concluded.

"Ultimately, the success or failure [of agency classification policies] depends on the commitment of the agency heads and senior agency officials to the classified national security information program established by the President," ISOO said.


ODNI DENIES RELEASE OF 2006 INTELLIGENCE BUDGET FIGURE

Speaking of overclassification and mindless adherence to obsolete secrecy standards, the Office of the Director of National Intelligence today denied a request to release the size of the 2006 National Intelligence Program budget.

The size of the 2007 budget for the National Intelligence Program has been formally declassified and released ($43.5 billion). And so has the figure for the 2008 budget ($47.5 billion).

But "the size of the National Intelligence Program for Fiscal Year 2006 remains currently and properly classified pursuant to Executive Order 12958, as amended," wrote Lt. Gen. Ronald L. Burgess, Jr., director of the ODNI Intelligence Staff.

"In addition, the release of this information would reveal sensitive intelligence sources and methods," he wrote.


BUSH DIRECTIVE ON ARCTIC POLICY STRESSES U.S. SOVEREIGNTY

Though many Americans might not realize it, "The United States is an Arctic nation," President Bush declared this week, "with varied and compelling interests in that region."

U.S. policy towards the Arctic region, which includes a portion of Alaska, was vigorously formulated in what is likely to be the Bush Administration's last National Security Presidential Directive, NSPD-66 on Arctic Region Policy, dated January 9, 2009.

In the face of conflicting claims by the government of Canada, the directive asserts "lawful claims of United States sovereignty, sovereign rights, and jurisdiction in the Arctic region."

Noting that the U.S. and Canada "have an unresolved boundary in the Beaufort Sea" (which "may contain oil, natural gas, and other resources"), the President directed U.S. agency heads to "take all actions necessary to establish the outer limit of the continental shelf appertaining to the United States, in the Arctic and in other regions, to the fullest extent permitted under international law."

In the Canadian press, the new directive was described as a "forceful rebuttal of Canada's claims of sovereignty over the Northwest Passage." See "Bush takes final swing at Arctic sovereignty," National Post, January 12.

President Bush called on the U.S. Senate to ratify the Law of the Sea Treaty, which is opposed by some Senate Republicans, because, he said, it offers "the most effective way to achieve international recognition and legal certainty for our extended continental shelf."

Although many National Security Presidential Directives are classified, and the subject matter of some of them is still completely unknown to the public, NSPD-66 was issued as an unclassified, public document. A listing and collection of all publicly known NSPDs is here:

A Congressional Research Service report on "Presidential Directives: Background and Overview," updated November 26, 2008, is here:


CURRENT, FUTURE JUSTICE OFFICIALS CLASH OVER OLC PROPOSAL

In a revealing conflict of views between outgoing and incoming Justice Department officials, Attorney General Michael Mukasey recently told Congress that a proposal that was conceived by Prof. Dawn Johnsen to require expanded reporting to Congress concerning Justice Department Office of Legal Counsel (OLC) opinions is unconstitutional. Prof. Johnsen has been designated by President-elect Obama as the new OLC head.

The dispute concerned "The OLC Reporting Act of 2008" (S.3501) that was introduced by Sen. Russ Feingold last September.

"The bill would require the Attorney General to report to Congress when the Department of Justice issues a legal opinion concluding that the executive branch is not bound by a statute," Sen. Feingold explained last year. Currently, no such notification to Congress is required, and the executive branch may silently interpret a seemingly straightforward statute as non-binding.

The Feingold bill emerged from a suggestion offered by Prof. Johnsen at an April 30, 2008 hearing on "Secret Law."

The OLC Reporting Act, which would not require disclosure of the actual legal opinions, "strikes a sensible and constitutionally sound balance between the executive branch's need to have access to candid legal advice... and the legislative branch's need to know the manner in which its laws are interpreted," Prof. Johnsen wrote in a September 15 letter with former Bush White House Associate Counsel Brad Berenson.

It's not constitutionally sound at all, objected Attorney General Mukasey in a November 14 letter to the Senate Majority Leader that was disclosed this week. The bill is unconstitutional because it improperly seeks to mandate the timing and extent of disclosure of classified information, and because it infringes on the constitutional doctrine of executive privilege, he said.

The legislation would require that Congress be notified of "many legal opinions" that fall within its terms, the Attorney General wrote. And it would mistakenly lead legal advisers to tailor their advice in such a way as not to trigger the reporting requirements of the Act, he warned.

Accordingly, Attorney General Mukasey said, "the Department strongly opposes this legislation, and if it were presented to the President, his senior advisers would recommend that he veto it."

But the Department's strong opposition to the bill is likely to fade very soon, considering that one of the new President's "senior advisers" is also one of the bill's authors.

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

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