The late Senator Jesse Helms, who died on July 4, was an arch-conservative opponent of civil rights legislation, arms control treaties and other liberal causes. Though none of the obituaries mentioned it, he was also an outspoken critic of government secrecy.

“This government is shot through with willy-nilly applications of secrecy,” he complained in January 1995 at the first meeting of the Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission), of which he was a member.

“I’ve been fussing for years about the application of secrecy on just about every document in this town,” he said then.

Senator Helms co-sponsored secrecy reform legislation based on the recommendations of the Moynihan Commission. That legislation was not enacted. But as chairman of the Senate Foreign Relations Committee, he helped pass legislation to require disclosure of most U.S. arms sales to foreign governments, which was signed into law.

“Secrecy all too often … becomes a political tool used by Executive Branch agencies to shield information which may be politically sensitive or policies which may be unpopular with the American public,” he testified at a Senate hearing in 1997. “Worse yet, information may be classified to hide from public view illegal or unethical activity.”

“On numerous occasions I, and other Members of Congress, have found the Executive Branch to be reluctant to share certain information, the nature of which is not truly a ‘national secret,’ but which would be potentially politically embarrassing to officials in the Executive Branch or which would make known an illegal or indefensible policy,” Sen. Helms said.

The Director of National Intelligence will oversee security clearance investigations and related policies on access to classified information for all federal agencies, according to an executive order issued yesterday by President Bush.

The move appears to significantly augment the authority of the DNI since it extends his reach to personnel policies and security clearances that are unrelated to intelligence information.

“The Director of National Intelligence … shall direct the oversight of investigations and determinations of eligibility for access to classified information or eligibility to hold a sensitive position made by any agency,” the order stated.

(A “sensitive position,” as defined in a 1953 executive order, is one whose “occupant … could bring about, by virtue of the nature of the position, a material adverse effect on the national security.”)

The DNI was made “responsible for developing uniform and consistent policies and procedures” for security clearance investigations and adjudications government-wide.

The new executive order also reiterates the familiar requirement of security clearance “reciprocity,” i.e. that “background investigations and adjudications shall be mutually and reciprocally accepted by all agencies.”

Illustrating why this requirement has never been satisfactorily implemented, the new order firmly prohibits agencies from imposing their own additional security requirements but then, in the very same sentence, allows exceptions for polygraph testing or, more generally, “to protect national security.”

See “Reforming Processes Related to Suitability for Government Employment, Fitness for Contractor Employees, and Eligibility for Access to Classified National Security Information,” Executive Order 13467, June 30, 2008.

A federal appeals panel found that the designation of a Chinese detainee held in U.S. custody as an “enemy combatant” was “not valid” (pdf) because the classified evidence offered by the government was not sufficient to sustain the charge.

In the first legal challenge to enemy combatant status, Huzaifa Parhat, an ethnic Uighur, admitted to being an enemy of the People’s Republic of China but denied any connection with al Qaida or the Taleban and specifically denied that he was an enemy of the United States.

Military prosecutors argued that he qualified as an enemy combatant because he was “affiliated” with military forces that were “associated” with al Qaida and the Taleban.

In a straightforward but nevertheless thrilling exercise of judicial authority, judges said that the classified evidentiary basis for that argument could not be independently validated and was therefore inadequate.

“We must be able to assess the reliability of that evidence ourselves,” the judges wrote.

“The government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded,” the court said.

Adding a literary flourish, the judges wrote that “the fact that the government has ‘said it thrice’ does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (‘I have said it thrice: What I tell you three times is true.’).”

Likewise, they wrote, “the government insists that the statements made in the [classified evidentiary] documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court.”

In a court of law, the prosecution must prove its case and not simply assert it, the judges explained.

“We […] reject the government’s contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant. To do otherwise would require the courts to rubber-stamp the government’s charges,” the ruling stated.

The court also denied a government request to block public disclosure of certain unclassified information in the trial record, including material marked “Law Enforcement Sensitive.” (The new ruling is apparently the first to cite President Bush’s memorandum on “controlled unclassified information” that was published on May 9, 2008.)

Significantly, the court rejected the government’s attempt “unilaterally to determine whether information is ‘protected’.” Sealing the judicial record, the judges said, is a decision for the court to make.

“Without an explanation tailored to the specific information at issue, we are left with no way to determine whether it warrants protection — other than to accept the government’s own designation. This we cannot do.”

Instead, the government was directed to file a new motion “accompanied by pleadings specifically explaining why protected status is required for the information that has been marked. Opposing counsel may file a response, and the government may file a reply, pursuant to our usual rules.”

The classified June 20, 2008 ruling in Huzaifa Parhat v. Robert M. Gates was redacted and approved for publication on June 30.

Noteworthy new reports from the Congressional Research Service include the following (all pdf). (These reports have also been made available on OpenCRS.)

“Iran’s Nuclear Program: Status,” June 23, 2008.

“Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas Corpus,” June 16, 2008.

“Status of Forces Agreement (SOFA): What Is It, and How Might One Be Utilized In Iraq?,” June 16, 2008.

“The National Bio- and Agro-Defense Facility: Issues for Congress,” updated May 19, 2008.

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

“The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11,” updated June 23, 2008.

“Conventional Warheads For Long-Range Ballistic Missiles: Background and Issues for Congress,” updated May 16, 2008.

“Iran’s Economy,” updated June 12, 2008.

“The Foreign Intelligence Surveillance Act: Comparison of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773,” June 12, 2008.

“Awards of Attorneys’ Fees by Federal Courts and Federal Agencies,” updated June 20, 2008.

President Bush described the status of U.S. armed forces deployed in combat operations around the world in a brief report to Congress this month that was required by the War Powers Act.

“It is not possible to know at this time the precise scope or the duration of the deployment of U.S. Armed Forces necessary to counter the terrorist threat to the United States,” he wrote.

See “A Supplemental Consolidated Report Consistent with the War Powers Act,” June 17, 2008.

July 4 will mark the 42nd anniversary of the Freedom of Information Act, Sen. Patrick Leahy noted in a statement on pending reforms to the Act.

“Now in its fourth decade [should be: fifth decade], the Freedom of Information Act remains an indispensable tool for shedding light on bad policies and Government abuses,” he said. “But there is still much more to be done to ensure that FOIA remains an effective tool for keeping our democracy open and free.”

Monday, June 30 marks the 100th anniversary of the Tunguska incident in 1908, in which a meteor or comet fragment entered the atmosphere over Tunguska in Siberia producing an enormous explosion.

“We know that a rather massive body flew into the atmosphere of our planet,” said Boris Shustov of the Russian Academy of Sciences.

“It measured 40 to 60 meters in diameter. Clearly, it did not consist of iron, otherwise it would have certainly reached the earth. The body decelerated in the atmosphere, the deceleration being very abrupt, so the whole energy of this body flying with a velocity of more than 20 meters per second [probably should be: kilometers per second] was released, which resulted in a mid-air explosion, very similar to a thermonuclear blast,” he told Tass news agency yesterday.

“The yield of the explosion totaled 10 to 15 megatons, which matches the yields of the largest hydrogen bomb ever tested on the planet [actually, the largest reported test in October 1961 had a yield in excess of 50 megatons]. The explosion felled some 80 million trees [but] it is generally assumed that the blast did not kill any people,” he added.

“The Tunguska phenomenon showed that the asteroid-comet danger is quite real. It happened not in the era of dinosaurs, but in our recent history. Russia was definitely lucky; had the body flown up to the Earth several hours later, it would have hit St.Petersburg. The consequences would have been horrendous,” he said.

“Impacts such as the Tunguska incident are thought to occur about once in one hundred years based on the density of impact craters on the Moon,” according to a White Paper on Planetary Defense attached to the 1994 U.S. Air Force report Spacecast 2020.

A 2007 NASA summary report to Congress on planetary defense is here (pdf). A longer account is here (pdf).

The House of Representatives yesterday passed a bill amending the Federal Advisory Committee Act (FACA) to strengthen the public disclosure provisions of that open government law. The bill was introduced by Rep. William Lacy Clay (D-MO) and Rep. Henry Waxman (D-CA) in April.

“In recent years, FACA has been undermined by the practices of the Bush administration,” said Rep. Waxman. “This bill is our response to these abuses.”

“This bill says that White House task forces can no longer operate in total secrecy. They must disclose whom they meet with and what recommendations they receive from special interests,” he said.

In particular, “This bill says that task forces like the Vice President’s energy task force must come out from the shadows,” Rep. Waxman said.

A proposed U.S. missile defense system in Europe that is intended to defend against a postulated Iranian missile threat cannot reasonably proceed without time-consuming testing and validation, according to a newly disclosed internal assessment (pdf) performed for the Department of Defense last year.

The U.S. Missile Defense Agency envisions deployment of Ground-Based Interceptors in Poland and an X-band radar in the Czech Republic, a proposal that has elicited significant political opposition from Russia, and some in Poland and the Czech Republic.

“These European assets are planned to provide defenses against long-range Iranian threats to the United States as well as against intermediate-range Iranian threats to Europe.”

But “the effectiveness of the European [missile defense] assets cannot be assumed,” said the Pentagon’s Director of Operational Test and Evaluation. “A robust test program is necessary to assess the operational effectiveness of these European [missile defense] assets.”

See “European GMD Mission Test Concept,” October 1, 2007.

This unclassified Pentagon report was not readily available to the public until a copy was obtained by the Associated Press. Desmond Butler of AP reported on the Pentagon document as well as the emerging consensus in Congress that system testing will in fact be required. See “Testing Could Delay Missile Defense Plans” by Desmond Butler, Associated Press, June 23, 2008.

Related background may be found in “Long-Range Ballistic Missile Defense in Europe” (pdf) from the Congressional Research Service.

Richard L. Garwin provided a critical assessment of the Iranian missile program and U.S. missile defense capabilities in “Evaluating Iran’s Missile Threat” (pdf), Bulletin of the Atomic Scientists, May/June 2008.

A proposed new federal rule would require executive branch agencies to accept the “suitability” determinations made by other agencies in hiring federal employees. This is a longstanding policy goal, known as “reciprocity,” that has been endorsed for decades but never fully implemented.

Suitability refers to a judgment that a potential employee is not disqualified from government service by a criminal record, a pattern of drug abuse, or other factors.

“This proposed rule is one of a number of initiatives the U.S. Office of Personnel Management (OPM) has undertaken to simplify and streamline the system of Federal Government investigative and adjudicative processes to make them more efficient and as equitable as possible.”

An interagency working group reported to the President in April on the elusive goal of security clearance reform, another perennial pursuit. See “Security and Suitability Process Reform” (pdf), April 30, 2008.

Recent activity on security clearances was reported in “Back to square one on clearances” by Florence Olsen, Federal Computer Week, June 16, 2008.

In a speech on the Senate floor yesterday, Sen. Christopher Dodd (D-CT) said the current debate over amending the Foreign Intelligence Surveillance Act (FISA) is not simply one more dispute over intelligence policy. Rather, he said, it calls into question basic issues of democratic governance and the rule of law.

He presented the case against the pending FISA amendments, particularly the provisions that would immunize telephone companies against lawsuits regarding their participation in domestic surveillance.

“Did the telecoms break the law? I don’t know. I can’t say so. But pass immunity, and we will never know,” Sen. Dodd said.

The President’s warrantless surveillance program, he said, is of a piece with other Administration departures from established legal norms including its policies on coercive interrogation and extraordinary rendition, as well as its pervasive secrecy.

“What is this about? It is about answering the fundamental question: Do we support the rule of law or the rule of men? To me, this is our defining question as a nation and may be the defining question that confronts every generation, as it has throughout our history.”

Sen. Dodd and Sen. Russ Feingold (D-WI) announced their intention to filibuster the FISA Amendment bill.

Sen. Jon Kyl (R-AZ) spoke in favor of the bill, including the provisions on shielding telephone companies from legal liability for their actions.

“Those who are opposed to the President’s efforts to monitor al-Qaida’s communications after 9/11 should take their argument to the President, not to the private companies that patriotically complied with government requests to help this country,” he said.