Congress is the most transparent and publicly accessible branch of government, and yet there are many aspects of the legislative process that are opaque and off-limits to public awareness, according to a disquisition on legislative secrecy from the Congressional Research Service.

“Compared with the White House, the executive branch, and the Supreme Court, the U.S. Congress is the most transparent national governmental institution,” the CRS report said.  “Yet the congressional process is replete with activities and actions that are private and not observable by the public.”

“Both secrecy and transparency suffuse the lawmaking process,” the report said. “Legislative secrecy has clearly declined over the decades, but it has been part of the policymaking process from Congress’s very beginning, and it remains an integral aspect of the lawmaking process.”

“Today, Congress operates largely in the sunshine. Ironically, studies have shown that the more open Congress has become, the less the citizenry like what they see, hear, and read about the lawmaking process.”

The report describes the motivations and occasions for legislative secrecy, which it says can facilitate legislative negotiations, promote candor, and foster free deliberation.  The CRS report does not mention the congressional policy of denying direct public access to CRS reports, or the persistent public efforts to defeat that policy.

See “Congressional Lawmaking: A Perspective On Secrecy and Transparency,” November 30, 2011.

Director of National Intelligence James Clapper has issued a new Intelligence Community Directive on “Congressional Notification” (pdf) that generally encourages “a presumption of notification” to Congress regarding significant intelligence activities.

The November 16 directive, designated ICD 112, elaborates on the intelligence community’s responsibility to keep the congressional oversight committees “fully and currently informed” of U.S. intelligence activities, which is required by the National Security Act.

Among the types of activities that would normally warrant congressional notification, the directive says, are:

— intelligence activities that entail significant risk of exposure, compromise, and loss of human life;

— activities undertaken pursuant to specific direction of the President or the National Security Council, other than covert action (which is subject to a separate reporting requirement);

— a significant unauthorized disclosure of classified intelligence information;

— a conclusion that an intelligence product is the result of foreign deception or denial activity, or otherwise contains major errors in analysis;

— intelligence activities that are believed to be in violation of U.S. law; and so forth.

“Not every intelligence activity warrants written notification,” the directive says.  That determination is “a judgment based on all the facts and circumstances known to the IC element, and on the nature and extent of previous notifications and briefings to Congress on the same matter…. If it is unclear whether a notification is appropriate, IC elements should decide in favor of notification.”

The required notifications “shall contain a concise statement of the pertinent facts, an explanation of the significance of the intelligence activity, and the role of all departments and agencies involved in the intelligence activity.”

Congress has the constitutional authority to conduct its business in secret and to close its proceedings to the public whenever it deems secrecy necessary.  A new report from the Congressional Research Service reviews the justification, history and frequency of secret sessions of Congress.

“Since 1929, the Senate has held 56 secret sessions, generally for reasons of national security or for consideration of impeachment questions. On December 20, 2010, for example, the Senate met in closed session to discuss the New START Treaty with Russia,” the CRS report said.  “Since 1830, the House has met behind closed doors only four times: in 1979, 1980, 1983, and 2008.”

“The proceedings of a secret session are not published unless the relevant chamber votes, during the meeting or at a later time, to release them. Then, those portions released are printed in the Congressional Record.”  See “Secret Sessions of the House and Senate: Authority, Confidentiality, and Frequency,” November 30, 2011.

Pending legislation to authorize and require military detention of suspected terrorists — which advanced in the Senate yesterday — was examined, section by section, in a Congressional Research Service report that was updated earlier this month.  See Detainee Provisions in the National Defense Authorization Bills, November 18, 2011.

Other new or newly updated CRS reports that have not been made readily available to the public include the following (all pdf).

Afghanistan Casualties: Military Forces and Civilians, November 16, 2011

Russia’s Accession to the WTO and Its Implications for the United States, November 16, 2011

Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement, November 14, 2011

Gun Control Legislation, November 7, 2011

Homeland Security Department: FY2012 Appropriations, November 2, 2011

The history, missions and operations of the nine U.S. military combatant commands (COCOMs) are detailed in a new report from the Congressional Research Service.

Collectively, these military commands operate across the globe.  “In a grand strategic sense, the [Unified Command Plan] and the COCOMs are the embodiment of U.S. military policy both at home and abroad.  The COCOMs not only execute military policy but also play an important role in foreign policy,” the CRS said.

The CRS report presents some critical discussion of the role of the COCOMs in shaping U.S. policy.  The report cites a series of stories by Dana Priest in the Washington Post in September 2000 which said the COCOMs “had evolved into the modern-day equivalent of the Roman Empire’s proconsuls– well-funded, semi-autonomous, unconventional centers of U.S. foreign policy.”

“Some national security experts consider this [Washington Post] series as the catalyst of the continuing debate as to whether or not COCOMs have assumed too much influence overseas, thereby diminishing the roles other U.S. government entities play in foreign and national security policy,” the CRS report said.  “The assertion that COCOMs have usurped other U.S. government entities in the foreign policy arena may deserve greater examination,” the report added.

Congress has prohibited CRS from making its publications directly available to the public.  A copy of the report was obtained by Secrecy News.  See “The Unified Command Plan and Combatant Commands: Background and Issues for Congress,” November 7, 2011.

The expanding role of women in combat is examined in another new report from the Congressional Research Service.

“Laws prohibiting women from serving in combat units were repealed in the early 1990s,” the CRS report noted. “However, since then, it has been U.S. military policy to restrict women from certain units and military occupations, especially ground combat units. In recent years, efforts have been underway to remove these restrictions. Opponents have questioned the need to modify or remove these restrictions and the purposes for doing so.”

Meanwhile, “In 10 years of combat operations in Iraq and Afghanistan, thousands of female members have been deployed, and hundreds wounded and/or killed. According to the Department of Defense (DOD), as of August 31, 2011, over 26,000 female members were serving in Iraq and Afghanistan. On numerous occasions women have been recognized for their heroism, two earning Silver Star medals.”  See “Women in Combat: Issues for Congress,” November 8, 2011.

The Privacy and Civil Liberties Oversight Board that was supposed to provide independent oversight of U.S. counterterrorism policies remains dormant and out of service because its members have still not been named and confirmed.

In a report that was newly updated this month, the Congressional Research Service traced the origins of the Board from a recommendation by the 9/11 Commission through its initial establishment as a White House agency to its reconstitution as an independent agency chartered by statute in 2007.

The Board was assigned two overriding missions: It was supposed to “analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties”;  and to “ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”

So had the Board been functional, it might have been a valuable participant in current deliberations over military detention authority, for example.  It might also have conducted investigative oversight into any number of other counterterrorism policies, as mandated by law.  But for all practical purposes, there is no Board.

Last January, President Obama named Elisebeth C. Cook and James X. Dempsey to serve on the Board.  The Senate has not acted on their nomination.  Even if they had been confirmed, however, they would not have constituted a quorum.  Thus, the Board’s activation is still dependent on presidential nomination of additional Board members.  See “Privacy and Civil Liberties Oversight Board: New Independent Agency Status,” November 14, 2011.

The three ongoing prosecutions under the Espionage Act of individuals who allegedly “leaked” classified information to the press are slowly moving forward.

Prosecutors will present their opening brief to an appeals court in the case of Jeffrey A. Sterling, a former CIA officer who is accused of leaking classified information to author James Risen, on January 13, 2012, according to a proposed briefing schedule that was filed yesterday.

The prosecution of Sterling has been suspended in lower court while the government appeals several court rulings that it considers unfavorable.

Specifically, the government wants to overturn the court’s finding that Mr. Risen is protected by a “reporter’s privilege” and cannot be compelled to identify his source.  Prosecutors also want to reverse what they described as an order relating to the Classified Information Procedures Act (CIPA) that the identity of certain government witnesses must be disclosed to the defendant and the jury.  Finally, they are appealing an order that eliminated two potential government witnesses because prosecutors failed to disclose adverse information about the witnesses in a timely manner, a November 9 docketing statement said.

Interestingly, defense attorneys deny that the second issue involving disclosure of witness identities is a CIPA issue that can be appealed at this stage.  They point out that “No order has been entered by the District Court allowing the defendant, over the Government’s objection, to disclose any classified information.  No sanctions have been imposed upon the Government for refusing to allow for the disclosure of any classified information by the defendant in any manner.”  Therefore, “Mr. Sterling does not agree that this appeal raises any issues appealable under CIPA.”

It was also announced yesterday that the case of Army Private Bradley Manning, the suspected WikiLeaks source, will proceed to what is called an Article 32 hearing on December 16 at Fort Meade, Maryland.

“The primary purpose of the Article 32 hearing is to evaluate the relative strengths and weaknesses of the government’s case as well as to provide the defense with an opportunity to obtain pretrial discovery,” according to Private Manning’s attorney, David E. Coombs. “The defense is entitled to call witnesses during the hearing and to also cross examine the government’s witnesses.”

The other ongoing leak prosecution under the Espionage Act is that of former State Department contractor Stephen Kim, who is accused of leaking classified information to Fox News reporter James Rosen.  The prosecution of Mr. Kim is still in an early stage of pre-trial discovery, according to a November 15 status report.

The U.S. government response to the Lord’s Resistance Army (LRA), a brutal paramilitary group in Uganda, is discussed in a new report from the Congressional Research Service.

The Obama Administration has provided humanitarian and operational support to Ugandan efforts to counter the LRA.  Most recently, the U.S. has authorized the deployment of U.S. military advisers to assist the Ugandan military in the anti-LRA campaign.

“The U.S. approach to the LRA raises a number of issues for policymakers, some of which could have implications far beyond central Africa,” the CRS report said. “A key question, for some, is whether the response is commensurate with the level of threat the LRA poses to U.S. interests, and whether the deployment of U.S. military personnel could lead to unintended consequences. More broadly, decisions on this issue could potentially be viewed as a precedent for U.S. responses to similar situations in the future.”

A copy of the new report was obtained by Secrecy News.  See “The Lord’s Resistance Army: The U.S. Response,” November 21, 2011.

The JASON defense advisory panel held its fall meeting last weekend with briefings on a range of national security topics.  A copy of the program from the closed meeting is posted here.

The JASONs completed at least seven studies this year for various government agencies with titles such as “Solar EMP” and “Domestic Nuclear Surge Operations.”  Secrecy News has requested review of those studies for public release.

U.S. government programs to identify and deport criminal aliens were detailed in an exhaustive report (pdf) from the Congressional Research Service.

The Department of Homeland Security has four programs that deal with criminal aliens, which are discussed in the report.

“While consensus exists on the overarching goal to identify and remove serious criminal aliens, these programs have generated controversy,” CRS said, on grounds that “the programs may have adverse impacts on police-community relations, may result in racial profiling, and may result in the detention of people who have not been convicted of criminal offenses and may not be subject to removal.”

CRS estimated that the number of noncitizens incarcerated in federal and state prisons and local jails – “a subset of all criminal aliens” – was 173,000 in 2009.

See “Interior Immigration Enforcement: Programs Targeting Criminal Aliens,” October 21, 2011.

The New York Times reported today that DHS “will begin a review on Thursday of all deportation cases before the immigration courts… with the goal of speeding deportations of convicted criminals and halting those of many illegal immigrants with no criminal record.”  See “U.S. to Review Cases Seeking Deportations” by Julia Preston, New York Times, November 17.

Some other new Congressional Research Service reports obtained by Secrecy News are linked below (all pdf).  Pursuant to congressional policy, CRS has been prohibited from making them directly available to the public.

“Military Retirement Reform: A Review of Proposals and Options for Congress,” November 17, 2011

“FY2012 Appropriations Overview: Status of Discretionary Appropriations Legislation,” November 10, 2011

“U.S. Natural Gas Exports: New Opportunities, Uncertain Outcomes,” November 4, 2011

“Legislative Branch Agency Appointments: History, Processes, and Recent Proposals,” November 1, 2011

“Economic Growth and the Unemployment Rate,” October 28, 2011

“Presidential Policy Directive 8 and the National Preparedness System: Background and Issues for Congress,” October 21, 2011

The eagerly awaited declassification of vast amounts of historical intelligence satellite imagery that was supposed to occur this year did not take place, and it is unknown when or if it might go forward.

Earlier this year, government officials had all but promised that the declassification and release of miles of satellite imagery film was imminent.

“The NGA [National Geospatial-Intelligence Agency] is anticipating the potential declassification of significant amounts of film-based imagery… in 2011,” the Agency stated in a solicitation that was published in Federal Business Opportunities on February 14, 2011.  (“Large Release of Intelligence Imagery Foreseen,” Secrecy News, February 28, 2011).

“Almost all” of the historical intelligence imagery from the KH-9 satellite (1971-1986) should be declassified within a few months, said Douglas G. Richards of the Pentagon’s Joint Staff at an August 23, 2011 public forum of the National Declassification Center.

But it didn’t happen.  Why not?

“I have no additional information to provide you concerning the status of this declassification effort,” said Mr. Richards by email this week.  “The Joint Staff completed its participation with the action a few months ago, consequently, I don’t know its current status.  Recommend contacting NGA for additional information.”

An NGA spokesman said that the Agency is still weighing the issue and that it will eventually make a recommendation to the Director of National Intelligence on how to proceed.  But it has not yet done so, and there is no particular deadline for it to reach a conclusion on the issue.

“The Director of National Intelligence (DNI) has requested that NGA review the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings for the purpose of making a recommendation to the DNI for possible declassification,” said NGA public release officer Paul R. Polk in a November 10 email message to Prof. Chris Simpson of American University.

“At this time, NGA is conducting an ongoing review of the materials and will make its recommendations to the DNI once the evaluations are completed.”

“If the DNI decides to declassify the subject imagery (or portions thereof), NGA will then need to develop a systematic method for transitioning the holdings over to the National Archives and Records Administration (NARA) for the purpose of making these records available to the general public.”

“In short, NGA cannot at this time advise as to what portions of the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings will be declassified by the DNI, or when they may be available for purchase from NARA,” wrote Mr. Polk in his message to Prof. Simpson.

It is difficult to discern what is going on behind the scenes here.  One official suggested that the public announcements of impending declassification may have had the unintended effect of triggering latent opposition to the move and preventing its implementation.

There is a history of contention over imagery declassification dating back to President Clinton’s 1995 executive order 12951, which declassified imagery from the Corona, Argon and Lanyard intelligence reconnaissance programs.

The Clinton order was a historic development in intelligence policy that was enthusiastically welcomed by scientists, environmentalists and many others at the time.  But it also contained some problematic language that made subsequent declassification action more difficult than it would have been otherwise.  The order stated that intelligence imagery from satellite programs other than Corona, Argon and Lanyard “shall be kept secret… until deemed otherwise by the Director of Central Intelligence.”

Intelligence officials seized upon this language to argue that satellite imagery had been “carved out” of the normal procedures for automatic and systematic declassification.  They insisted that any future release of such imagery was exclusively within the discretion of the DCI (later the DNI), who simply declined to exercise that discretion.

A compelling counterargument can be made that this Clinton order language (or this interpretation of the language) was superseded by later executive orders, including EO 13526, which stated that “no information may be excluded from declassification… based solely on the type of document or record in which it is found” (sect. 3.1g).

But although the debate might have been won in theory, it has been effectively lost in practice.  Contrary to prior official statements, there will be no further declassification of historical satellite imagery in 2011, and no one can say when it might resume.