“There is a great deal of over-classification,” admitted Adm. Dennis C. Blair, the nominee to be the next Director of National Intelligence, at his confirmation hearing last week.

“Some of it, I think, is done for the wrong reasons, to try to hide things from the light of day. Some of it is because in our system, there is no incentive not to do that, and there are penalties to do the reverse, in case you get something wrong and don’t classify it.”

“So I think we need to do fundamental work on the system,” he said in response to a question from Sen. Ron Wyden at the January 22 hearing.

“I’ll be working to see if we can come up with a different approach that incentivizes it at the right level and that informs not only those of you who have security clearances on this committee but the wider interested public whose support we need,” Adm. Blair said.

Sen. Sheldon Whitehouse pursued the same question.  “My experience,” the Senator said, “is that, over and over and over again, we have seen official secrecy used not for national security purposes, but to mislead the public and to frame — or more particularly, mis-frame — an outside, political debate. Will you pledge to us that you will take this trust of secrecy that you are given as Director of National Intelligence and use it only to protect national security and not to manipulate public opinion or frame or mis-frame political debates?”

“Absolutely, Senator,” Adm. Blair replied.

The DNI-nominee also told Sen. Kit Bond and Sen. Whitehouse that he favored prosecution of leakers of classified information.  “If I could ever catch one of those it would be very good to prosecute them.”

He suggested that there might be new technical steps that could be taken to identify leakers.

“If confirmed,” he added, “I would like to come to talk to you about some ideas where we can build in some technical, some procedural safeguards into agencies so that it’s not a case of going back afterwards and trying to get records and question people but we have some tools that will let everybody who works for the government know that if you are going to pass classified information to a reporter or to someone, there will be a trace of it which will make it relatively quick to identify you as the one who did it,” Adm. Blair told Sen. Whitehouse.

Presumably this refers to improved tracking of classified intelligence “records,” not of “information.”

In answers to pre-hearing questions (pdf), Adm. Blair said that he favored continued publication of the annual intelligence budget total.  “It has not, to my knowledge, caused harm to the national security, and provides important information to the American public,” Blair said.

He also endorsed declassification review of 25 year old classified intelligence records.

“While much intelligence information remains sensitive even at 25 years, that which can be released to the public should be. Intelligence — especially the intelligence that informed key policy decisions — can and should ultimately become part of the country’s historical record.” [at p. 55]

The profound confusion that prevails in intelligence classification policy was recognized last year in an internal report from the Office of the Director of National Intelligence (Secrecy News, April 10, 2008). Even the most basic concepts of classification policy, it said, are open to question and interpretation.

“The definitions of ‘national security’ and what constitutes ‘intelligence’ — and thus what must be classified — are unclear,” the ODNI report stated (pdf).

A new directive signed by outgoing DNI Mike McConnell on January 21 is intended to “foster an enduring culture of responsible sharing and collaboration within an integrated [intelligence community]” and to breakdown traditional “stove pipes” that inhibit communication within the government.  See “Discovery and Dissemination or Retrieval of Information Within the Intelligence Community,” Intelligence Community Directive 501 (pdf),  January 21, 2009.

The continuing classification of obsolete Cold War intelligence satellite imagery, to the disappointment of space historians and others, was examined in “A ray of sunshine into a dark world: the future declassification of satellite reconnaissance information” by Dwayne Day in The Space Review, January 26.

Secrecy News last week misquoted a line in President Obama’s inaugural speech.  He did not say: “And those of us who manage the public’s knowledge will be held to account….”  What he said was “And those of us who manage the public’s dollars will be held to account….”

The erroneous reference to “public knowledge” was also published by the Washington Post, United Press International, and other news outlets.  It may have originated with a mistake by the FDCH transcription service.

The text of the inaugural address on the White House web site says “public dollars,” not “public knowledge,” and it is clear from the tape of the speech that that is correct.  Thanks to reader LD for questioning the discrepancy.

There must be lots of historic events that were mistakenly transcribed and reported.

“You can’t make an anomalous rise twice,” said J. Robert Oppenheimer, according to the official record of his momentous hearing before the Atomic Energy Commission in 1954.

But what Oppenheimer actually said was “You can’t make an omelet rise twice” (as noted by Philip M. Stern).  Oh well.

The Oppenheimer case is to be reviewed once again in the latest episode of PBS’s American Experience tonight.

In a breathtaking series of statements and executive actions, President Barack Obama yesterday announced “the beginning of a new era of openness in our country.”

“For a long time now there’s been too much secrecy in this city,” he told reporters at a January 21 swearing-in ceremony.

“The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed” (a paraphrase of the October 2001 policy statement of former Attorney General John Ashcroft).  “That era is now over.”

“Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known,” President Obama said.

Moreover, “I will also hold myself, as president, to a new standard of openness…. Information will not be withheld just because I say so.  It will be withheld because a separate authority believes my request is well-grounded in the Constitution.”

“Let me say it as simply as I can.  Transparency and the rule of law will be the touchstones of this presidency.”

Accordingly, the President issued several new policy statements.  A new policy on Freedom of Information directed that “All agencies should adopt a presumption in favor of disclosure” and called for the Attorney General to develop new FOIA guidelines reflecting that principle.  A broader statement on Transparency and Open Government directed agencies to “harness new technologies to put information about their operations and decisions online and readily available to the public,” and ordered preparation of recommendations for an Open Government Directive.  A new executive order rescinded an order issued by former President Bush that imposed increased restrictions on public access to presidential records.

The whole package gained immense force from the fact that it was presented on the President’s first full day in office.  (By comparison, the Clinton and Bush Administrations did not get around to addressing FOIA policy until October of their first year in office.)  The actions closely tracked the recommendations of openness advocates, and they represented a personal commitment to openness and accountability that goes far beyond what any previous President has dared to offer.

Inevitably, several caveats are in order.  A “presumption of disclosure” really only applies to records that are potentially subject to discretionary release, which is a finite subset of secret government information.  Vast realms of information are sequestered behind classification barriers or statutory protections that remain unaffected by the new policy statements.  “In the face of doubt, openness prevails,” the President said.  But throughout the government secrecy system, there is not a lot of doubt or soul-searching about the application of secrecy.

For example, last week Lt. Gen. Ronald L. Burgess, Jr., the director of the ODNI Intelligence Staff, denied a FOIA request for declassification and release of the 2006 intelligence budget total, even though the 2007 and 2008 budget numbers have already been officially disclosed (Secrecy News, January 14).  According to ODNI, the 2006 number is still classified, and its disclosure would compromise intelligence sources and methods.  The problem here is not that doubt mistakenly yielded to secrecy instead of disclosure.  The problem is that General Burgess and his colleagues cling to an obsolete and counterproductive classification framework.

Unfortunately President Obama’s new directives do not yet encompass the needed overhaul of the national security classification system.  That may have to wait another day or two.

“The Bush administration has left in its wake a demoralized national-security press corps, battered by leak investigations, subpoena-happy prosecutors, and a shift in the legal and wider culture away from the previous understanding of journalism’s mission and First Amendment protections,” writes Laura Rozen in the Columbia Journalism Review.  See her story “Hung Out to Dry” along with a series of other articles on openness and secrecy.

“Secrecy” by Peter Galison and Robb Moss, a movie that critically examined the national security secrecy system from several contrasting perspectives, is now available on DVD.  It premiered last year to appreciative reviews.

Attorney Sheldon I. Cohen represented a naturalized American of Israeli origin who was initially denied a security clearance after he said that he would not bear arms against Israel in the event of a conflict between Israel and the United States.  Mr. Cohen describes the resolution of the case in a new write-up (pdf).

The admiration that many Americans feel for President Obama is celebrated and ridiculed in a new anthology of Obama speeches and writings, published in the form of a “Little Blue Book” that “easily fits into pocket or purse.”  President Obama’s “guiding principles will enlighten the minds of the people and prepare the way for a new era of change,” the booklet promises.  “In order to master the President’s ideology, it is essential to study many of the basic concepts over and over again, and it is best to memorize important statements and apply them repeatedly.”

Updated below

President Barack Obama found room in his inaugural address to affirm a commitment to open, accountable government.

“And those of us who manage the public’s knowledge dollars will be held to account, to spend wisely, reform bad habits and do our business in the light of day, because only then can we restore the vital trust between a people and their government,” the President said.

There are several notable aspects to this formulation.  First, it clearly states that government information belongs to the public and that it is only temporarily managed by its current custodians in office.  It reasserts the original constitutional linkage between public disclosure and wise government spending.  It acknowledges the need for reform and correction of bad government information habits.  And it implicitly recognizes that the vital relationship of trust between the people and the government has been broken and needs to be restored.

Some of the Obama Administration’s initial steps towards greater openness seem to reflect more enthusiasm than careful consideration.

For example, the new White House web site now states that “We will publish all non-emergency legislation to the website for five days, and allow the public to review and comment before the President signs it.”

This does not make a lot of sense, since the White House cannot amend legislation that has already been passed by Congress or take any other action in response to public “review and comment” except to veto the measure.  Public comments on pending legislation need to be directed to members of Congress, whose specific function is to represent their constituents’ interests and concerns.

Nevertheless, the proposal is another sign of a new willingness to engage the public through increased disclosure and communication.  And it’s another reason to stop and wonder at this new Administration.

Update: And see President Obama Declares “A New Era of Openness”, January 22.

The structure and functions of the normally somewhat opaque Federal Emergency Management Agency (FEMA) are illuminated in a 238-page briefing book (pdf) that was prepared for the presidential transition.

“The FEMA 2009 Presidential Transition Binder… is intended to serve as a reference for FEMA leadership and employees to help orient them to its organizational structure, programs, resources, stakeholders, and operations,” the document states.

The Binder, which has not otherwise been made readily available to the public, was obtained by Jonah Czerwinski, who writes the Homeland Security Watch blog.

The outgoing head of the Bush Administration Office of Legal Counsel took the time to issue an opinion (pdf) last week stating that a forty-year-old memorandum issued by President Lyndon B. Johnson limiting use of polygraph tests is not binding on executive branch agencies today.

The Johnson memorandum had stated that in order “to prevent unwarranted intrusions into the privacy of individuals[,]… use of the polygraph is prohibited” in the Executive Branch, with three “limited exceptions.”

But in a 12-page OLC opinion dated January 14, 2009, Steven G. Bradbury concluded that the Johnson memo was never formally issued, that it was contradicted by subsequent actions and that in any event it is not binding on executive branch agencies today.

The OLC memo was previously noted by polygraph critic George Maschke of Antipolygraph.org, who also posted a copy of the LBJ memo on polygraph testing.

When it upheld the constitutionality of warrantless intelligence surveillance under certain very particular circumstances in a ruling (pdf) that was disclosed last week, the Foreign Intelligence Surveillance Court of Review was acting on an incomplete factual record that may have skewed its decision, according to Senator Russ Feingold (D-WI).

“It is my view that the Court’s analysis would have been fundamentally altered if the company that brought the case had been aware of, and thus able to raise, problems related to the government’s implementation of the law, about which I have repeatedly raised concerns in classified settings,” Sen. Feingold said.

The new decision “placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access.”  The court therefore ruled “without the benefit of an effective adversarial process,” he said in a January 16 statement.

In any case, Sen. Feingold stressed, the new decision “in no way validates or bolsters the president’s illegal warrantless wiretapping program.  The decision, which only addressed surveillance authorized by the Protect American Act (PAA) enacted in August 2007, did not support the President’s claim of constitutional authority to violate the law.  Nor did the decision uphold the constitutionality of the PAA in all cases, but rather it upheld only the Act’s application in this particular case.”

While narrowly limited in scope to the specific, never-to-be-repeated circumstances of this case, the new ruling explicitly states for the first time that there is a foreign intelligence exception to the Fourth Amendment:  “[W]e hold that a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” [at page 17]  (More from Emptywheel, Glenn Greenwald, Volokh.)

The Russian Shkval torpedo was tested for Iranian naval officials in 2004 and the resulting data were described in several newly disclosed Persian-language documents.

Iran’s own Hoot torpedo is evidently derived from the Shkval.  Both are high-speed, supercavitating anti-ship missiles.

Some of the newly disclosed Iranian documents, which include Shkval technical specifications and test performance data as well as Hoot production records, are marked “khayli mahramaneh” or “very confidential,” the third of four classification levels used in Iran.  The documents have not been approved for public release, but copies were obtained by Secrecy News.

The President of the United States has broad and essentially unfettered authority to issue pardons for offenses against the United States, a new Congressional Research Service report on the subject explains.

“It also appears that a pardon may be revoked at any time prior to acceptance or delivery” of the warrant of pardon, according to the CRS assessment, which finds no flaw in the recent decision by President Bush “not to execute” a previously announced pardon in the case of real estate developer Isaac R. Toussie.  See “An Overview of the Presidential Pardoning Power” (pdf), January 7, 2009.

Some other new or newly updated CRS reports that have not been made readily available to the public include the following (all pdf).

“Nuclear Weapons in U.S. National Security Policy: Past, Present, and Prospects,” updated December 30, 2008.

“Nuclear Arms Control: The Strategic Offensive Reductions Treaty,” updated December 30, 2008.

“Organizing the U.S. Government for National Security: Overview of the Interagency Reform Debates,” updated December 16, 2008.

“Iran’s Nuclear Program: Tehran’s Compliance with International Obligations,” December 4, 2008.

“U.S. Military Stop Loss Program,” January 8, 2009.

“Department of Defense Facilities Energy Conservation Policies and Spending,” December 31, 2008.

“Congressional Commissions: Overview, Structure, and Legislative Considerations,” December 19, 2008.

“Terrorism and Security Issues Facing the Water Infrastructure Sector,” updated November 17, 2008.

“Covert Action: Legislative Background and Possible Policy Questions,” updated December 1, 2008.

The National Counterterrorism Center (NCTC), a component of the Office of the Director of National Intelligence, may obtain access to federal databases containing non-terrorism-related information in order to acquire information needed for authorized counterterrorism purposes, pursuant to a recent memorandum of agreement (pdf) between the Director of National Intelligence and the Attorney General.

“NCTC will access information in such datasets identified as containing non-terrorism information… only to determine if the dataset [also] contains terrorism information,” the memorandum states.

“NCTC is not otherwise permitted under these guidelines to query, use, or exploit such datasets (e.g., analysts may not ‘browse’ through records in the dataset that do not match a query with terrorism datapoints, or conduct ‘pattern-based’ queries or analyses without terrorism datapoints),” the memo directs.

The seven-page Memorandum of Agreement has not been approved for public release, but a copy was obtained by Secrecy News.  It took effect on November 4, 2008.

“Most of the terrorists arrested in the U.S. have supported themselves with common criminal activities” and therefore NCTC would have a legitimate need for access to related law enforcement information, a senior intelligence official from another agency told Secrecy News.

The new memo “regularizes the process by which NCTC can access information not originally collected for intelligence purposes,” the official said.  It also “inserts the ODNI Civil Liberties Protection Officer into the process with an affirmative role for the first time — I think.”

The memorandum makes the ODNI Civil Liberties Protection Officer responsible for ensuring that NCTC complies with privacy guidelines when accessing non-terrorism-related databases.

“At a time where we would expect to find increasing stability in the [national security classification] program, we are instead finding failure with the implementation of basic requirements,” wrote William J. Bosanko, director of the Information Security Oversight Office (ISOO), in the latest ISOO annual report to the President (pdf).

Out of more than 1,000 classified documents examined by ISOO last year, “the appropriateness of classification was subject to question in over 25 percent,” Mr. Bosanko reported.  See the FY 2008 ISOO Report to the President, transmitted January 12, 2009.

In what may be the report’s most significant finding, ISOO discovered that the majority of classification guides used by government agencies to prescribe exactly what information should be classified at what level are badly out of date.

“Overall, 67 percent of the guides agencies reported as being currently in use had not been updated within the past five years,” the ISOO report said.  In effect, agencies are continuing to impose outdated classification restrictions on newly generated information.

This finding underscores the utility of, and the need for, an agency-by-agency “scrub” of all classification guides in order to eliminate obsolete classification practices.  (For more on this approach, see “Overcoming Overclassification,” Secrecy News, September 16, 2008.)

The new ISOO report also had some favorable news.  The number of original classification authorities (who are authorized to designate new information as classified) declined slightly.  The number of original classification decisions — new secrets — dropped by 13 percent.  For the fourth year in a row, a majority of new classification actions were assigned a declassification date of ten years or less.  The number of classification challenges within the executive branch disputing the classification status of certain information rose to 436 formal challenges from 275 the year before.  The ISCAP, which reviews appeals of declassification requests that have been denied, declassified a greater percentage of information than in past years.

But in general, declassification languished.  “The overall number of pages reviewed and pages declassified by Executive branch agencies has declined significantly from previous years.”  And it is unlikely that agencies will meet a December 31, 2009 deadline for automatic declassification of 25 year old records that contain multiple agencies equities (or interests), the ISOO report said.

In the end, the classification system can only work as well as government officials want it to work, the ISOO report concluded.

“Ultimately, the success or failure [of agency classification policies] depends on the commitment of the agency heads and senior agency officials to the classified national security information program established by the President,” ISOO said.