An unclassified U.S. Army history of military intelligence that was formerly used as a textbook in officer training at the Army Intelligence Center at Fort Huachuca is now publicly available online (large pdf).

The 1973 volume has been superseded in many or even most respects by subsequent research and publication. But it retains some interest as a snapshot of the contemporary self-understanding and presentation of military intelligence. “It remains one of the best overviews of the history of Army Intelligence, although it is dated,” one admirer of the document told Secrecy News.

According to the Preface, “This history concentrates on intelligence support to tactical forces since, in truth, this is where military intelligence, per se, receives its greatest visibility and its greatest importance.”

See “The Evolution of American Military Intelligence” by Marc B. Powe and Edward Wilson, U.S. Army Intelligence Center and School, Fort Huachuca, AZ, May 1973.

A $60 billion arms sale to Saudi Arabia — the largest in U.S. history — is poised to proceed despite questions raised by some members of Congress. In a November 16 letter to Congress (pdf), Secretary of Defense Robert Gates and Secretary of State Hillary Clinton defended the deal:

“This proposed sale will directly support U.S. interests by reinforcing our longstanding defense and security partnership with Saudi Arabia, enhancing Saudi Arabia’s ability to deter and defend itself against terrorist groups and other regional threats, improving interoperability with the U.S. military, and sending a strong message to all countries that the United States is committed to supporting the security of its key partners and allies in the Gulf and broader Middle East,” they wrote.

Members of Congress had written to the Administration on November 12 (pdf) “to raise concerns and pose a number of strategic questions about the impact such sales would have on the national security interests of the United States and our allies.” The Gates-Clinton letter was written in response.

The Supreme Court will decide next year whether corporations are entitled to “personal privacy” and whether they may prevent the release of records under the Freedom of Information Act on that basis.  FOIA advocates say that assigning personal privacy rights to corporations could deal a crippling blow to the Act.

The case before the Court — known as FCC v. AT&T — arose from a FOIA request to the Federal Communications Commission for records of an investigation of a government contract held by AT&T.  The FCC found that the requested records were subject to release under FOIA.  But AT&T challenged that decision and won an appeals court ruling that the documents were law enforcement records that were exempt from disclosure because their release would constitute “an unwarranted invasion of personal privacy” — namely, the “personal privacy” of AT&T.

The appeals court noted that the word “person” is defined in the Administrative Procedures Act (APA) to include corporations, and it went on to infer from this that the FOIA exemption for “personal privacy” in law enforcement records must logically extend to corporations as well.

But “that analysis does not withstand scrutiny,” the government argued in its petition (pdf) to the Supreme Court for review of the case.  Personal privacy can only apply to individual human beings, it said, and not to other entities.  “The court of appeals’ novel construction would erroneously create a new and amorphous ‘privacy’ right not only for corporations but also for local, state, and foreign governments [which also fall under the APA definition of ‘person’].”

A concise description of the pending case as well as key case files and amicus briefs filed with the Supreme Court by several FOIA advocacy organizations are conveniently available from the Electronic Privacy Information Center.  (EPIC prepared one of the amicus briefs and I was among the signatories to it.)

Corporate information that qualifies as a “trade secret” has long been exempt from disclosure under the FOIA.  But prior to this case, no court had ever held that a corporation also has personal privacy rights.

If affirmed by the Supreme Court, the appeals court ruling “could vastly expand the rights of corporations to shield their activities from public view,” said Sen. Patrick Leahy this week, and it “would close a vital window into how our government works.”

“Congress never intended for this [personal privacy] exemption to apply to corporations,” he said.  “I also fear that extending this exemption to corporations would permit corporations to shield from public view critical information about public health and safety, environmental dangers, and financial misconduct, among other things — to the great detriment of the people’s right to know and to our democracy.”

“I sincerely hope that our nation’s highest Court… will narrowly construe the personal privacy exemption, consistent with congressional intent,” said Sen. Leahy. “Should the Court decide to do otherwise, I will work with others in the Congress to ensure that FOIA, and specifically the personal privacy exemption for law enforcement records, remains a meaningful safeguard for the American people’s right to know,” he said.

FCC v. AT&T is scheduled to be argued before the U.S. Supreme Court on January 19, 2011.

Director of National Intelligence James R. Clapper went a little out of his way to praise the Government Accountability Office at a Senate hearing on security clearance reform on November 16. “I’d be remiss if I didn’t recognize the crucial role that GAO continues to play in keeping the heat on the executive branch for security clearance reform and, also, on areas they have identified where more work is required,” DNI Clapper told a subcommittee hearing chaired by Senator Daniel Akaka.

As required by the FY2010 intelligence authorization act, the DNI is preparing a directive to authorize and regulate GAO access to intelligence information, a step that should portend an increased role for GAO in intelligence oversight. In the future, GAO access to intelligence “will be similar to the GAO’s access to the Department of Defense’s Special Access Programs,” suggested Sen. Rockefeller.

In pursuing a new cybersecurity agenda, “the government must be as transparent as possible with the American people,” said Sen. Sheldon Whitehouse yesterday. “I doubt very much that the Obama administration would abuse new authorities in cyberspace to violate Americans’ civil liberties. But on principle, I firmly and strongly believe that maximum transparency to the public and rigorous congressional oversight are essential. We have to go about this right.”

Retiring Senate Intelligence Committee Vice Chairman Christopher Bond offered his valedictory thoughts on intelligence policy on the Senate floor yesterday, launching darts in multiple directions.  Among other recommendations, he called for an increased number of prosecutions to combat leaks.

“We must first deter and neutralize the leakers. There should be significant criminal, civil, and administrative sanctions that can be imposed on leakers. Leakers should face significant jail time, pay heavy fines, forfeit any profits, lose their pensions, and be fired from their jobs. We should also not allow the first amendment to be used as a shield for criminal activity. It should be a crime to knowingly solicit a person to reveal classified information for an unauthorized purpose or to knowingly publish or possess such information. Leaks will not stop until a significant number of leakers have been appropriately punished,” Sen. Bond said.

Technically, any alert reader of national newspapers “possesses” classified information and would therefore be criminally liable under Senator Bond’s rash formulation.

Investment banker Maurice Sonnenberg was appointed this week to the National Commission for the Review of the Research and Development Programs of the U.S. Intelligence Community.  The most surprising thing about the appointment was its predictability.

If national commissions on intelligence were a TV game show, Maurice Sonnenberg would be Kitty Carlisle or Orson Bean.  In other words, he is a perennial member of a seemingly endless series of blue-ribbon panels, task forces and commissions.

He was senior adviser to the 1996 Commission on the Roles and Capabilities of the U.S. Intelligence Community (the Aspin-Brown Commission), a member of the 1997 Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission), the Vice Chairman of the 2000 National Commission on Terrorism (the Bremer Commission), and an original member of the 2003 National Commission for the Review of the Research and Development Programs of the U.S. Intelligence Community, which lapsed in 2004. The latter Commission has recently been revived, and Mr. Sonnenberg’s reappointment to it is what was announced this week.  He also previously served on the President’s Foreign Intelligence Advisory Board during the Clinton Administration.

Mr. Sonnenberg accepts his role with grace.  “I’m quite content that people ask me for my views,” he told the New York Sun in 2005. “But does that elevate me to the pantheon of great thinkers? I doubt it. My hat size hasn’t changed. If I take a bus, it still costs me $2 a ride.”

“It’s sometimes helpful to talk to people who’re at the levers of power,” he admitted. “Perhaps that way one has enjoyed some influence on policy.”

The new National Commission was restored by Congress to perform a “review of the full range of current research and development programs within the responsibility of the Intelligence Community with the goal of ensuring a unified research and development program across the entire Community.”

“Litigation Under the Federal Open Government Laws 2010” is the latest edition of a classic handbook for Freedom of Information Act litigants.  It provides an updated summary of the relevant case law and a discussion of many of the most commonly encountered issues and obstacles a FOIA litigator may face.  Any FOIA requester or attorney who is contemplating a FOIA lawsuit will want to study it closely. The new edition was edited by Harry A. Hammitt, Ginger McCall, Marc Rotenberg, John A. Verdi, and Mark S. Zaid.

“These Guys: Cold War Stories told by Cold War Warriors” is an anthology of personal reminiscences from former members of the U.S. Air Force Security Service concerning their experiences in U.S. military and intelligence service.  It was edited by Trish Schiesser.

“The Dangers of Dissent” by Ivan Greenberg explores the modern history of FBI domestic surveillance, bolstered by records obtained by the author through FOIA litigation. The book “traces the evolution of FBI spying from 1965 to the present through the eyes of those under investigation.”

The use of access control markings such as the Transportation Security Agency’s “Sensitive Security Information” (SSI) to limit disclosure of unclassified records has been criticized from time to time as arbitrary and self-serving.  But now, due to a subtle change in the recent executive order on “Controlled Unclassified Information,” SSI and other such markings should receive new oversight and scrutiny.

In a preliminary draft (pdf) of the new executive order 13556 on Controlled Unclassified Information (at section 1.3b), four existing control markings were “grandfathered” into the new CUI system — Sensitive Security Information, Critical Infrastructure Information, Chemical Vulnerability Information, and Safeguards Information.  This means that they were presumptively approved for future use without any further review.

But in the final draft of the executive order approved by the President on November 4, that provision and those presumptive approvals were withdrawn.  Consequently, SSI and the other control markings will have to go through the same external review and approval process as other controls on unclassified information in order to qualify as CUI.

SSI and several other unclassified control categories are authorized in statute, so they cannot be categorically eliminated or disapproved by the CUI Executive Agent.  But what the CUI review process can do is to help ensure that what agencies claim is SSI really does fall into that category.

This became a live issue recently when the Transportation Security Administration moved to seal a lawsuit brought by a former TSA air marshal by claiming that the names of officials who disciplined and removed the air marshal are themselves SSI.  To outside observers, this appeared to be an abuse of the SSI control marking to gain tactical advantage in the lawsuit.  See “Why Is the TSA Keeping Air Marshal Employment Disputes Under a Veil of Secrecy?” by Nick Schwellenbach, Project on Government Oversight (POGO), November 2, 2010.

Eliminating the a priori approval of SSI markings from the CUI system should mean more scrupulous use of such markings, according to a government official involved in drafting the new executive order. “Treating them as any other allows oversight…to at least try to avoid the sort of alleged absurd decisions highlighted by POGO,” the official said.

In a revealing failure of Administration commitments to transparency, an official history of the U.S. government’s post-war pursuit of (or sometimes accommodation with) Nazi war criminals was obtained by the New York Times after the Department of Justice refused to release an unexpurgated version under the Freedom of Information Act.

The secret history was reported in “Nazis Were Given ‘Safe Haven’ in U.S., Report Says” by Eric Lichtblau in the New York Times, November 14.  The Times also posted the complete text of the document online.

A side-by-side review of the leaked and the redacted versions compels the conclusion that the Department of Justice exceeded its authority to withhold information from the public, and violated the disclosure requirements of the Freedom of Information Act. “Now that we can compare the redacted document with the complete text of the original report, it is clear that the Justice Department is withholding information without legal justification,” said attorney David Sobel, who represented the National Security Archive in its request for the document. “For an administration — and an Attorney General — supposedly committed to an ‘unprecedented’ level of transparency, this case provides a troubling example of how far the reality is from the rhetoric.”

But in a paradigmatic example of “a good leak” that advances the public interest, the unauthorized disclosure of the document succeeded where normal disclosure procedures failed.

The rationale for the New START Treaty between the United States and Russia on reductions in nuclear weapons was addressed at length in an October 1 report from the Senate Foreign Relations Committee.  On September 16, the Committee recommended ratification of the Treaty, which awaits consideration by the full Senate.

The 141-page Committee report (large pdf) explained the terms of the Treaty, its verification, its implications for missile defense and prompt global strike, and related subjects of concern or controversy, with dissenting views from opponents.  See “Treaty with Russia on Measures for Further Reduction and Limitation of Strategic Offensive Arms (The New START Treaty),” Senate Foreign Relations Committee (SFRC) executive report 111-6, October 1.

The Senate Committee action was welcomed by many Russian officials as a harbinger of possible Treaty ratification by the end of this year. But other senior Russian officials criticized the Committee’s handling of the Treaty, as noted in a recently updated report (pdf) from the Congressional Research Service:

“On November 3, 2010,… State Duma International Affairs Committee Chairman Kosachev stated that his committee would reopen hearings to discuss the ramifications of the action by the SFRC. He alleged that many of the conditions, understandings, and declarations in the resolution of advice and consent to ratification proposed by the SFRC are ‘deeply worrisome’ to many Russian Duma members, and stated that not only the synchronization of the ratification was necessary, but also the formulation of Russian statements to address those raised by the SFRC. He also raised concerns that a shift in party control in the U.S. Congress could delay or derail U.S. Congressional action on the treaty.”

See “Russian Political, Economic, and Security Issues and U.S. Interests,” Congressional Research Service, November 4, 2010.

“Prompt global strike” refers to the possibility of destroying a target anywhere on Earth within minutes or hours using bombers, cruise missiles or ballistic missiles armed with conventional warheads. The prompt global strike mission and its various implications were examined in a new report (pdf) from the Congressional Research Service.

Some argue that a conventional global strike capability could permit reduced U.S. reliance on nuclear weapons without diminishing deterrence.  Others say that it would be destabilizing, especially since conventionally-armed ballistic missiles in flight would be indistinguishable from nuclear-armed ballistic missiles, and could therefore be easily misinterpreted as a nuclear strike.

Under the terms of the New START Treaty between Russia and the U.S., which is awaiting Senate consideration, conventionally-armed ballistic missiles would be permitted, despite initial opposition from Russia during negotiations.  However, such missiles would still be counted along with nuclear-armed missiles under the Treaty’s limits on deployed delivery systems. All of these issues and more were carefully sorted out by CRS analyst Amy F. Woolf in “Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues,” October 25, 2010.

The Congressional Research Service does not permit direct public access to its publications.

The Strategic Arms Limitation Talks between the U.S. and the Soviet Union that led to the signing of the SALT I Treaty in 1972 were documented in exhaustive detail in the latest volume of the official State Department publication Foreign Relations of the United States (FRUS).

The new FRUS volume (pdf), which is more than 1000 pages long, covers internal deliberations over U.S. arms control policy and strategy in the Nixon Administration, and the development, refinement, negotiation and ultimate approval of the SALT I Treaty.

“You cannot put large missiles into small holes,” said Soviet leader Leonid Brezhnev “very irritably,” according to the transcript of a May 23, 1972 discussion on possible modification of existing missile silos.  “It is more complicated than that,” responded national security advisor Henry Kissinger.

Declassification review of this FRUS volume began in 2004 and was completed in 2010. It resulted in the withholding of 1 document in full, excisions of a paragraph or more in 9 documents, and excisions of less than a paragraph in 60 documents, as noted in the Preface.

“More and more prosecutions” under the Foreign Corrupt Practices Act may be expected, said Assistant Attorney General Lanny A. Breuer last month. The Foreign Corrupt Practices Act is intended to prevent and punish bribery of foreign officials by U.S. firms.  “The executive branch appears to have increased oversight of suspected American businesses for alleged violations,” according to a new report from the Congressional Research Service, noting that “there have been a number of settlements and indictments in 2010” involving violations of the Act. See “Foreign Corrupt Practices Act (FCPA): Congressional Interest and Executive Enforcement” (pdf), October 21, 2010.

Another new CRS report uncovers the history of the mostly forgotten Joint Congressional Committee on Reduction of Non-Essential Expenditures, which was in existence from 1941-1974.  Its purpose was to generate recommendations for the elimination of non-essential federal spending.  Interest in the Committee has been revived because of the possibility that it could serve as a model for restraining federal spending today.  But that possibility seems faint, since there is no evidence that the Committee had any tangible effect.  “CRS research did not uncover instances [of spending cuts] that could be specifically attributed to a recommendation of the joint committee or documentation that attributed a specific cut in spending to a joint committee recommendation.”  See “History of the Joint Committee on Reduction of Non-Essential Federal Expenditures (1941-1974), with Observations on Oversight Today” (pdf), October 26, 2010.

CRS updated its recent report on “Criminal Prohibitions on the Publication of Classified Defense Information” (pdf) on October 18, 2010 to correct some minor factual errors and to make various editorial changes.

Copies of these reports were obtained by Secrecy News.