Former CIA officer Jeffrey A. Sterling, who is suspected of leaking classified information to New York Times reporter James Risen, this week asked a court to issue subpoenas (pdf) for staff and records of the U.S. Senate Select Committee on Intelligence.  The move is part of a defense strategy to show that it was Senate staffers rather than Mr. Sterling who leaked the classified information in question.

“Mr. Sterling is charged with unlawfully disclosing classified information to a third party [i.e., Mr. Risen] not authorized to receive the information,” Sterling’s July 11 motion explained. “An obvious defense at trial will be that any disclosure to the third party was done by another person or by multiple individuals — and not by Mr. Sterling.”

“Specifically, Mr. Sterling spoke to staff members of the United States Senate Select Committee on Intelligence in March 2003 about the Classified Program underlying the charges in the Indictment. These conversations were all lawful. Discovery in this case has revealed that Mr. Sterling spoke to two Committee staff members, Donald Stone and Vicky Divoll, and that they briefed a third Committee staff member, Lorenzo Goco. Less than a month after Mr. Sterling’s conversation with the Senate staffers, Mr. Risen contacted the C.I.A. requesting comments for an article on Classified Program No. 1. The timing is highly suggestive that it was one of the staff members and not Mr. Sterling who unlawfully disclosed classified information.”

The subpoenas were first reported by Josh Gerstein in Politico (“Alleged CIA leaker wants to subpoena Senate and intel panel aides,” July 11).

Proposing a potential alternative source for the unauthorized disclosure, while a sensible tactic for the defense, might have the unintended consequence of increasing the pressure for Mr. Risen to testify.  Prosecutors are already urging the court to grant a subpoena for Risen to clarify the facts of the matter.  Even if he is not compelled to identify his source, he might still be pressed to confirm who was not his source.

An article in the Russian edition of Forbes magazine this week somewhat facetiously considered the tourism potential of Russia’s secretive and tightly secured closed cities.

“In today’s Russia there are 42 closed administrative territorial entities — or ZATOs — surrounded by rows of barbed wire and guarded by armed patrols. They belong to the Ministry of Defense, Rosatom (State Corporation for Atomic Energy), and Roskosmos (Federal Space Agency),” the article (in Russian) said.

“A special pass is needed in order to gain access to the territory of a ZATO. This is most readily available to anyone who has close relatives resident in a closed city. A pass is also issued to people who have got a job in a ZATO or who have found themselves a husband or a wife among the local residents.”

“But there are also more circuitous routes, of course. From time to time some ZATOs stage cultural and sports events to which outside participants are invited. But the most desperate simply find holes in the fence or steal their way into a city along secret paths. In this context, admittedly, consideration has to be given to the fact that gaining unlawful access to the territory of a ZATO carries the risk of administrative punishment in the form of a fine and immediate expulsion from the territory.”

“Forbes has selected 10 closed cities in Russia that are worth a visit. Or at least worth the attempt.”  The profiled cities include Krasnoyarsk, Zelenogorsk, Kapustin Yar, Lesnoy, Mirnyy, Novouralsk, Ozersk, Sarov, Severomorsk, and Snezhinsk.

The enticing Snezhinsk “is full of mysterious artifacts that have been preserved from Soviet times: structures whose purpose is unknown, ventilation pipes that protrude from the ground in the very heart of the city, tunnels leading off into the unknown.”

The 2008 book “A Nuclear Family Vacation: Travels in the World of Atomic Weaponry” by Nathan Hodge and Sharon Weinberger included a chapter on Russia’s closed cities.

In 2005, the U.S. Army issued a new field manual on the military use of dogs, which it said were being “employed in dynamic ways never before imagined.”  The field manual was approved for public release and marked for unlimited distribution.  See FM 3-19.17, “Military Working Dogs” (pdf), 6 July 2005.

But in May 2011, the same Army manual on military working dogs (redesignated as ATTP 3-39.34) was updated, and this time its distribution has been limited to DoD and DoD contractors only.  Public access to the document is barred.  At the same time, copies of the unrestricted 2005 edition have been removed from Army websites.  (A copy is still available through the Federation of American Scientists web site.)

The net loss of public access to information in this case illustrates a new trend that is at odds with the Obama Administration’s declared policy.  Although the President promised to create “an unprecedented level of openness in Government,” in practice new barriers to access to unclassified information continue to arise.

Last November, the Obama Administration issued an executive order on “Controlled Unclassified Information” that was intended to reverse “unnecessarily restrictive dissemination policies” involving unclassified information and to “emphasize… openness.” Among other things, the order was intended to eliminate the thicket of improvised access controls on unclassified information (such as “for official use only” and so forth) and to authorize restrictions on access only where required by law, regulation or government-wide policy.

But last month the Department of Defense issued a proposed new rule that appears to subvert the intent of the Obama policy by imposing new safeguard requirements on “prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).”

By “grandfathering” those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy.

Even more broadly, the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded.  It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information.

“Unclassified Government information shall not be posted on websites that are publicly available or have access limited only by domain/Internet Protocol restriction,” the proposed rule baldly states at one point.

The breathtaking implications of the DoD proposal have come as a shock not only to those who still believe in the possibility of open government, but to the DoD contractors who are expected to implement the sweeping new policy.  See “Contractors resist DoD’s tougher info rules” by Sean Reilly, Federal Times, July 10.

Meanwhile, many executive branch agencies have not met their obligations to post basic agency information on their web sites, such as staff directories, reports to Congress, and congressional testimony, according to a new survey from Openthegovernment.org.

A proposed new rule published for comment by the National Archives and Records Administration (NARA) last week would establish updated new procedures for the declassification of historical records containing national security information.

The proposed rule tracks fairly closely with President Obama’s December 2009 executive order 13526, and thus highlights some of the limitations of that order, especially with respect to the practice of “automatic declassification.”

In 1995, President Clinton issued executive order 12958 which stated that permanently valuable historical records that are 25 years old or older “shall be automatically declassified whether or not the records have been reviewed” unless they are specifically exempted.  This was a dramatic break with past practice, in which declassification and disclosure without prior review were practically unthinkable.

Unfortunately, that Clinton requirement was implemented imperfectly or not at all, and some of the sharper edges of automatic declassification have been blunted by the Bush and Obama Administrations (and by Congress).  Under the proposed new NARA rule, for example, non-exempt historical records can remain classified for as long as 35 years if they are part of an “integral file block” that also contains records that are merely 25 years old.  And if a collection of records more than 25 years old is discovered that was “inadvertently not reviewed,” that does not mean the records are automatically declassified as the executive order originally promised (“whether or not the records have been reviewed”).  Rather, those old records may remain classified for up to three more years to enable review.

Since these concessions to continued secrecy in the proposed NARA rule are specifically authorized by the President’s executive order, there is probably little possibility of altering them at this point.

But in other respects, the proposed NARA rule seems to deviate from and to fall short of the executive order.  For example, it does not even mention the President’s fundamental declaration that “No information may remain classified indefinitely” (EO 13526, sec. 1.5d).  So it does not even attempt to draw any consequences for declassification policy from this basic statement of principle — thereby diminishing the significance of the statement itself.

And except for an oblique reference to an “upcoming exemption expiration,” the proposed NARA rule is silent on the “fifty year rule” in the executive order, which requires that any records that are exempted from automatic declassification at 25 years old must be declassified by the time they reach 50 years (except where they would identify a confidential human source or reveal key design concepts for weapons of mass destruction).

Although the fifty year rule does not formally take effect until June 2013, it already has practical implications for declassification policy today.  For example, it means that NARA should not expend much effort on declassification review of records that are nearly 50 years old (or older), since these records are supposed to be automatically declassified without review in the near future.  And it means that efforts to identify any remaining exempted material (regarding confidential human sources or WMD design) in such 50 year old records need to get underway soon.

Public comments on the proposed NARA rule are due by September 6, 2011.

Government attorneys yesterday told a federal court that most of last year’s grand jury proceedings in which New York Times reporter James Risen was subpoenaed to testify should remain secret in the public interest.  The grand jury subpoena against Risen was ultimately quashed in a November 30, 2010 order (pdf) that was unsealed last week.

In a separate court order (pdf) last week, Judge Leonie M. Brinkema had asked the government to review Mr. Risen’s prior motion to quash the grand jury subpoena and the government motions filed in response, and to advise whether it would agree to have all of those grand jury pleadings unsealed and released in redacted, declassified form.  Doing so, she said, would help to inform the current prosecution of former CIA officer Jeffrey Sterling, in which Mr. Risen has again been subpoenaed.

“Given the significant legal issues raised in these pleadings and their relevance to the publicly filed case against Jeffrey Sterling, the public interest in access is strong and any further sealing should be kept to a minimum,” Judge Brinkema wrote on June 28.

The government attorneys yesterday rejected that view.

“The government has reviewed the grand jury pleadings, and respectfully believes that the need for grand jury secrecy continues to outweigh any public interest in disclosure,” they wrote (pdf).

Disclosure of the pleadings is unnecessary, they said, since “the legal issues raised in the grand jury pleadings are currently being litigated publicly through the government’s motion in limine (pdf) and James Risen’s motion to quash the issuance of a trial subpoena served upon him. The unsealing of this Court’s November 2010 Memorandum Opinion more than suffices to inform the public about the grand jury proceedings and puts the current litigation involving the trial subpoena issued to Risen in its proper context,” the July 6 response said.

Moreover, “unsealing all of the grand jury pleadings relating to the motion to quash carries considerable risks. Many indicted cases involve pre-indictment litigation that presents unique and significant legal issues, but such a rationale is not sufficient to overcome the strong public policy interests in secrecy. To allow the unsealing of grand jury pleadings on that basis alone would discourage prospective witnesses from testifying fully and freely before future grand juries. No witness would ever know if his or her testimony was associated with a future, significant legal issue and thus subject to disclosure,” the government response said.

Today, attorneys argued before Judge Brinkema over the current subpoena for Mr. Risen in the ongoing case of Jeffrey Sterling.  Prosecutors suggested that a failure to compel Mr. Risen to testify might force an acquittal of Mr. Sterling, reported Josh Gerstein in Politico.

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

Enforcement of Congressional Rules of Conduct: An Historical Overview, June 14, 2011

Mandatory Spending Since 1962, June 15, 2011

Veterans and Homelessness, June 15, 2011

Iran Sanctions, June 22, 2011

Congressional Oversight Manual, June 10, 2011

To admit the possibility of a “good leak” of classified information would undermine the entire classification system, government attorneys told a court (pdf) last week, and therefore it should not do so.

The government’s statement was presented in a response to New York Times reporter James Risen’s June 21 motion to quash a subpoena to compel him to testify in the case of Jeffrey A. Sterling, a former CIA officer who is accused of disclosing classified information to Risen without authorization.

In his motion to quash, Mr. Risen had urged the court to consider “the public interest in newsgathering, measured by the leaked information’s value” and the damage to the public interest which would ensue from compelling him to testify.

But the government said the court should do no such thing.

“[E]xplicitly recognizing ‘good leaks’ of classified information… would effectively destroy the system through which the country protects that information,” the government said in its July 1 response.

“It would encourage government employees who are provided access to classified information to betray their commitment to safeguard it by suggesting that they, too, should undertake their own independent analysis of the effect of their disclosure of that information should they desire to do so.  It would also provide a ready-made defense for every disgruntled intelligence community employee or contractor who discloses such information to the press because he harbors a grudge against the institution for which he works,” the government attorneys argued (p. 28).

From a different perspective, “good leaks” are a uniquely effective remedy to what President Obama once called “the problem of over classification.”  Unless and until overclassification can be curtailed through other means, some types of leaks serve as a necessary safety valve, especially when they reveal classified information involving criminal activity, misconduct or mismanagement.

In its response to Risen, the government argued forcefully against Risen’s invocation of a reporter’s privilege and urged the Court to require him to testify in the Sterling case.  The legal issues will be argued before the court at a July 7 hearing.  See related coverage in Politico and the Washington Post.

The latest issue of the Journal of National Security Law & Policy (vol. 5, no. 1) presents several papers on secrecy, disclosure, and related topics by authors including David Kris, Louis Fisher, Geoffrey Stone and Stephen Vladeck, among others.

Titles include “The Publication of National Security Information in the Digital Age,” “Burn After Viewing: The CIA’s Destruction of the Abu Zubaydah Tapes and the Law of Federal Records,” and “Law Enforcement as a Counterterrorism Tool.”

For subscription information and to read the articles online see here.

Recent reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues, June 20, 2011

The U.S.-Canada Energy Relationship: Joined at the Well, June 17, 2011

Foreign Assistance: Public-Private Partnerships (PPPs), June 13, 2011

Considerations for a Catastrophic Declaration: Issues and Analysis, June 21, 2011

International Climate Change Financing: The Green Climate Fund (GCF), June 23, 2011

Legislative Branch: FY2012 Appropriations, June 15, 2011

The Arecibo Ionospheric Observatory, June 16, 2011

According to President Obama, he has no higher duty than to protect the American people.  But that’s not what the Constitution says.

“As President, I have often said that I have no greater responsibility than protecting the American people,” wrote President Obama in the new “National Strategy for Counterterrorism” (pdf) that was released by the White House yesterday.  A similar sentiment appears in the Introduction to the new Strategy, which states that the President “bears no greater responsibility than ensuring the safety and security of the American people.”

This seems like a fateful misunderstanding.  As chief executive and commander in chief of the armed forces, the President obviously has responsibility for national security.  But to claim that he has no greater responsibility than “protecting the American people” is a paternalistic invention that is historically unfounded and potentially damaging to the political heritage of the nation.

The presidential oath of office that is prescribed by the U.S. Constitution (Art. II, sect. 1) makes it clear that the President’s supreme responsibility is to “…preserve, protect, and defend the Constitution of the United States.”  There is no mention of public safety.  It is the constitutional order that the President is sworn to protect, even if doing so entails risks to the safety and security of the American people.

The new Strategy document attempts to foreclose the possibility of any conflict between constitutional values and public security by asserting that the two always coincide.  “We are committed to upholding our most cherished values as a nation not just because doing so is right but also because doing so enhances our security.”  It just so happens, the document says, that constitutional values are instrumentally useful in advancing security.  “Adherence to those core values — respecting human rights, fostering good governance, respecting privacy and civil liberties, committing to security and transparency, and upholding the rule of law — enables us to build broad international coalitions to act against the common threat posed by our adversaries while further delegitimizing, isolating, and weakening their efforts.” (p.4).

But the idea that adherence to constitutional values always enhances security is wishful thinking.  The Constitution imposes burdensome limits on government authority and guarantees various rights in order to advance individual freedom, not collective security.  As a result, the interests of security and constitutional freedom are often in conflict, and it is necessary to give priority to one or the other.  One has to choose.

A federal court said that a former CIA clandestine services officer had breached his secrecy agreement by publishing a critical account of the CIA without obtaining prior Agency authorization.

Judge Gerald Bruce Lee of the Eastern District of Virginia ruled at a June 15 hearing (pdf) that the CIA officer, who goes by the pseudonym “Ishmael Jones,” would be held liable for publishing his 2008 book “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” in the face of a refusal by the CIA’s Prepublication Review Board to clear the volume for publication.

“It is uncontroverted in this case that Mr. Jones signed a secrecy agreement that required him to submit his manuscript for prepublication review and that required him not to publish it unless and until he received the Agency’s written approval,” Justice Department attorney Marcia Berman told the court on June 15.  “It is also uncontroverted that Mr. Jones submitted a manuscript to the prepublication review process and that the Agency denied him permission to publish the manuscript.”

But defense attorney Laurin Mills countered that the CIA breached the agreement first by failing to complete the review of Mr. Jones’ manuscript in a timely fashion and then issuing a “bad faith denial.”  “I think after 18 months of going through the [prepublication review] process, with them denying him the right to publish anything but footnotes,… and going six months through an appeal process where the Government’s own regulations say they’re supposed to complete it in a month, he exercised his rights under the First Amendment to publish this.”

“I don’t think that this is really a very difficult question,” said Judge Lee in ruling for the CIA and against Mr. Jones.  “I think the Snepp case would control here,” he said, referring to the case of former CIA officer Frank Snepp, whose 1977 Vietnam War memoir “Decent Interval” was published over CIA objections.  The CIA won a U.S. Supreme Court ruling against Mr. Snepp and was awarded the royalties from his book.

“It seems to me that where [Ishmael Jones] signed a binding secrecy agreement that prevented him from publishing any materials prior to receiving written consent, that under Snepp liability… has been established.  His signing a secrecy agreement does not violate his First Amendment rights,” Judge Lee said.

If Mr. Jones believed CIA was wrongly blocking publication of his book, the Judge said, “he had a remedy and that remedy was to come to U.S. District Court and to pursue a claim to have the Court determine if the Agency’s withholding of permission was unreasonable.”

“[Jones’ decision] to go forward without pursuing his remedies before the court was the breach.  It was not the Government’s breach.  The Government was carrying out its agreement.”

“What remains to be [decided] is the issue of what remedy the Government is entitled to because of the breach of secrecy agreement,” Judge Lee said.

A copy of the June 15 hearing transcript was obtained by Secrecy News.  The court ruling was first reported by Josh Gerstein in Politico on June 28.  Frank Snepp presented a gripping account of his legal battle with CIA in the 1999 book “Irreparable Harm.”

Congress has directed the Congressional Research Service not to make its reports directly available to the public. This policy does not make any practical sense and does not command respect inside or outside of government, but it has proven easier to work around the policy than to change it. Here are some new CRS reports obtained by Secrecy News (all pdf).

Brief History of the Gold Standard in the United States, June 23, 2011

Military Construction: Analysis of the FY2012 Appropriation and Authorization, June 22, 2011

Warrantless, Police-Triggered Exigent Searches: Kentucky v. King in the Supreme Court, June 17, 2011

The Smart Grid and Cybersecurity — Regulatory Policy and Issues, June 15, 2011

DNA Databanking: Selected Fourth Amendment Issues and Analysis, June 6, 2011