The political leadership of Cuba, which has undergone significant turnover in the past year, was profiled in a new publication this month by the DNI Open Source Center (OSC).

“Raul Castro has overhauled the leadership of top government bodies, especially those dealing with the economy, since he formally succeeded his brother Fidel as president of the Councils of State and Ministers on 24 February 2008,” the OSC observed. “Since then, almost all of the Council of Ministers vice presidents have been replaced, and more than half of all current ministers have been appointed.”

See “Cuban Leadership Overview” (pdf), Open Source Center, April 16, 2009.  A handsome poster featuring photographs of dozens of senior Cuban officials was also compiled by the Open Source Center.  See “Cuban Leadership Chart” (pdf), April 16, 2009.

Like most Open Source Center products, these items have not been approved for public release.  Copies were obtained by Secrecy News.

Senator Arlen Specter (R-PA) last week reintroduced three bills that he said were needed to limit presidential power and to restore the proper constitutional balance among the three branches of government.

The first bill (S.875) would instruct courts not to rely on a presidential signing statement when interpreting the meaning of any statute. (Similar legislation was introduced in previous sessions of Congress, but was not passed.)

President Bush used signing statements “in a way that threatened to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced,” said Sen. Specter on April 23. “As outrageous as these signing statements are,… it is even more outrageous that Congress has done nothing to protect its constitutional powers,” he said.

The second bill (S.876) would substitute the United States as the defendant in place of telecommunications companies in pending lawsuits alleging unlawful surveillance. (Sen. Specter also introduced such a bill in 2008.)

“It is not too late to provide for judicial review of controversial post-9/11 intelligence surveillance activities,” Sen. Specter said. “The cases before Judge Vaughn Walker [alleging unlawful surveillance] are still pending and, even if he were to dismiss them under the statutory defenses dubbed ‘retroactive immunity’, Congress can and should permit the cases to be refiled against the Government, standing in the shoes of the carriers.”

“The legislation also establishes a limited waiver of sovereign immunity… to prevent the Government from asserting immunity in the event it is substituted for the current defendants,” Sen. Specter explained. (As for the likelihood that the Government would assert the “state secrets privilege” to abort such litigation, that is addressed in another pending bill.)

The third bill (S.877), which is new, would require the Supreme Court to review certain cases concerning the constitutionality of intelligence surveillance, statutory immunity for telecommunications providers, and other communications intelligence activities, and would eliminate the Court’s discretion as to whether or not to grant “certiorari.” The bill was necessitated, he said, by the Supreme Court’s refusal to review an appeals court decision that overturned a 2006 ruling by Judge Anna Diggs Taylor which found the Terrorist Surveillance Program to be unconstitutional.

Sen. Specter discussed his approach to these matters in “The Need to Roll Back Presidential Power Grabs,” New York Review of Books, May 14, 2009.

While official secrecy is a serious impediment to democratic vitality, the continuing decline of news gathering, reporting and editorial capacity could be a potential catastrophe.  It is still unclear whether new and nascent forms of information sharing can provide a satisfactory substitute.

The Knight Commission on the Information Needs of Communities in a Democracy is soliciting public input on a series of questions about information access and use, revolving around the most basic question:  “Do you have the information you need to accomplish your personal goals and to be an effective citizen?”  To participate in the survey, go here.

At the direction of Congress, the Congressional Research Service does not make its products directly available to the public.  Recent CRS reports obtained by Secrecy News include the following (all pdf).

“Legal Analysis of Religious Exemptions for Photo Identification Requirements,” April 13, 2009.

“Federal Advisory Committees: An Overview,” April 16, 2009.

“Piracy Off the Horn of Africa,” April 21, 2009.

“FY2009 Spring Supplemental Appropriations for Overseas Contingency Operations,” April 17, 2009.

“Organized Crime in the United States: Trends and Issues for Congress,” April 16, 2009.

“Disconnected Youth: A Look at 16- to 24-Year Olds Who Are Not Working or In School,” April 22, 2009.

Following an August 28, 2008 explosion at the Bayer CropScience facility in Institute, West Virginia, Bayer used official secrecy restrictions to limit public awareness of the accident and to impede investigators from the U.S. Chemical Safety Board, a congressional review found.

“Bayer engaged in a campaign of secrecy by withholding critical information from local, county, and state emergency responders; by restricting the use of information provided to federal investigators; by undermining news outlets and citizen groups concerned about the dangers posed by Bayer’s activities; and by providing inaccurate and misleading information to the public,” according to an April 21, 2009 staff report (pdf) from the House Energy and Commerce Committee.

In testimony before Rep. Bart Stupak’s Oversight Subcommittee this week, Bayer CropScience President William B. Buckner admitted that Bayer’s secrecy practices were driven not only by “legitimate security concerns” but also by “a desire to limit negative publicity generally about the company or the Institute facility.”  “We concede that our pursuit of [secrecy protection] was motivated, in part, by a desire to prevent that public debate from occurring in the first place,” Mr. Buckner said (pdf).

While Mr. Buckner’s candor is unusual, his company’s instinctive reliance on secrecy to help shape public perception is not.  Such politically motivated secrecy is a predictable and normal response to unwanted scrutiny.  Policymakers and others who aspire to an optimal degree of transparency in government must anticipate such responses and deploy countermeasures against them.

A new opportunity to help develop such countermeasures arises in a White House policy on scientific integrity that is now under development, and which would require public disclosure of most policy-relevant scientific and technological information:

“Except for information that is properly restricted from disclosure under procedures established in accordance with statute, regulation, Executive Order, or Presidential Memorandum, each agency should make available to the public the scientific or technological findings or conclusions considered or relied on in policy decisions,” according to a March 9, 2009 statement from President Obama.

But how can the new policy ensure that only information which is “properly restricted” by statute or regulation will be withheld from disclosure?  What tools can be put in place against the inevitable political abuse of secrecy authority?  How can the new policy overcome the ordinary “desire to limit negative publicity”?

There are several mutually reinforcing ways to answer such a question. Briefly, a thorough reconsideration of the criteria for restricting information is needed, along with a reexamination of how such criteria are exercised in practice.  New oversight mechanisms and disclosure authorities are needed to promote compliance.  New appeal procedures would help to adjudicate difficult or contested cases.

“We fully acknowledge the need for further guidance on what materials should and should not be marked as SSI [sensitive security information],” Mr. Buckner told Congress this week.  In fact, further guidance and improved clarity are needed all around.

In a Federal Register notice today, the Office of Science and Technology Policy (OSTP) solicited public comment on the implementation of President Obama’s memorandum on scientific integrity.  “Comments from the public will help the OSTP determine what should be included in these recommendations. Respondents are invited to suggest: (1) Recommendations that would be responsive to the aims of the President, (2) specific implementing strategies, and (3) data and empirical evidence related to the effectiveness of strategies to promote scientific integrity,” the April 23 Federal Register notice said.  Public comments are due by May 13.

The Senate Intelligence Committee released a newly declassified account of the opinions issued by the Justice Department Office of Legal Counsel concerning CIA’s interrogation and detention program during the Bush Administration.  The document is neutral, dispassionate, and maybe a little dull, particularly when compared with the gruesomely detailed contents of some of the OLC opinions themselves, on which it does not render any moral or legal judgment.  Remarkably, release of this Senate report was blocked last year when the Bush Administration National Security Council refused to declassify it.  But now it, and much more, has been released.  See “Declassified Narrative Describing the Department of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program” (pdf), released April 22, 2009.

Another newly declassified report, from the Senate Armed Services Committee, does not shrink from drawing conclusions.  “The report represents a condemnation of both the Bush administration’s interrogation policies and of senior administration officials who attempted to shift the blame for abuse–such as that seen at Abu Ghraib, Guantanamo Bay, and Afghanistan–to low ranking soldiers. Claims, such as that made by former Deputy Secretary of Defense Paul Wolfowitz that detainee abuses could be chalked up to the unauthorized acts of a ‘few bad apples,’ were simply false,” said Sen. Carl Levin in an April 21 floor statement introducing the report (large pdf).

Does torture work?  Preempting and perhaps foreclosing an argument advanced by former Vice President Cheney and others, DNI Dennis C. Blair said in an April 21 statement that “The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security,” he said.

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By all authoritative accounts, Rep. Jane Harman (D-CA) did not interfere in the investigation of two former pro-Israel lobbyists who were suspected of unlawfully receiving and transmitting classified information.  She did not seek to win favorable treatment for them from the Justice Department.  They did not receive any such treatment.  And she did not become chair of the House Intelligence Committee.

Nevertheless, she stands accused of saying that she would get involved in the case of the pro-Israel lobbyists in exchange for outside efforts to promote her candidacy to be chair of the House Intelligence Committee.

In a widely cited story in CQ Homeland Security, Jeff Stein reported that several former government officials had told him that Rep. Harman had been captured on a National Security Agency wiretap speaking with an unidentified “suspected Israeli agent” agreeing to “waddle into” the controversial case of the two former AIPAC officials, who were charged under the Espionage Act with mishandling classified information, and to try to get the charges against them reduced.  “In exchange for Harman’s help,” Stein wrote, the suspected Israeli agent pledged to help lobby for Harman’s appointment as intelligence committee chair.

Rep. Harman denied any misconduct.  “These claims are an outrageous and recycled canard, and have no basis in fact,” Harman said in a statement to CQ. “I never engaged in any such activity. Those who are peddling these false accusations should be ashamed of themselves.”

In a follow-up story by Neil A. Lewis and Mark Mazzetti, the New York Times confirmed the existence of an NSA recording, but also added several important points.

David Szady, the former FBI counterintelligence official who zealously led the investigation of the two AIPAC suspects told the Times that Rep. Harman never interfered in his pursuit.  “In all my dealings with her, she was always professional and never tried to intervene or get in the way of any investigation,” Mr. Szady said.

(The trial of the AIPAC defendants, Steven Rosen and Keith Weissman, who are charged with multiple counts of violating the Espionage Act, is scheduled to begin on June 2.)

The Times did not independently confirm the CQ claim that former Attorney General Alberto Gonzales had quashed an investigation into Rep. Harman’s statements purportedly because he wanted her support of the Bush Administration’s warrantless surveillance program. [Update, 4/24/09: In a follow-up story published April 23, the Times did independently confirm that Gonzales intervened in the case.]

The Times reported that an official familiar with the NSA transcript said that Rep. Harman “appeared to agree” to intervene in the AIPAC case in exchange for support of her chairmanship of the House Intelligence Committee.

But by introducing some equivocation about her “apparent” agreement, the Times implied that the transcript is susceptible to other interpretations.  It also highlighted the least credible aspect of the story — the alleged quid pro quo between Harman and the “suspected Israeli agent.”

What makes the quid pro quo allegation questionable is that neither side of the reported conversation seemed to need an inducement to act as described.  Of all potential candidates for chair of the House Intelligence Committee (Harman, Hastings, Reyes), Harman’s views have probably been closest to those of pro-Israel lobbyists.  Their support of her was not in doubt.  Nor did Rep. Harman require extraordinary incentives to be concerned about the prosecution of the former AIPAC officials.  That case has drawn widespread criticism (including from Secrecy News) for its over-broad reading of the Espionage Act that would make even the receipt of classified information a crime.

Ironically, the single identifiable crime in this whole story is the unauthorized disclosure of the classified contents of an intelligence intercept to CQ, and then to the New York Times.  While there is no categorical legal prohibition against all classified leaks, several specific categories of classified information are protected by statute and their release is a felony offense.  Under 18 U.S.C. 798, one of those is the unauthorized disclosure of communications intelligence, like that gathered by NSA.

Jeff Stein provides a second-day review and update of the story here.

Update: In an April 21 letter to the Attorney General (pdf), Rep. Harman demanded the release of “all transcripts and other investigative material involving me in an unredacted form. It is my intention to make this material available to the public.”

“Let me be absolutely clear: I never contacted the Department of Justice, the White House or anyone else to seek favorable treatment regarding national security cases on which I was briefed, or any other cases,” she wrote.

“The value and the major limitations” of a recently released CIA documentary collection on Col. Ryszard Kuklinkski, the Polish official who provided a vast quantity of political and military intelligence to the CIA in the 1970s and early 1980s, are assessed by Mark Kramer of Harvard University in a new publication of the Cold War International History Project.  See “The Kuklinski Files and the Polish Crisis of 1980-1981” (pdf), March 2009.

The Office of Technology Assessment played a significant role in informing Congressional deliberations on science policy over the course of two decades and generated a body of policy analysis that retains much of its value years after OTA was terminated in 1995.  Today, “the argument to restart the OTA is overwhelming,” argued Gerald Epstein in an essay in Science Progress.

Had Amb. Charles Freeman not withdrawn from his appointment as chairman of the National Intelligence Council, under pressure of controversy regarding his views on Israel, Saudi Arabia and China, he would have attempted to alter the Intelligence Community’s classification practices, he said in an interview with Jim Lobe of Interpress Service news agency.  “I would have liked to have tried to change the culture to value lower levels of classification rather than higher in terms of output,” Amb. Freedman said.  “In general, I would’ve tried very hard to encourage members of the intelligence community to use classified information as a form of corroboration for information that is not classified, or is not terribly sensitive even if it is classified. In other words, I would urge analysts to write down rather than write up terms of levels of classification.”

The disclosure of four Bush-era Office of Legal Counsel opinions on interrogation and torture is likely to have significant political and perhaps legal consequences.  But their release is also a landmark in national security classification policy.

These OLC memos, released by the Justice Department yesterday, were among the most urgently sought and the most fiercely protected classified records of recent years.  They addressed fundamental questions of national policy and yet they were off limits to public review and discussion by virtue of their classification status.

“The interrogation techniques described in these memos have already been widely reported,” President Obama said in a statement explaining his decision to declassify the memos.  “Withholding these memos would only serve to deny facts that have been in the public domain for some time.”

But remarkably, this sensible view — that information which has reached the public domain should not remain classified — does not characterize or dictate classification policy.

“Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,” according to Executive Order 12958, as amended.

Nor can judicial review reliably compel disclosure of such information.  In order to win declassification and disclosure of previously released information, a FOIA plaintiff must show that each of the following conditions is met: 1) the information previously released is as specific as the information that is being requested; 2) the information requested matches the information previously released; and 3) the information requested has been made public through an official and documented disclosure (Fitzgibbon v. CIA, D.C. Circuit, 1990).

The new release does not alter this non-disclosure policy, which lends credence to the statement of former CIA director Michael Hayden that the government could have successfully argued against disclosure of the OLC memos in court, as he favored.

But the four newly declassified memos are now themselves “an official and documented disclosure.”  This means that not only have their combined 124 pages been published (with limited redactions) but also that an obstacle to the release of a related body of legal and intelligence information has now been removed.  Such material can no longer legitimately remain classified.  Furthermore, the new release will also enable participants and other officials to speak publicly about the issues involved.

The memos are shocking in their calculated brutality and in their likely violation of categorical legal prohibitions against torture.  They are, as President Obama stated, evidence of a “dark and painful chapter in our history” involving practices that should “never take place again.”  But they also provide abundant food for thought as well as new insight into their authors’ thinking, and their predicament.

The authorization for coercive interrogation of al Qaeda operative Abu Zubaydah was predicated on the “certain” belief that “he is withholding information regarding terrorist networks in the United States… and information regarding plans to conduct attacks within the United States” and that “he refuses to divulge” the information.  Furthermore, there was an estimated threat level “equal to that which preceded the September 11 attacks.”  “This opinion is limited to these facts.  If these facts were to change, this advice would not necessarily apply.”  (“Interrogation of al Qaeda Operative” [pdf], August 1, 2002, at page 1).

In other words, it appears that the OLC authors proceeded not out of sadism or indifference, but out of desperation.

They recognized that under other circumstances (such as law enforcement), the coercive practices that they were authorizing could be thought to “shock the conscience.”  But they concluded that coercive interrogation by the CIA did not violate that standard since it was only being used where the detainee had “knowledge of imminent terrorist threats against the USA” and that it had already proved effective in producing “critical, actionable intelligence.” (“Application of U.S. Obligations Under Article 16” [pdf], May 30, 2005, at pp. 3, 29ff).

The development of the OLC memos suggests that if torture is to be permanently abolished, alternatives to coercive interrogation that are at least as effective need to be identified, or else the occasional prospect of an “imminent terrorist threat” threatening thousands of lives must be accepted in principle as preferable to the extreme violations of human dignity authorized by OLC.

A couple of other points.  Both President Obama and Attorney General Holder noted that the OLC memos were released as a consequence of  ongoing litigation.  In other words, their release is thanks to the Freedom of Information Act lawsuit filed by the ACLU and its co-plaintiffs, and the resonance that the lawsuit found in the press, the blogosphere and the public.  Congressional oversight did not get the job done (despite a Senate Judiciary Committee subpoena for these records).  This reflects a significant and dangerous weakness on the part of Congress.

Yesterday, former CIA Director Michael Hayden told MSNBC that the CIA interrogation program “began life as a covert action.”  If that is true, it means that there should be a Presidential “finding” authorizing the program, and that such a finding should have been provided to Congressional overseers.  As a covert action, the program may also have entailed active deception.  It’s one more loose end that remains to be tied.

Michael Hayden and former Attorney General Michael Mukasey criticized the release of the OLC memos in “The President Ties His Own Hands on Terror,” Wall Street Journal, April 17.

The ACLU called for appointment of an independent prosecutor to investigate torture under the Bush Administration, in an April 16 release.

Former Justice Department attorney Thomas Tamm, who was one of the early sources for the December 2005 New York Times story on warrantless government surveillance and who is under threat of prosecution for having revealed classified information without authorization, yesterday received the Ridenhour Prize for Truth-Telling.

The Ridenhour Prizes, named for the late Ron Ridenhour who exposed the 1968 My Lai massacre, are intended to “foster the spirit of courage and truth,” particularly when doing so involves defiance of official authority at some personal cost.

Other Ridenhour Prizes, presented at a ceremony yesterday, were given to New Yorker writer Jane Mayer, New York Times columnist Bob Herbert, and reporter Nick Turse.

Noteworthy new reports from the Congressional Research Service, obtained by Secrecy News, include the following (all pdf).

“The National Intelligence Council: Issues and Options for Congress,” April 10, 2009.

“Pakistan’s Capital Crisis: Implications for U.S. Policy,” updated March 6, 2009.

“Direct Overt U.S. Aid and Military Reimbursements to Pakistan, FY2002-FY2009,” updated April 15, 2009.

“China-U.S. Relations: Current Issues and Implications for U.S. Policy,” April 2, 2009.

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“The consequences of a prolonged economic downturn–including real estate foreclosures, unemployment, and an inability to obtain credit–could create a fertile recruiting environment for rightwing extremists and even result in confrontations between such groups and government authorities,” according to a new assessment (pdf) from the Department of Homeland Security Office of Intelligence and Analysis.

“In addition, the historical election of an African American president and the prospect of policy changes are proving to be a driving force for rightwing extremist recruitment and radicalization.”

“A recent example of the potential violence associated with a rise in rightwing extremism may be found in the shooting deaths of three police officers in Pittsburgh, Pennsylvania, on 4 April 2009,” the DHS report said.

See “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” Department of Homeland Security Office of Intelligence and Analysis, April 7, 2009 (For Official Use Only).

The report has drawn attention from several conservative bloggers and talk show hosts, who interpreted the report’s references to right-wing positions on abortion, immigration and gun control as defamatory in this context.  The “document targets most conservatives and libertarians in the country,” according to The Liberty Papers blog.

The report, however, describes “extremists” more narrowly as those “that are primarily hate-oriented” and those that “reject federal authority,” not those who simply oppose abortion or immigration.

A 2001 report prepared for the U.S. Department of Energy examined “Left-Wing Extremism: The Current Threat” (pdf).

DHS reportedly issued its own analysis of left-wing extremism earlier this year. (See Leftwing Extremists Likely to Increase Use of Cyber Attacks over the Coming Decade [pdf], Department of Homeland Security Office of Intelligence and Analysis, January 26, 2009.)

Update: “Unfortunately, this report [on Rightwing Extremism] appears to have blurred the line between violent belief, which is Constitutionally protected, and violent action, which is not,” wrote House Homeland Security Committee chairman Rep. Bennie Thompson in an April 14 letter (pdf) to DHS Secretary Janet Napolitano. “I am disappointed and surprised that the Department would allow this report to be disseminated to its State, local and tribal partners in its present form.”

In an April 15 statement on the report, Secretary Napolitano said: “We are on the lookout for criminal and terrorist activity but we do not – nor will we ever – monitor ideology or political beliefs.”