Over the objections of its authors, the Department of Homeland Security classified a 2007 report from the National Academy of Sciences on the potential vulnerability of the U.S. electric power system until most of it was finally released yesterday.

The report generally concluded, as other reports have, that the electric grid is lacking in resilience and is susceptible to disruption not only from natural disasters but also from deliberate attack.

But even though the report was written for public release, the entire document was classified by DHS and could not be made available for public deliberation.  Amazingly, it took five years for the classification decision to be reviewed and reversed.  As Academy leaders explained in the Foreword to the report:

“DHS concluded that the report would be classified in its entirety under the original classification authority vested in the DHS undersecretary for science and technology. Because the committee believed that the report as submitted contained no restricted information, the NRC [National Research Council] requested the formal classification guidance constituting the basis for the classification decision. That guidance was not provided, and so in August 2010, the NRC submitted a formal request for an updated security classification review. Finally, in August 2012, the current full report was approved for public release, reversing the original classification decision, except that several pages of information deemed classified are available to readers who have the necessary security clearance.”

“We regret the long delay in approving this report for public release,” wrote Ralph J. Cicerone, president of the National Academy of Sciences, and Charles M. Vest, president of the National Academy of Engineering in the Foreword.

“We understand the need to safeguard security information that may need to remain classified,” they wrote. “But openness is also required to accelerate the progress with current technology and implementation of research and development of new technology to better protect the nation from terrorism and other threats.”

They said that a workshop was planned to address changes that have occurred since the report was completed in 2007.

See “Terrorism and the Electric Power Delivery System,” National Research Council, released November 14, 2012.  (More from Foreign Policy, NYT)

Classification policy at the Department of Homeland Security has become somewhat more streamlined lately as a result of the Obama Administration’s Fundamental Classification Guidance Review.

Of the Department’s 74 security classification guides, 45 were revised and 16 were cancelled.  Overall, 157 subtopics that had been classified — and that could be used to justify classification of DHS records — “were determined to no longer require classification,” according to the DHS final report on the Fundamental Classification Guidance Review of July 16, 2012.

New or newly updated reports from the Congressional Research Service that have not been made readily available to the public include the following.

Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, October 9, 2012

Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, October 9, 2012

Privacy: An Overview of the Electronic Communications Privacy Act, October 9, 2012

Privacy: An Abridged Overview of the Electronic Communications Privacy Act, October 9, 2012

Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions, November 9, 2012

Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws, November 9, 2012

The Budget Control Act of 2011: Budgetary Effects of Proposals to Replace the FY2013 Sequester, November 9, 2012

El Salvador: Political and Economic Conditions and U.S. Relations, November 9, 2012

The U.S.-Colombia Free Trade Agreement: Background and Issues, November 9, 2012

Trade Preferences: Economic Issues and Policy Options, November 14, 2012

The Distribution of Household Income and the Middle Class, November 13, 2012

President Obama’s declared goal of making his “the most transparent Administration in history” generated successive waves of enthusiasm, perplexity, frustration, and mockery as public expectations of increased openness and accountability were lifted sky high and then — often, not always — thwarted.

Every Administration including this one presides over the release of more government information than did its predecessors, if only because more information is created with the passage of time and there is more that can be released.  But President Obama seemed to promise more than this.  What was it?

Part of the problem is definitional.

“Although there are laws that affect access to government information, there is no single definition for what constitutes transparency– nor is there an agreed upon way to measure it,” observes a new report from the Congressional Research Service.

“Transparency may be defined as the disclosure of government information and its use by the public,” the report suggests. “Transparency, under this definition, requires a public that can access, understand, and use the information it receives from the federal government. This report first assesses the meaning of transparency and discusses its scholarly and practical definitions. It also provides an analysis of the concept of transparency, with a focus on federal government transparency in the executive branch.”

“This report subsequently examines the statutes, initiatives, requirements, and other actions that make information more available to the public or protect it from public release. It also examines transparency and secrecy from the standpoint of how the public accesses government information, and whether the release of government data and information may make operation of the federal government more or, counter-intuitively, less transparent. Finally, this report analyzes whether existing transparency initiatives are effective in reaching their stated goals.”

The CRS report makes only passing mention of national security secrecy and does not address efforts to reduce the scope and application of secrecy in the national security realm.  It also does not consider in any depth how technological changes are affecting government information policy, perturbing or mooting longstanding official positions on disclosure and non-disclosure.  Nor does it explore political obstacles to greater transparency (such as the congressional policy that bars CRS publication of this very report on transparency).

A copy of the report was obtained by Secrecy News.  See Government Transparency and Secrecy: An Examination of Its Meaning and Use in the Executive Branch,” November 8, 2012.

Some other new and newly updated CRS reports that Congress has not made publicly available include the following.

U.S. Renewable Electricity: How Does Wind Generation Impact Competitive Power Markets?, November 7, 2012

Energy Policy: 112th Congress Issues and Legislative Proposals, November 8, 2012

China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues, November 7, 2012

The U.S.-Panama Free Trade Agreement (which entered into force on October 31), November 8, 2012

The United States as a Net Debtor Nation: Overview of the International Investment Position, November 8, 2012

Social Security: Cost-of-Living Adjustments, November 8, 2012

Israel: Background and U.S. Relations, November 7, 2012

Lebanon: Background and U.S. Policy, November 6, 2012

Selected reports from the Congressional Research Service on veterans’ affairs which Congress has not made readily available to the public include the following.

“Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits, January 23, 2012

Employment for Veterans: Trends and Programs, October 23, 2012

GI Bills Enacted Prior to 2008 and Related Veterans’ Educational Assistance Programs: A Primer, October 22, 2012

The Post-9/11 Veterans Educational Assistance Act of 2008 (Post-9/11 GI Bill): Primer and Issues, September 21, 2012

Disability Benefits Available Under the Social Security Disability Insurance (SSDI) and Veterans Disability Compensation (VDC) Programs, September 12, 2012

SBA Veterans Assistance Programs: An Analysis of Contemporary Issues, September 4, 2012

Overview of the Appeal Process for Veterans’ Claims, July 16, 2012

Veterans Affairs: Historical Budget Authority, FY1940-FY2012, June 13, 2012

Veterans’ Medical Care: FY2013 Appropriations, May 8, 2012

Suicide Prevention Efforts of the Veterans Health Administration, February 3, 2012

Veterans and Homelessness, February 2, 2012

In a new case of alleged mishandling of classified materials, a Navy contract linguist who served in Bahrain until earlier this year was charged with unlawful retention of national defense information after several classified documents were found in his possession.

But although James F. Hitselberger, an experienced Arabic translator, was charged under an Espionage Act statute (18 USC 793e), he is not suspected of espionage.  The government “concedes that Defendant… did not disseminate the classified information to a ‘foreign power’,” a Magistrate Judge noted on Monday when the case was unsealed.

Rather, Mr. Hitselberger told NCIS agents that “his sole purpose was to take the materials to his quarters to read” and he “claimed not to know that the documents… were classified, notwithstanding their clear markings.”

The case has a number of unusual features, beginning with the defendant himself, who is a peripatetic collector of rare documents. While at the University of Texas at Austin in the 1990s, he was said to have been “working on an open-ended Ph.D. in an unknown subject.”  His living quarters in Bahrain, in which a classified document was allegedly found in April of this year, were “extremely cluttered and contained hundreds of newspapers [and] numerous books.”

Remarkably, Mr. Hitselberger had donated many of his most valuable documentary discoveries over the years to the Hoover Institution at Stanford University, which actually maintains a James F. Hitselberger Collection. It notably includes political posters and leaflets that he gathered in pre-revolutionary Iran.

Unfortunately, according to a newly unsealed complaint, Hoover’s Hitselberger Collection also contained classified records that he had contributed.

“Agents visited the Hoover Archives and reviewed the collection.  In an area open to the public, the agents found a classified document titled Bahrain Situation Update dated February 13, 2012…. In a secure, non-public area of the Archives, agents also discovered two other documents marked SECRET.”

A disconcerted Hoover Institution archivist told Mr. Hitselberger in May by email that “in light of the FBI investigation of your collection here at Hoover, we will no longer accept additions to the collection, as we don’t want to risk receiving more classified material.”

In April of this year, Mr. Hitselberger was dismissed from his post in Bahrain and was expected to return to the United States.  Instead, however, he traveled for months through Germany, Sweden, Malta, Bulgaria and the United Kingdom, and was beyond the reach of U.S. authorities.

“Although the government was aware of Defendant’s whereabouts during that time, the countries would not extradite him [to the U.S.] because the offense charged was characterized as a ‘political offense’,” according to a November 5 memorandum of findings of fact by DC District Magistrate Judge Deborah A. Robinson.

But last month, when it was learned that he was traveling to Kuwait, the Government of Kuwait agreed to expel him into U.S. custody if he arrived there without a valid passport.  So the U.S. suspended his passport, and upon arrival placed him under arrest.

In traditional espionage cases, a suspected spy is sometimes identified by unexplained affluence or ostentatious behavior.  But, as noted, this is not an espionage case and there is no question of affluence.

To the contrary, the government and the court seemed disturbed by Mr. Hitselberger’s extraordinary frugality which, they suggested, might enable him to quietly vanish.

“Defendant has demonstrated his ability to live abroad and survive on his apparently modest means,” wrote Judge Robinson. “Defendant’s pattern of residing in, and relocating to, various countries without ascertainable income bespeaks his ability to live abroad undetected with limited resources.”

Mr. Hitselberger was ordered detained without bond.

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Natural Gas in the U.S. Economy: Opportunities for Growth, November 6, 2012

The Dodd-Frank Wall Street Reform and Consumer Protection Act: Title VII, Derivatives, November 6, 2012

Same-Sex Marriages: Legal Issues, November 5, 2012

Mayo v. Prometheus: Implications for Patents, Biotechnology, and Personalized Medicine, November 6, 2012

U.S. Direct Investment Abroad: Trends and Current Issues, October 26, 2012

Foreign Direct Investment in the United States: An Economic Analysis, October 26, 2012

Employment for Veterans: Trends and Programs, October 23, 2012

Yemen: Background and U.S. Relations, November 1, 2012

Bahrain: Reform, Security, and U.S. Policy, November 6, 2012

The Department of Defense Inspector General (IG) announced that it will begin to review the Department’s classification practices, as required by the 2010 Reducing Over-Classification Act.

The review will evaluate the policies and procedures “that may be contributing to persistent misclassification of material.”  It will also address “efforts by the Department to decrease over-classification,” wrote Acting Deputy Inspector General James R. Ives in an October 3 letter sent to Department officials.

The new Inspector General review has the potential to thicken and enrich the oversight of national security classification policy.  The IG staff will have broad access to whatever classified Department information they require to perform their statutorily-mandated review.  Moreover, they typically have an investigative orientation that goes beyond routine monitoring.  And while the Information Security Oversight Office is responsible for secrecy oversight government-wide, the IG reviews (which are to be coordinated with ISOO) are to be focused, in-depth assessments of a single host agency and so they may be expected to provide new granularity as well as actionable findings.

Of course, there are limits to what the IG can achieve.  The IG review will at best evaluate the Defense Department’s compliance with executive branch classification policies;  it will not inquire into the necessity or wisdom of the policies themselves.  If the executive order on classification is based on outdated presumptions, or is otherwise misconceived– that is beyond the purview of the IG.

Still, this seems like an approach worth testing.  The use of Inspectors General to bolster classification oversight was advocated by the Federation of American Scientists at a hearing of the House Intelligence Committee on “Classification of National Security Information” in July 2007.  Rep. Anna Eshoo, who chaired the hearing, welcomed the idea as “very helpful.”

The proposal for IG review was then embraced by Rep. Jane Harman, who incorporated it into her 2007 House bill on over-classification.  With the Senate sponsorship of Sen. Joe Lieberman, the Reducing Over-Classification Act was finally passed by Congress and signed by President Obama in October 2010.

The DoD IG had said last year that it intended to begin the classification review “immediately,” but that seems to have been a false start.  In any case, the first of two IG reviews in each agency must be completed by the end of September 2013.

The DoD Inspector General also announced another project to review interactions between DoD employees and the media concerning DoD classified programs.

The members of the Electoral College who formally enact the election of the President are expected or even required to represent the wishes of the voters who elected them, but sometimes they don’t!

“Notwithstanding the tradition that electors are bound to vote for the candidates of the party that nominated them, individual electors have sometimes broken their commitment, voting for a different candidate or candidates other than those to whom they were pledged,” a report from the Congressional Research Service explains. “They are known as ‘faithless’ or ‘unfaithful’ electors.”

“Although 24 states seek to prohibit faithless electors by a variety of methods, including pledges and the threat of fines or criminal action, most constitutional scholars believe that once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have been few in number (since the 20th century, one each in 1948, 1956, 1960, 1968, 1972, 1976, and 1988, one blank ballot cast in 2000, and one in 2004), and have never influenced the outcome of a presidential election.”

See The Electoral College: How It Works in Contemporary Presidential Elections, October 22, 2012.

Other new and newly updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, October 25, 2012

Federal Involvement in Flood Response and Flood Infrastructure Repair: Storm Sandy Recovery, October 31, 2012

Emergency Relief Program: Federal-Aid Highway Assistance for Disaster-Damaged Roads and Bridges, November 1, 2012

Constitutionality of Retroactive Tax Legislation, October 25, 2012

The Impact of the Federal Estate Tax on State Estate Taxes, October 24, 2012

Air Force F-22 Fighter Program, updated October 25, 2012

Updated below

The New York Times reported last week that the Congressional Research Service had withdrawn a report that found no correlation between reduced tax rates and increased economic growth after some Republican Senators took exception to it.  (“Nonpartisan Tax Report Withdrawn After G.O.P. Protest” by Jonathan Weisman, November 1.)

But “withdrawn” here means withdrawn from the internal congressional website.  CRS could not withdraw the report from public circulation because it never made the report publicly available.  In fact, as things stand, the “withdrawn” CRS report is now more widely accessible than the large majority of other CRS products.  Not only did the New York Times post it online, it is available on the congressional website of the Senate Democratic Policy Committee, as well as through FAS and elsewhere.

But neither congressional Republicans who were angered by the report nor Democrats who were offended by its withdrawal have seen fit to provide public access online to thousands of other CRS reports, which are effectively suppressed without being withdrawn. (A House resolution earlier this year to alter that anachronistic policy has not gone anywhere.)

One possible argument against public disclosure is that the CRS report on tax rates and growth would almost certainly have escaped criticism if it had not been introduced into broad public discourse by a previous New York Times article in September.  Once people began talking about it, it could not be ignored by interested members of Congress.  But that is an argument for CRS irrelevance, not for non-disclosure.

CRS often does fine work, but it is not above error or beyond criticism.  Republicans, Democrats and anyone else are all well within their rights to dispute CRS reports on factual, methodological or even ideological grounds.  Why wouldn’t they be?

Ideally, the proper response from CRS would not have been to withdraw the report, but to engage the critics.  If those critics have valid points, CRS should revise the report accordingly.  If the objections are not valid, let CRS explain why.  This shouldn’t be complicated.  And yet somehow it is.  Once a congressional agency becomes the target of partisan attacks, it can be crippled and then destroyed, as was the case with the still-lamented Office of Technology Assessment, which was terminated by the new Republican majority in 1995.  (“Congress surely doesn’t need [a research organization such as CRS] that acts like an arm of the Democratic Party,” the Wall Street Journal editorialized ominously and unfairly on Friday in response to the latest controversy.)

According to the Times story last week, “Congressional aides and outside economists said they were not aware of previous efforts to discredit a study from the research service.”  But actually there have been a number of such efforts in which the motives or competence of CRS analysts were impugned by Members who disagreed with their conclusions.

“CRS completely ignored the most basic principles of statutory interpretation,” complained Rep. Pete Hoekstra (R-MI) in an angry 2006 letter to the CRS director criticizing certain CRS intelligence studies.  He said CRS had produced “a flawed and obviously incomplete analysis…. ”  The CRS perspective was defended at that time by Rep. Jane Harman, and the studies in question were not rescinded.  (See “Mau-Mauing the Congressional Research Service,” Secrecy News, February 4, 2006.)  A 1993 CRS report on Iraq’s Nuclear Achievements was one of a number of reports that have been withdrawn from official circulation for various reasons.

Update: The “withdrawn” CRS report on tax rates was reissued in a somewhat revised form on December 12, 2012 and may be found here.

The U.S. electric power system is vulnerable to a variety of threats, from natural disasters to operational errors to sabotage or terrorist attack, a newly disclosed report from the Congressional Research Service says.

Over the years there have actually been tens of thousands of recorded attacks on electric power targets, CRS notes, but usually due to “mischief” and with limited or no consequences.

“Most commonly, electric outages are caused by use of a weapon to shoot out transformers or use of simple tools to take down transmission towers.”

“As part of regular operating procedure, utilities make contingency plans for outages of one or two large components on their system. However, few systems make contingency plans for outages on as many as seven critical components. Under extreme scenarios, large portions the United States could be without power for several months.”

The CRS report is dated April 9, 2004.  But for reasons that could not be immediately ascertained, the report was only issued last week with a new report number.

“This report identifies physical and cyber vulnerabilities in the electric transmission and distribution system.  The role of government and industry in protecting infrastructure as well as in the restoration of damaged systems is analyzed and policy implications are discussed.”

A copy of the report was obtained by Secrecy News.  See Electric Utility Infrastructure Vulnerabilities: Transformers, Towers, and Terrorism, April 9, 2004.

For the second year in a row and for only the second time in the post-9/11 era, total intelligence spending declined last year to $75.4 billion, according to figures released yesterday by the Director of National Intelligence and the Department of Defense (Bloomberg, Wash Times, Reuters).

Total spending had peaked in FY2010 at $80.1 billion, and declined in FY2011 to $78.6 billion.

“We are looking at some pretty steep budget cuts across the board in the Intelligence Community,” DNI James Clapper told the Senate Intelligence Committee last January.

“Never before has the Intelligence Community been called upon to master such complexity on so many issues in such a resource-constrained environment,” he said then. “We’re rising to the challenge by continuing to integrate the Intelligence Community, … taking advantage of new technologies, implementing new efficiencies, and, as always, simply working hard. But, candidly, maintaining the world’s premier intelligence enterprise in the face of shrinking budgets will be difficult. We’ll be accepting and managing risk more so than we’ve had to do in the last decade.”

But while intelligence budgets are shrinking, they remain very high by historical standards, having more than doubled over the past decade.

Total intelligence spending is comprised of two budget constructs:  the National Intelligence Program (NIP) and the Military Intelligence Program (MIP).  The large defense intelligence agencies — including NSA, NRO, and NGA — receive funding through both budget programs.

For the first time ever in FY2012, both the budget request for the NIP ($55 billion) and the subsequent budget appropriation ($53.9 billion) have been disclosed.  (The MIP request was disclosed for FY2013, but not for FY2012.)  This is something of a breakthrough in intelligence classification policy.

Hypothetically (or so it was long asserted), a hostile intelligence analyst could derive valuable insight from the gap between each year’s budget appropriation, or between the appropriation and the request, to the detriment of U.S. security.

“Disclosure of the budget request or the total appropriation reasonably could be expected to cause damage to the national security in several ways,” wrote Director of Central Intelligence George Tenet in 1999 in a successful effort to keep the budget secret at that time. “First, disclosure of the budget request reasonably could be expected to provide foreign governments with the United States’ own assessment of its intelligence capabilities and weaknesses. The difference between the appropriation for one year and the Administration’s budget request for the next provides a measure of the Administration’s unique, critical assessment of its own intelligence programs. A requested budget decrease reflects a decision that existing intelligence programs are more than adequate to meet the national security needs of the United States. A requested budget increase reflects a decision that existing intelligence programs are insufficient to meet our national security needs. A budget request with no change in spending reflects a decision that existing programs are just adequate to meet our needs.”

But this longstanding official position has now lost any semblance of cogency.

“In my view, this argument does not stand up to even a few minutes of serious analysis,” wrote former 9/11 Commission executive director (and Romney campaign adviser) Philip Zelikow in the latest issue of the CIA journal Studies in Intelligence.

But with serious analysis evidently in short supply, total intelligence budget secrecy remained the norm for many decades until recently.

As often happens, the Federal Bureau of Investigation invoked national security a few years ago to justify withholding certain information from a Freedom of Information Act requester named Deirdre McKiernan Hetzler.

But as rarely happens, a court last month critically assessed the FBI national security claim and ordered the Bureau to release some of the withheld information.

Ms. Hetzler, acting pro se (i.e. without an attorney), had requested records concerning her deceased father, who had once been the subject of an FBI investigation.  The FBI provided her with some records but withheld others, stating that they remained classified in order to protect an intelligence activity.

But after reviewing the withheld records in camera, Judge Michael A. Telesca of the Western District of New York determined that some of the information contained in them was not exempt from disclosure under FOIA.  The FBI had been withholding it under the FOIA’s national security exemption even though it was actually unclassified or declassified.

“The Court is not persuaded that Defendants [the FBI and the Justice Department] have carried their burden of showing that disclosure of this information could cause serious damage to national security,” Judge Telesca wrote in a September 6, 2012 opinion.  He therefore ordered the FBI to reprocess the request and to release the information to Ms. Hetzler as specified in his ruling.

The Court here acted as a check on the normally unconstrained official tendency to classify and withhold information.  That is what judicial review is supposed to do, though it doesn’t happen very often.

Earlier this year, Judge Richard W. Roberts of the DC District ordered the U.S. Trade Representative to release a classified document to the Center for International Environmental Law (CIEL) because he found that the document was not properly classified.

The USTR “failed to provide a plausible or logical explanation of why disclosure of [the document] reasonably could be expected to damage United States foreign relations,” he wrote in his opinion ordering release.

The government has appealed that ruling.  Judge Roberts “inappropriately second-guessed the Executive’s expertise in the uniquely sensitive area of foreign relations,” the government said in its September 17 appeals brief.

No, on the contrary, CIEL responded in its own brief to the appeals court this week, Judge Roberts did exactly what the FOIA requires.

“A district court reviewing [an agency claim that a document is classified and exempt from disclosure] must give substantial weight to the agency’s explanations, but must not simply acquiesce in the agency’s determination,” CIEL attorneys wrote.

“Congress explicitly ‘stressed the need for an objective, independent judicial determination, and insisted that judges could be trusted to approach the national security determinations with common sense, and without jeopardy to national security’,” they wrote, citing prior FOIA case law.

The document that is being contested in this case is a one-page memorandum that presents the US government’s legal interpretation of the phrase “in like circumstances.”

The government says that because the document was shared confidentially with other governments as part of a (now-concluded) free trade negotiation, its involuntary disclosure would undermine the confidentiality of diplomatic negotiations.

Judge Roberts said this argument was not compelling “since the United States would be revealing its own position only” and would not be disclosing foreign government information that had been provided in confidence.

Indeed, “There is no expectation that a government is required to keep its own negotiating positions confidential from its own citizens,” said former US trade negotiator Daniel Magraw in a statement cited by CIEL.

CIEL said that “Under USTR’s interpretation, USTR could withhold any document — even a document whose release would otherwise cause absolutely no harm — simply by entering into a confidentiality arrangement and arguing that the breach of that arrangement would undermine trust and cause damage to US foreign relations; the withholding would be insulated from judicial review.”

“Fortunately, FOIA limits what an agency can make confidential,” CIEL wrote in its appeals brief.

A date for oral argument before the DC Circuit Court of Appeals has not yet been set.