SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 55
June 25, 2009

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

JUDGE SOTOMAYOR: A CRS ANALYSIS OF SELECTED OPINIONS

More than anything else, Judge Sonia Sotomayor is a judicial conservative who has hewed closely to established precedent, according to a new analysis by the Congressional Research Service of appellate court decisions authored by President Obama's nominee to the Supreme Court.

"Perhaps the most consistent characteristic of Judge Sotomayor's approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents," the 59-page CRS report stated.

In several important areas, however, the Judge's conception of the law remains opaque. For example, "An examination of Judge Sotomayor's opinions provides little guidance as to her judicial philosophy regarding executive authority in the realm of national security," the report said.

Judge Sotomayor authored two opinions involving the Freedom of Information Act. But "because the opinions are few and relied on relevant Supreme Court precedent, it is difficult to draw conclusions from them regarding her overall approach to FOIA or to related matters such as individual privacy or transparency in government," the CRS concluded.

See "Judge Sonia Sotomayor: Analysis of Selected Opinions," June 19, 2009:

Other noteworthy new CRS reports obtained by Secrecy News include the following:

"Supreme Court Nominations: Senate Floor Procedure and Practice, 1789-2009," updated June 5, 2009:

"Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress," June 22, 2009:

"Federal Rulemaking: The Role of the Office of Information and Regulatory Affairs," June 9, 2009:

"Homeland Security Department: FY2010 Request for Appropriations," June 15, 2009:

"Iran's 2009 Presidential Elections," June 22, 2009:


PUBLIC INPUT SOUGHT ON CLASSIFICATION REFORM

At the request of the National Security Advisor, a public meeting has been scheduled for July 8 to solicit public comments and recommendations concerning proposed revisions to executive branch classification and declassification policies. The meeting was announced in a June 23 Federal Register notice:

The Public Interest Declassification Board, which is hosting the July 8 meeting, will also launch a new blog next week to solicit public recommendations online. The blog will sequentially consider four areas: declassification policy, creation of a National Declassification Center, classification policy, and technology challenges and opportunities. Discussion of each topic will continue for three days, before moving to the next topic.

Meanwhile, an experimental and somewhat erratic White House process for gathering public input on transparency and openness has entered its third phase, intended to "craft constructive proposals" for advancing open government. See:


2006 SATELLITE FAILURE REMAINS A MYSTERY, NRO SAYS

In February 2008, the U.S. fired a missile at an inoperable U.S. intelligence satellite that had failed shortly after launch in December 2006. The satellite was destroyed reportedly in order to prevent an intact reentry of its toxic hydrazine fuel tank. But do we know why or how it failed in the first place?

"No," the director of the National Reconnaissance Office told Congress last year, in newly disclosed responses to questions for the record.

"After an exhaustive formal failure investigation, and three different independent review team investigations, the cause of the failure and what failed was not determined," said Scott Large, then-director of the NRO. "Our exhaustive analysis of the spacecraft design and test program did not identify the root cause of the failure," Mr. Large said.

His remarks appeared in the record of a March 5, 2008 hearing before the House Armed Services Committee that was published this month. See "Budget Request and Status of Space Activities":

"The era of Acquisition Reform is over," Mr. Large also told Congress. "It has left the NRO in a fragile state with a poor history of performance."

On June 12, Secretary of Defense Robert Gates, with concurrence of the DNI, appointed retired Air Force Gen. Bruce Carlson as the 17th director of the National Reconnaissance Office.


VARIOUS RESOURCES

A new U.S. Marine Corps Order establishes Corps policy governing the disclosure of U.S. classified military information and controlled unclassified information to foreign governments. See "Disclosure of Military Information to Foreign Governments and Interests," MCO 5510.20A, May 15, 2009:

The Joint Chiefs of Staff issued new doctrinal guidance on combating weapons of mass destruction, including the three pillars of nonproliferation, counterproliferations, and WMD consequence management. See "Combating Weapons of Mass Destruction," Joint Publication 3-40, June 10, 2009:

The Merit Systems Protection Board upheld the firing of federal air marshal Robert MacLean for allegedly disclosing "sensitive security information," even though the information in question had not been marked as "sensitive" at the time, reports Nick Schwellenbach of the Center for Public Integrity. But then the Board published its ruling online even though the document was marked "sensitive security information." No word yet on whether the Board will fire itself. See "Transparency: A Shrill Message for Whistleblowers," June 25:

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

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