On the occasion of its 50th anniversary, the National Reconnaissance Office declassified and released thousands of pages of historical records documenting the development and operation of its GAMBIT and HEXAGON satellite programs.  At first glance, many of the documents appear to be interesting and substantial additions to the historical record on the subject.  (The associated satellite imagery does not yet seem to be available.)

For more than a decade, the most detailed illustrations of the KH-9 HEXAGON available to the public were a series of widely replicated line drawings prepared by Charles P. Vick in the 1990s (when he was at the Federation of American Scientists, as a matter of fact).  Now that the KH-9 has been formally declassified and put on public display, as it was last Saturday, it is possible to appreciate what a remarkably perceptive job Mr. Vick did in portraying the satellite’s structure and operation.

For other accounts of the NRO anniversary releases see “KH-9 Hexagon Spy Satellite Makes a Rare Public Outing” by Keith Cowing, September 17, and “Big Black Throws a Party” by Dwayne Day, The Space Review, September 19.

The White House reiterated its support for open government in a new report issued Friday afternoon.  But curiously, the 33-page document on “The Obama Administration’s Commitment to Open Government” (pdf) downplays or overlooks many of the Administration’s principal achievements  in reducing inappropriate secrecy.  At the same time, it fails to acknowledge the major defects of the openness program to date.  And so it presents a muddled picture of the state of open government, while providing a poor guide to future policy.

“At the President’s direction, federal agencies have promoted greater transparency, participation, and collaboration through a number of major initiatives,” the new report says. “The results of those efforts are measurable, and they are substantial. Agencies have disclosed more information in response to FOIA requests; developed and begun to implement comprehensive Open Government plans; made thousands of government data sets publically available; promoted partnerships and leveraged private innovation to improve citizens’ lives; increased federal spending transparency; and declassified information and limited the proliferation of classified information.”

Most of that is true, in varying degrees.  (However, there is no evidence that the proliferation of classified information has in fact been limited; the opposite is the case.)

And yet despite the abundance of itemized detail in the new report, it misses or misrepresents crucial aspects of what has been accomplished and what has not.

Particularly within the domain of national security secrecy, the report leaves out the Obama Administration’s boldest departures from past secrecy policies, suggesting that the White House itself is ambivalent or perhaps remorseful about them.  For example, the report does not mention these groundbreaking measures:

In April 2009, the President broke with prior policy and declassified four Office of Legal Counsel opinions on interrogation and torture that had been tightly held by the previous Administration.  (“OLC Torture Memos Declassified,” Secrecy News, April 17, 2009).  This act finally exposed the purported legal basis for some of the government’s most controversial actions of recent years, and for a while it seemed to promise a new attitude toward the use of secrecy.

In May 2010, the Obama Administration declassified the current size of the U.S. nuclear weapons arsenal for the first time ever.  (“Size of Nuclear Stockpile to be Disclosed,” May 3, 2010).  This is a category of information the disclosure of which had been sought without success for more than half a century, and its release created the potential for greater transparency and accountability in nuclear weapons policy.

In May 2011, the President personally ordered the declassification of an excerpt of a 1968 edition of the President’s Daily Brief — over the objections of intelligence agencies.  (“Obama Declassifies Portion of 1968 President’s Daily Brief,” June 3, 2011).  This act alone lent new substance to the otherwise rhetorical statement that “no information may remain classified indefinitely” and prompted a revision of entrenched prejudices concerning secret intelligence records.

For the first time ever, the Administration this year declassified and disclosed the size of the intelligence budget request for the coming year.  (“A New Milestone in Intelligence Budget Disclosure,” February 15, 2011).  In 1998, the Director of Central Intelligence declared under penalty of perjury that disclosure of such information would cause damage to national security.  But in the Obama Administration, that Cold War perspective has finally been abandoned even by the most senior intelligence officials.

These are among the most important changes in national security secrecy that have been accomplished in the Obama Administration.  So it is puzzling and disturbing that in its own “review of the progress the Administration has made” in promoting greater openness, the new report does not mention any of them.  For whatever reason, the White House does not seem to want to take “credit” for these actions, or to remind readers of them.

If the report minimizes the most positive achievements of secrecy reform to date, it also declines to acknowledge the serious failures of the President’s openness initiative.

Thus, it does not mention that during the first full year of the Obama Administration, the number of new national security secrets (or “original classification decisions”) actually increased by 22.6 percent, according to the latest annual report of the Information Security Oversight Office.  (“Transforming Classification, or Not,” May 18, 2011).  Because it does not include such significant adverse data, the White House report more closely approximates a public relations exercise than a candid account of the current status of openness.

The report alludes to new requirements in the President’s 2009 executive order 13256 that dictate “clarified, and stricter, standards for classifying information.”  But it does not mention that the Department of Defense, the largest classifying agency, failed to meet the President’s deadline for issuing implementing guidance for the new executive order.  The upshot is that many of those new requirements are not being fulfilled in practice, more than a year after the President’s order came into effect.  (“Secrecy Reform Stymied by the Pentagon,” February 24, 2011).  By not admitting such problems, the report also misses the opportunity to identify solutions to them.

Nor does the term “state secrets privilege” appear in the new report, although the Administration’s use of the privilege has been an impenetrable barrier to the resolution of many festering disputes on torture, rendition and surveillance.  Can one even speak of open government when individuals who have been victims of torture like Maher Arar and Khaled el-Masri are barred by secrecy from presenting evidence in a court of law or seeking some other lawful remedy?

The White House report demonstrates that the Obama Administration not only wants to be perceived as open, but that it actually has a commitment to open government.  In addition to the precedent-setting breakthroughs noted above, many of the openness initiatives discussed in the report, such as the access to agency information provided through the website Data.gov, are commendable and worthwhile.

But the report also shows that the Administration’s commitment lacks clarity, consistency, and self-confidence.  This makes it harder to build on the most notable and successful achievements of the past few years.

On Tuesday, September 20, President Obama will participate in the launch of the Open Government Partnership, a multi-national effort to foster open government practices around the world.

The National Reconnaissance Office, the agency that develops and operates U.S. intelligence satellites, is observing the 50th anniversary of its establishment in 1961 with a burst of declassification activity.

Tomorrow, September 17, the newly declassified KH-9 HEXAGON satellite will go on public display — for one day only — in the parking lot of the Udvar-Hazy Center of the National Air and Space Museum.

The KH-9 HEXAGON was a photographic reconnaissance satellite that was first launched in 1971 and ceased operation in the mid-1980s.  At sixty feet long and ten feet in diameter, it is said to be the largest intelligence satellite ever launched by the U.S.

The GAMBIT satellite is also to be unveiled at a Saturday evening reception.  In addition, “almost all” of the voluminous historical intelligence imagery captured by the KH-9 is expected to be released.

“The National Reconnaissance Office is a hybrid organization consisting of some 3,000 personnel that is jointly staffed by members of the Armed Services, the Central Intelligence Agency and Department of Defense civilians,” noted Rep. C.W. Bill Young yesterday. “Headquartered in Chantilly, Virginia, the National Reconnaissance Office launches from Cape Canaveral, FL and Vandenberg Air Force Base, California, while maintaining ground station operations in Virginia, Colorado, New Mexico, the United Kingdom, and Australia.”

After a series of expensive missteps in recent years, the National Reconnaissance Office now seems to be performing with growing consistency and reliability, having successfully launched six satellites in seven months over the past year.  (“NRO Has ‘Most Aggressive’ Launch Record in 25 Years,” Secrecy News, August 25, 2011).

It may be no coincidence that the NRO is the only intelligence agency whose expenditures are capable of being independently audited. For the last two years, the agency’s financial statements have been reviewed by an outside auditor.  And for the second time this year (pdf), the agency’s financial statements were found to “present fairly the financial position and the results of the organization’s operations in accordance with U.S. generally accepted accounting principles.”

By contrast, other U.S. intelligence agencies are not and cannot be audited.  They simply do not generate the type of data that would enable an independent reviewer to verify the integrity of agency expenditures.

It will not be feasible to audit the other large intelligence agencies for several more years, said Director of National Intelligence James R. Clapper last Tuesday.  “Right now our stated objective, I think, is to be fully auditable by 2016,” he told a joint hearing of the House and Senate Intelligence Committees.

For those who may not have been paying attention, “A small group of developing countries are transforming the global economic landscape,” the Congressional Research Service observed in a report last month.  “Led by China, India, and Brazil, these rising economic powers pose varied challenges and opportunities for U.S. economic interests and leadership of the global economy.”  See “Rising Economic Powers and the Global Economy: Trends and Issues for Congress” (pdf), August 22, 2011.

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

“Cost-Benefit and Other Analysis Requirements in the Rulemaking Process,” August 30, 2011

“Climate Change: Conceptual Approaches and Policy Tools,” August 29, 2011

“Financing Recovery After a Catastrophic Earthquake or Nuclear Power Incident,” August 25, 2011

“Addressing the Long-Run Budget Deficit: A Comparison of Approaches,” August 25, 2011

“Homeland Security Department: FY2012 Appropriations,” September 2, 2011

“Congressional Primer on Major Disasters and Emergencies,” August 31, 2011

The U.S. military says it is taking a more assertive stance against the proliferation or use of weapons of mass destruction.

Newly updated tactical military doctrine “represents a major shift from the former, passive defense nature against nuclear, biological, and chemical weapons to a broader, active, and preventive approach toward a wider range of CBRN [chemical, biological, radiological, and nuclear] threats and hazards,” according to a new manual (pdf) on CBRN Operations.

The new posture constitutes “a significant doctrinal shift from ‘reactive’ to ‘proactive’ military capabilities.  These actions are being performed at the tactical level, perhaps, now more than ever,” the unclassified manual said.  See “Multi-Service Doctrine for Chemical, Biological, Radiological, and Nuclear Operations,” U.S. Army Field Manual 3-11, July 2011.

The manual states that in accordance with international law, “The United States will never use chemical weapons.” Likewise, “The United States will never use biological weapons.”

However, “The United States may use nuclear weapons to terminate a conflict or war at the lowest acceptable level of hostilities.”  (That stark statement is not new, and appeared in prior doctrine published in 2003.)

The authority of the President to use military force without congressional authorization and the ability of Congress to limit or regulate such use are discussed in a new report (pdf) from the Congressional Research Service.

At issue are the scope and priority of basic constitutional terms, including the definition of the President’s role as commander in chief, the authority of Congress to declare war, and its ability to appropriate or to withhold funds for military operations.

No final answers can be provided.  However, “it is generally agreed that Congress cannot ‘direct campaigns,’ but that Congress can regulate the conduct of hostilities, at least to some degree, and that Congress can limit military operations without the risk of a presidential veto by refusing to appropriate funds,” the CRS report said.

“To date,… no court has invalidated a statute passed by Congress on the basis that it impinges the constitutional authority of the Commander in Chief, whether directly or indirectly through appropriations,” the report noted. “In contrast, presidential assertions of authority based on the Commander-in-Chief Clause, in excess of or contrary to congressional authority, have been struck down by the courts.”

The political, ideological or institutional obstacles to the independent exercise of constitutional authority by Congress, which may run even deeper than any legal constraints, are not addressed here.

A copy of the new report was obtained by Secrecy News. See “Congressional Authority to Limit Military Operations,” September 8, 2011.

A government “motion for clarification and reconsideration” of a court order that limited the obligation of reporter James Risen to testify at the upcoming trial of former CIA officer and accused leaker Jeffrey Sterling should be rejected, Risen’s attorneys argued (pdf) yesterday.

There is no need for “clarification” of the court’s July 29 order (pdf), they said, since it is perfectly clear.  Mr. Risen does not need to do more than to authenticate his authorship of a book he wrote, the court said, and to attest to its accuracy.

And there is no legitimate basis for “reconsideration,” they argued, since there has been no intervening change in the law and no evidence of judicial error.

“The Government says nothing… beyond a rehash of the Government’s prior arguments and offers nothing sufficient to alter the balancing of interests already performed by this Court,” Mr. Risen’s attorneys wrote.

Similar arguments against a subpoena were also offered yesterday by Mr. Sterling’s attorneys, who added:  “Every time the Government appeals to this Court to admit some new or additional subject matter of Mr. Risen’s proposed testimony, the Court should be reminded how little evidence the Government really has in this case.”

The prosecution has “a compelling interest in Mr. Risen’s eyewitness testimony” which is “critical to the case,” the government has argued (pdf).  (“Leak Prosecutors Press Again for Subpoena of Risen,” Secrecy News, September 6, 2011).

The latest edition of “The News Media & The Law,” the quarterly publication of the Reporters Committee for Freedom of the Press, includes several articles on the theme of “Journalists, Whistleblowers and National Security.”

Rep. Walter B. Jones (R-NC) paid tribute to military intelligence officer Lt. Col. Anthony Shaffer in a statement entered into the Congressional Record yesterday.

“Col. Shaffer’s storied career has been distinguished by his willingness and ability to work at the cutting edge of our nation’s intelligence community,” Rep. Jones said.

Though it was not mentioned by the Congressman, Shaffer is also the author of a book called “Operation Dark Heart,” which was memorably and ineffectively censored by the U.S. Government.  The Pentagon purchased 10,000 copies of the original version of the book in order to destroy them, but then a small number of uncensored review copies became public anyway.  (“Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010)

The growing use of social media — such as Twitter and Facebook — in responding to emergency situations is examined in a new report (pdf) from the Congressional Research Service.

“In the last five years social media have played an increasing role in emergencies and disasters,” the report notes. “Social media sites rank as the fourth most popular source to access emergency information. They have been used by individuals and communities to warn others of unsafe areas or situations, inform friends and family that someone is safe, and raise funds for disaster relief.”

While they have still untapped potential for improving emergency communications, social media can also be used — inadvertently or maliciously — to disseminate false or misleading information, the report observes. See “Social Media and Disasters: Current Uses, Future Options, and Policy Considerations,” September 6, 2011.

With few exceptions, congressional leaders of both parties are opposed to allowing direct public access to Congressional Research Service reports like this one.  Perhaps they wish to foster a healthy public skepticism about the validity of official restrictions on government information, or a heightened appreciation for unauthorized disclosures.

At any rate, some recent CRS reports that are not publicly available from CRS include the following (all pdf).

“India: Domestic Issues, Strategic Dynamics, and U.S. Relations,” September 1, 2011. (This report notes in passing the curious statistic that “some 40% of American hotel rooms are owned by Indian-Americans.”)

“Desalination: Technologies, Use, and Congressional Issues,” August 15, 2011.

“U.S. Energy: Overview and Key Statistics,” July 29, 2011.

“U.S. Renewable Electricity Generation: Resources and Challenges,” August 5, 2011.

A newly updated doctrinal publication from the Joint Chiefs of Staff describes the infrastructure of legal review and support to all phases of military operations.

“It is DoD policy that members of the DoD components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations.”

“Legal advisors actively participate in the entire planning process from joint intelligence preparation of the operational environment […], to mission analysis, to course of action development and recommendation, through execution.”  See “Legal Support to Military Operations” (pdf), Joint Publication 1-04, August 17, 2011.

The legal and constitutional framework for military operations, intelligence collection and other national security activities is explored in depth in the new edition of “National Security Law,” the preeminent casebook on <the subject for law students.  It presents concise treatments of dozens of topics — from secrecy to rendition and interrogation — with case studies and questions for discussion.

See “National Security Law” by Stephen Dycus, Arthur L. Berney, William C. Banks, and Peter Raven-Hansen, Fifth Edition, Aspen Publishers, August 2011.

A draft resolution (pdf) prepared for the inter-parliamentary Council of Europe bluntly criticized the “cult of secrecy” in the United States and other nations and it praised the role of whistleblowers in helping to challenge the abuse of secrecy authority.

“In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation,” the draft resolution stated.

The draft, written by Dick Marty of Switzerland, was approved September 7 by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe.  It is to be debated by the full Assembly next month.  See “Abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations,” provisional version, September 7.

The document criticized various member nations for failing to conduct probes of detentions and abductions that were reportedly carried out by or in cooperation with the CIA.  The author acknowledged the existence of legitimate secrets, but stressed the need to enforce legal norms even, or especially, in the domain of national security.

“The Assembly recognises the need for states to ensure effective protection of secrets affecting national security. But it considers that information concerning the responsibility of state agents who have committed serious human rights violations, such as murder, enforced disappearance, torture or abduction, should not be subject to secrecy provisions,” the draft resolution said.

The document pointed approvingly to Canada’s response to the case of Maher Arar, a Canadian who was seized in New York, deported to Syria by the CIA and tortured, though he was guilty of no crime.  The government of Canada apologized for the episode and provided financial compensation to Arar.  But under U.S. law, by contrast, Arar was not permitted even to argue his case in court and to seek a remedy, after the government invoked the “state secrets” privilege.

“As Canada demonstrated in the Maher Arar case, it is possible to put in place special procedures for the supervision of the activities of the special services guaranteeing both the adequate protection of legitimate state secrets and the protection of fundamental rights and freedoms,” the draft resolution said.  The U.S. government and the American legal system were incapable of achieving a comparable outcome to the case.

“We are confronted with a real cult of secrecy,” the document said. “It is therefore justified to say that whistleblowers play a key role in a democratic society and that they contribute to making up the existing deficit of transparency.”

The resolution praised the role of WikiLeaks in publishing “diplomatic reports confirming the truth of the allegations of secret detentions and illegal transfers of detainees.”  But it also stated that “It is essential that such disclosures are made in such a way as to respect the personal safety of informers, human intelligence sources and secret service personnel” — a condition that WikiLeaks has repeatedly failed to fulfill.

The resolution proposed several “basic principles for judicial and parliamentary scrutiny of the secret services” in democratic nations, along with recommendations to improve such oversight.

Most fundamentally, it said, “Breaches of the law and comparable abuses by agents of the Government are not by their nature legitimate secrets.”