President Obama last week formally initiated a review of national security classification policy, directing the National Security Adviser to prepare recommendations for revising the current executive order on classification.

“My Administration is committed to operating with an unprecedented level of openness,” the President wrote on May 27. “While the Government must be able to prevent the public disclosure of information where such disclosure would compromise the privacy of American citizens, national security, or other legitimate interests, a democratic government accountable to the people must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment.”

The President’s memo specifically identifies “overclassification” as a “problem” and invites recommendations for “greater openness and transparency.” However, both the memo’s diagnosis and its own suggested remedies are quite superficial.

For example, the memo does not address the need to revise and update the criteria for classification.  And it does not require an inquiry into the role of “need to know” restrictions, if any, in a networked information environment.

The memo proposes a National Declassification Center to facilitate collaborative declassification review.  This is a welcome idea that would eliminate costly, time-consuming sequential reviews of records for declassification.  But without changes to classification criteria, the Center would continue to produce the same results as before, only more quickly.  Thus, if the CIA thinks that fifty year old intelligence budget figures should remain classified, which it does, the mere existence of a Declassification Center would do nothing to correct such an error in judgment.

The memo also suggests restoring a presumption against classification “where there is significant doubt about the need for such classification.”  This sounds fine, but because doubt (or even “significant doubt”) is an unverifiable mental state, it cannot serve as a basis for classification policy.  When a similar presumption was included in past executive orders, it had no identifiable effect on agency classification practices.  (The only possible role for such a provision is if the “doubter” is a different person than the “classifier.”  In other words, if an independent auditor or overseer “doubted” the need for certain information to be classified, he or she might usefully be authorized to cancel its classification. But that would be a new policy measure, not a restored one.)

A response to the President’s memorandum is due within 90 days.  In the same May 27 memorandum, the President also called for a review of restrictions on so-called “controlled unclassified information.”

In April 1993, President Clinton issued his own directive to undertake reforms of classification policy.  Many of the questions posed in that directive are persistent and remain unresolved today, including:  What types of information continue to require protection through classification in the interest of our national security? And, What steps can be taken to avoid excessive classification?  See Presidential Review Directive 29, April 26, 1993.

In a paper that should be published later this month in the Yale Law and Policy Review, I attempted to identify the conditions for successful reform of government secrecy policy.

Following sharp increases in the first several years after 9/11, the total estimated costs of implementing the national security classification system seem to have leveled off at around $10 billion annually, according to a new report to the President (pdf) from the Information Security Oversight Office.  The total cost of protecting classified information in government and industry last year was $9.85 billion, down slightly from $9.9 billion the year before, ISOO director William J. Bosanko reported.

The May 19 ISOO report also provided a striking reminder of the tide of secrecy that has silently and inexorably concealed previously public information in recent years.

When classification cost data were first reported in April 1994 (at the initiative of then-Rep. David Skaggs of Colorado), the CIA made the surprising claim that its classification costs were classified.  This was understood by outside observers such as Sen. Daniel P. Moynihan as a familiar expression of CIA’s excess of zeal.  No one seriously believed that it was a legitimate national security issue, particularly because the cost data involved were rough estimates, not actual expenditures.  As if to confirm that assessment, the classification costs incurred by all other intelligence agencies were incorporated as a matter of course in the ISOO cost reports each year through 2005 (pdf).

But since 2006, the CIA’s silly secrecy has become prevalent in the intelligence community and other agencies have adopted the claim that their estimated classification costs are national security secrets too.  In the latest ISOO report to the President, Mr. Bosanko noted that the cost estimates for CIA, DIA, ODNI, NGA, NRO, and NSA were all classified “in accordance with Intelligence Community classification guidance.”

“Understanding the financial costs associated with keeping information secret is essential to any effort to begin scaling back the scope of secrecy and making protection more efficient,” according to the 1997 Report of the Moynihan Commission (Chapter 1, page 9).  Such an effort is naturally frustrated when classification itself is used to conceal those costs.

The tiny Muslim community of Bolivia was surveyed in a recent report from the DNI Open Source Center.  The OSC report “is an overview of mosques, Islamic organizations, and religious leaders in Bolivia and their susceptibility to foreign Islamist influence.”

Like many OSC products, this item has not been approved for public release.  A copy was obtained by Secrecy News.  See “Bolivia — Key Muslim Converts Assert Local Peril, Ally With Zealots Abroad,” Open Source Center, May 12, 2009.

The organization, role and operation of the Office of Legal Counsel (OLC), which produces binding interpretations of the law for the executive branch, are usefully described in the Justice Department’s FY 2010 budget request (pdf).

“OLC’s mission remains highly critical and urgent as the Department enters into a new era of responsibility confronting national security and intelligence challenges, reinvigorating federal civil rights enforcement, and advising the myriad of agencies involved in responding to the economic crisis,” the budget request document states.  “The Office is operating at a particularly challenging time, when a number of major legal positions of the United States government are under review or in the process of being changed.”

Under the Bush Administration, the OLC notoriously issued numerous opinions — many of which would later be withdrawn under criticism — authorizing abusive interrogation, warrantless surveillance, and other departures from established legal norms.  The President’s distinguished nominee to head the Office, Prof. Dawn Johnsen, still awaits Senate confirmation and she reportedly faces opposition from some Senate Republicans.

A compilation of hundreds of U.S. nuclear sites and activities that were to be declared to the International Atomic Energy Agency by the United States was transmitted to Congress last month by President Obama.

“The enclosed draft declaration lists each site, location, facility, and activity I intend to declare to the IAEA, and provides a detailed description of such sites, locations, facilities, and activities, and the provisions of the U.S.-IAEA Additional Protocol under which they would be declared,” the President wrote. “Each site, location, facility, and activity would be declared in order to meet the obligations of the United States of America with respect to these provisions.”

“The IAEA classification of the enclosed declaration is ‘Highly Confidential Safeguards Sensitive’,” the President noted in his May 5, 2009 transmittal letter, “however, the United States regards this information as ‘Sensitive but Unclassified’.”

But sensitive or not, the draft declaration was promptly published by the Government Printing Office.  See “The List of Sites, Locations, Facilities, and Activities Declared to the International Atomic Energy Agency,” message from the President of the United States, May 6, 2009 (267 pages, 13 MB PDF file).

“We are launching a review of current policies by all of those agencies responsible for the classification of documents to determine where reforms are possible,” announced President Obama in a speech at the National Archives today.

While the President has spoken broadly before of the need for greater transparency, this is the new Administration’s first public approach to reform of the national security classification system.  A focused review of individual agency classification policies, many of which have not been revised or updated for years, has the potential to eliminate obsolete classification requirements, and to minimize overclassification.  (See “Overcoming Overclassification,” Secrecy News, September 16, 2008.)

“I ran for President promising transparency, and I meant what I said,” Obama said. “That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book.”

“I will never abandon – and I will vigorously defend – the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts.”

The President also indicated that an ongoing review of the use of the state secrets privilege was “nearing completion.”

“On all of these matters related to the disclosure of sensitive information, I wish I could say that there is a simple formula. But there is not. These are tough calls involving competing concerns, and they require a surgical approach.”

“But the common thread that runs through all of my decisions is simple: we will safeguard what we must to protect the American people, but we will also ensure the accountability and oversight that is the hallmark of our constitutional system. I will never hide the truth because it is uncomfortable. I will deal with Congress and the courts as co-equal branches of government. I will tell the American people what I know and don’t know, and when I release something publicly or keep something secret, I will tell you why,” he said.

The White House today solicited public recommendations for greater openness in government.

“Members of the public are invited to participate in the process of developing recommendations [by] offering comments, ideas, and proposals about possible initiatives and about how to increase openness and transparency in government,” according to a notice published in the Federal Register today.

“Comments may address law, policy, technology, culture, and practice on issues such as: What government information should be more readily available on-line or more easily searched? How might the operations of government be made more transparent and accountable?… What alternative models exist to improve the quality of decisionmaking and increase opportunities for citizen participation?  What are the limitations to transparency?”  Comments are due by June 19.

This request for public comments itself already represents an advance over past practice, because it is based on an official consensus in favor of increasing openness.  “Transparency promotes accountability and provides information for citizens about what their Government is doing,” President Obama stated on January 21.  “Public engagement enhances the Government’s effectiveness and improves the quality of its decisions,” he said.

These principles, having been affirmed by the President, no longer need to be debated.  Instead, the question is how to realize them in practice.

Today’s Federal Register notice was signed by John P. Holdren, the White House science adviser.  Holdren was formerly a chairman of the Federation of American Scientists and was also, years ago, a professor of mine at UC Berkeley.

Noteworthy new congressional hearing records on intelligence, national security or secrecy that have been published in the last month or two include the following.

“Congressional Oversight of Intelligence Activities,” hearing before the Senate Intelligence Committee, November 13, 2007.

“Implementation of the Office of Government Information Services,” hearing before the House Committee on Oversight and Government Reform, September 17, 2008.

“FISA for the 21st Century” (pdf), hearing before the Senate Judiciary Committee, July 26, 2006 (includes over a hundred questions and answers for the record from OLC head Steven G. Bradbury [pdf], among others).

“Sunshine in the Courtroom Act of 2007” (pdf), hearing before the House Judiciary Committee, September 27, 2007.

“From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part III)” (pdf), hearing before the House Judiciary Committee, June 26, 2008 (including testimony by David S. Addington and John Yoo).

“From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules (Part IV),” hearing before the House Judiciary Committee, July 15, 2008 (including testimony by Douglas Feith).

The Open Source Center of the U.S. Intelligence Community has prepared a descriptive catalog of websites (pdf) concerning the defense and security of Chile.

“The Chilean defense establishment consists of military and civilian institutions, many of which have their own websites featuring institutional services, news, and academic reports,” the OSC report explains. “Many academic contributions on defense issues are featured on these sites. Defense blogs and some related websites also carry unofficial information on Chilean military issues. A few sensitive defense institutions, including intelligence services and related industries, do not have their own websites. An appendix [to the report] explains the Chilean defense structure.”

Like many other OSC products, the unclassified, 12-page report has not been approved for public release.  But a copy was obtained by Secrecy News.  See “Guide to Selected Chilean Defense Websites,” Open Source Center Media Aid, 29 April 2009.

The Chief Justice of the U.S. Supreme Court has appointed two new judges to the eleven-member Foreign Intelligence Surveillance Court, a spokesman for the Court said today.

Judge Thomas F. Hogan of the D.C. District Court and Judge Susan Webber Wright of the Eastern District of Arkansas were each appointed to seven-year terms on the Court, expiring May 18, 2016, said spokesman Sheldon Snook.

They replace Judge Robert C. Broomfield and Judge Colleen Kollar-Kotelly, whose terms on the FIS Court expired today.  Judge John D. Bates, who was appointed to the Court in 2006, takes over from Judge Kollar-Kotelly as Presiding Judge of the Court.

The FIS Court reviews government applications for electronic surveillance and physical search of suspected foreign intelligence and terrorist targets under the Foreign Intelligence Surveillance Act of 1978. The current membership of the Foreign Intelligence Surveillance Court may be found here.

During calendar year 2008, the Foreign Intelligence Surveillance Court approved 2,083 applications for authority to conduct electronic surveillance and physical search of suspected foreign intelligence and terrorist targets under the Foreign Intelligence Surveillance Act, according to a new annual report to Congress (pdf) from the Justice Department.  The Court made substantive modifications to two applications and denied one application.

This is a decrease from calendar year 2007 (pdf), when the Court approved 2,370 applications for electronic surveillance and physical search, modified 86 applications, and denied three (and one “in part”).

The new report, transmitted May 14, 2009, also states that in 2008 the FBI made 24,744 “national security letter” (NSL) requests for information concerning 7,225 different United States persons.  In 2007, according to newly revised figures included in the report, the FBI made 16,804 NSL requests pertaining to 4,327 different United States persons.  National security letters are obligatory demands for information or records, comparable to subpoenas but without judicial oversight.  The scope of such instruments was expanded by a provision of the USA Patriot Act.

The Congressional Research Service discussed “Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009” in a report that was updated March 16, 2009.

The late Kenneth C. Bass, who helped draft the Foreign Intelligence Surveillance Act of 1978 and who was the first Counsel for Intelligence Policy at the Justice Department, later became a critic of its implementation and a proponent of remedial measures.

In a 1994 congressional hearing, he urged lawmakers to introduce elements of an adversarial process into the FISA Court, such as appointing an advocate for the proposed target, so that judges would have a more complete and nuanced record on which to base their decisions to approve surveillance and physical search.  See “Amending the Foreign Intelligence Surveillance Act” (pdf), hearing before the House Permanent Select Committee on Intelligence, July 14, 1994.

In 2002 testimony, he reiterated this proposal and told a Senate Judiciary Committee hearing on the FISA process that it should also “obtain more information and make it public.”  Neither recommendation was acted upon, and the efficacy of the FISA as a legal constraint upon intelligence surveillance would soon be diminished by the Bush Administration’s circumvention of its procedural requirements.

Kenneth Bass was remembered in “Justice Official Helped Pen Surveillance Act” by Patricia Sullivan, Washington Post, May 2, 2009.

“Laws never prevent lawlessness,” Mr. Bass said at the 1994 hearing.  “But they are designed to check it and give somebody else a second view of what to do with it.”

Kate Martin of the Center for National Security Studies, who also testified at that hearing, told Committee members that Mr. Bass’ proposal for an adversarial review of FISA applications was unobjectionable but that by itself it would not cure the constitutional infirmities of FISA.

“The Constitution is not a perfect information-gathering system for the government,” Ms. Martin said.