A recent Senate hearing on the subject of “secret law” drew an appreciative review today from syndicated columnist and first amendment champion Nat Hentoff.

“So important was an April 30 hearing before the Senate Judiciary Subcommittee on the Constitution that it should have been on front pages around the country,” he wrote.

“Titled ‘Secret Law and the Threat to Democratic and Accountable Government’ and chaired by Sen. Russ Feingold, Wisconsin Democrat. it focused on an issue ignored by the presidential contenders that has deeply weakened our rule of law.”

See “Let the Sunshine In” by Nat Hentoff, via The Washington Times, May 12.

“It’s a given in our democracy that laws should be a matter of public record,” wrote Senator Feingold in a Los Angeles Times opinion piece. “But the law in this country includes not just statutes and regulations, which the public can readily access. It also includes binding legal interpretations made by courts and the executive branch. These interpretations are increasingly being withheld from the public and Congress.”

See “Government in Secret,” by Sen. Russ Feingold, May 8.

In January 2008, the ODNI Open Source Center (OSC) published a report on “Recent Worldwide Research on Animal Pox Viruses” principally authored by Dr. Alfred D. Steinberg of the MITRE Corporation.

Secrecy News has been trying unsuccessfully to obtain a releasable copy of the document. A request to ODNI was forwarded to the Central Intelligence Agency, which manages the Open Source Center, months ago. CIA did not reply to the request. The MITRE Corporation has also been unresponsive, except for a courteous note from the author.

Readers who have ready access to the OSC report on animal pox viruses are invited to forward the unclassified document to me directly, preferably in soft copy. Confidentiality — or, alternatively, an effusive public expression of gratitude — is promised, as you prefer.

Copies of other OSC publications would also be welcome.

Noteworthy new reports from the Congressional Research Service that have not been made publicly accessible online include the following (all pdf).

“Defense: FY2009 Authorization and Appropriations,” May 5, 2008.

“Second FY2008 Supplemental Appropriations for Military Operations, International Affairs, and Other Purposes,” updated May 8, 2008.

“Director of National Intelligence Statutory Authorities: Status and Proposals,” updated April 17, 2008.

“Congress’s Contempt Power: Law, History, Practice, and Procedure,” updated April 15, 2008.

“Navy LPD-17 Amphibious Ship Procurement: Background, Issues, and Options for Congress,” May 6, 2008.

“U.S.-French Commercial Ties,” updated April 7, 2008.

“Strategic Airlift Modernization: Analysis of C-5 Modernization and C-17 Acquisition Issues,” updated April 15, 2008.

An interagency program established in 2006 by a classified Presidential directive is working to gather information on the status and security of nuclear materials around the world and to characterize them for forensic purposes. Remarkably, such a thing had never been done before in a rigorous way.

“On August 28, 2006, the national-level Nuclear Materials Information Program (NMIP) was established via National and Homeland Security Presidential Directive (NSPD-48/HSPD-17),” said Rolf Mowatt-Larssen (pdf), director of the Department of Energy Office of Intelligence and Counterintelligence at an April 2, 2008 hearing of the Senate Homeland Security and Governmental Affairs Committee.

“While the specifics of NMIP are classified, the goal of NMIP is to consolidate information from all sources pertaining to worldwide nuclear materials holdings and their security status into an integrated and continuously updated information management system,” he said.

“We have prioritized this program to focus on countries and facilities that we regard in the intelligence community to be of the highest risk,” said Mr. Mowatt-Larssen at another hearing last October 10. “So we have in fact identified the high-risk sites. We have identified what type of material is there. We have an assessment, an ongoing assessment, it’s being updated every day, on the status at the highest priority level. It’s a work in progress. It’s going to take a number of years to complete.”

“I’m very enthusiastic about what they’re doing,” said Matt Bunn, a nonproliferation expert at Harvard who has long advocated this kind of database development. “My hat’s off to them,” he said, adding that the Bush Administration deserved credit for surpassing previous efforts in this direction.

The subject matter of the classified Presidential directives NSPD-48 and HSPD-17 had not been publicly identified before Mr. Mowatt-Larssen’s testimony last month. Thanks to Jeffrey Richelson of the National Security Archive who noticed the disclosure. A list of known Bush Administration National Security Presidential Directives is available here.

A bill introduced in the House of Representatives would require U.S. intelligence agencies to report to Congress on the total number and cost of contractors that they employ and to provide detailed information on the services that contractors perform. Some controversial intelligence contractor activities would be prohibited outright, including arrest, interrogation and detention.

“Contracting in the intelligence community has more than doubled in scope in the last decade, and it’s clear that effective management and oversight is lacking,” said Rep. David Price (D-NC), who co-sponsored the new legislation (H.R. 5973) with Rep. Jan Schakowsky (D-CA).

“We’ve got to get a handle on it,” Rep. Price said. “That means demanding more complete information, establishing more effective management practices and, in some cases, drawing a red line to prevent the privatization of especially sensitive activities.”

The two Members of Congress hope to include the provisions of their bill in the 2009 intelligence authorization act, which is being marked up in the House Intelligence Committee today. See the “Transparency and Accountability in Intelligence Contracting Act of 2008.”

The fact cited by Rep. Price that intelligence contracting “has more than doubled in scope in the last decade” was first reported by journalist Tim Shorrock writing in Salon and elsewhere.

Mr. Shorrock has recently authored a book on intelligence contracting which describes as much about the sensitive subject as intrepid reporting can uncover. See “Spies for Hire: The Secret World of Intelligence Outsourcing,” Simon & Schuster, 2008.

The Director of National Intelligence last week issued several new Intelligence Community Directives (ICDs) that implement new community-wide personnel practices, including a performance-based compensation policy that rewards superior job performance.

The new payment policy “links performance-based pay increases and bonuses to individual accomplishments, demonstrated competencies, and contributions to organizational results.”

“Higher performance and greater contribution to mission should result in proportionally higher rewards for similarly-situated employees.”

The new payment and personnel policies, part of DNI J. Michael McConnell’s 100-day and 500-day plans, are intended to modernize the business practices of U.S. intelligence agencies and, implicitly, to make government service somewhat more competitive with intelligence contractors in the private sector.

The new personnel policies will also replace the standard government personnel grading system known as the General Schedule (GS) for all intelligence agency employees, except that senior officials at the GS-15 or higher grade are exempted.

The new IC Directives, all dated April 28, 2008, were released under the Freedom of Information Act. They include:

ICD 650, National Intelligence Civilian Compensation Program: Guiding Principles and Framework (pdf)

ICD 652, Occupational Structure for the Intelligence Community Civilian Workforce (pdf)

ICD 654, Performance-Based Pay for the Intelligence Community Civilian Workforce (pdf)

ICD 656, Performance Management System Requirements for Intelligence Community Senior Civilian Officers (pdf)

Copies of these and other IC Directives are available here.

The Office of the Secretary of Defense (OSD) generates some of the most sensitive and most consequential records in the U.S. Government, along with an enormous volume of ephemeral material. Managing this endless flow of records efficiently and effectively is a challenge.

Close students of OSD records management policy will find useful reference data in two new Pentagon volumes.

General records maintenance policies are spelled out in “Office of the Secretary of Defense (OSD) Records Management Program — Administrative Procedures,” (pdf) Administrative Instruction 15, change 1, April 18, 2008.

Records schedules approved by the National Archives for the disposition of all OSD component records are compiled in “Office of the Secretary of Defense (OSD) Records Management Program — Records Disposition Schedules,” Administrative Instruction 15, volume 2, April 18, 2008.

China’s foreign policy goals and actions in Asia, Africa and Latin America are assessed in a new report to Congress (pdf) from the Congressional Research Service.

“The study opens with an overview section discussing China’s presumed foreign policy goals, the attractions and limitations of China’s ‘soft power,’ and the implications and options for the United States. The memorandum proceeds to an analysis of China’s relations with countries in Latin America and the Caribbean, the Southwest Pacific, Japan and South Korea, Central Asia, Southeast Asia, and Sub-Saharan Africa.”

The study was released by Senator Joseph Biden, chairman of the Senate Foreign Relations Committee.

“It is my hope that this study will inform debate about China and help point the way toward policies that will not only respond to those Chinese actions that are at odds with U.S. interests, but will also build on the many common interests created by China’s enhanced integration with the international community,” Sen. Biden wrote in a foreword.

See “China’s Foreign Policy and ‘Soft Power’ in South America, Asia, and Africa,” April 2008.

“The number of DEA intelligence analysts has grown from 11 since the DEA’s inception in 1973 to 710 stationed around the world as of March 15, 2008,” according to a new report from the Justice Department Inspector General (IG) on the Drug Enforcement Administration (DEA) as an intelligence agency.

The new report (pdf) provides the most detailed public account available of DEA’s intelligence function and its role as one of the sixteen member agencies in the U.S. intelligence community.

The IG report noted a generally favorable evaluation of DEA intelligence, except for significant delays in publication of time-sensitive intelligence information.

“The DEA Chief of Intelligence told us that when reports officers receive information related to terrorism, weapons, or a foreign country’s military, the cable must be prepared and disseminated to the intelligence community within 24 to 48 hours of receipt. Of the 4,500 cables prepared since June 2004, we tested 81 cables for timeliness of dissemination. Our testing showed that cables are transmitted on average 34 days from the date the original information was received by the DEA.”

See “The Drug Enforcement Administration’s Use of Intelligence Analysts,” Audit Report 08-23, Department of Justice Office of the Inspector General, May 2008.

Some of those who idly speculate about nominees to cabinet positions in the next Administration have mentioned Justice Department Inspector General Glenn A. Fine, who is widely respected for his independence, as a possible future Attorney General.

Secret law that governs the conduct of government activities but is inaccessible to the public is “a particularly sinister” phenomenon that is “increasingly prevalent,” said Senator Russ Feingold today at a hearing of the Senate Judiciary Committee Subcommittee on the Constitution.

The hearing produced a particularly rich record on the subject of secret law from a broad and diverse set of perspectives (including one view that “there is no such thing” as secret law).

In my own testimony (pdf), I provided a catalog of the many current forms of “secret law” and some of their objectionable consequences.

“If the rule of law is to prevail, the requirements of the law must be clear and discoverable,” I suggested. “Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability.”

The classification of the Office of Legal Counsel (OLC) memorandum of torture authored by John Yoo was “one of the worst abuses of the classification process I have seen during my career,” testified J. William Leonard (pdf), the former director of the Information Security Oversight Office.

More generally, “OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public,” said Prof. Dawn E. Johnsen (pdf), former head of the OLC, “particularly when advising the executive branch that in essence it could act contrary to federal statutory restraints.”

Current OLC director John P. Elwood (pdf) contended that current OLC disclosure policy “is consistent with the approach of prior Administrations.”

Brad Berenson (pdf), a former associate counsel to the President, articulated “legitimate interests in secrecy” and cautioned against disclosure initiatives that could have unintended consequences.

Prof. Heidi Kitrosser (pdf) explained the constitutional framework within which secrecy disputes take place and urged more “effective congressional oversight” to restrain abuses of secrecy.

Attorney David Rivkin, a frequent defender of Administration policies, said that the “law of war” paradigm with all of its attendant secrecy remains the appropriate one.

Sen. Sam Brownback expressed skepticism about new disclosure requirements, while Sen. Sheldon Whitehouse probed the destabilizing implications of the Administration view that executive orders can be “waived” by the President without notice to Congress or the public.

For all of the differences of opinion, there was also a provisional consensus that the executive branch should be required to report to Congress when it significantly interprets or reinterprets a statutory requirement.

Chairman Feingold announced that the Office of the Director of National Intelligence had notified him that several long-sought opinions of the Office of Legal Counsel concerning interrogation of enemy combatants would be provided to the Senate Intelligence Committee and possibly, in some form, to the Senate Judiciary Committee. Sen. Feingold said he would continue to seek public disclosure of the opinions, a move that is not currently contemplated by the Administration.

The House Judiciary Committee has asked the Attorney General (pdf) to report on the classification status of all written opinions of the Justice Department’s Office of Legal Counsel issued since 2001 that deal with national security, terrorism, civil or constitutional rights of U.S. citizens, or presidential, judicial or congressional power.

“While we appreciate the need to hold closely certain types of information in certain circumstances, we are skeptical that more information regarding the Department’s analysis of relevant and important legal issues cannot responsibly be made public,” wrote Rep. John Conyers, Jr., chair of the House Judiciary Committee and Rep. Jerrold Nadler, chair of the Subcommittee on the Constitution on April 29.

Citing a recent story in Secrecy News, they told the Attorney General that “Recent revelations about the nature and extent of such secret opinions make plain the need for Congress and the American public to receive information on this subject.”

The September 6, 2007 Israeli strike against a suspected Syrian nuclear facility remains a puzzle despite the confident assertion by U.S. intelligence officials last week (pdf) that the target was a Syrian reactor constructed for the production of plutonium with the assistance of North Korea.

An extensive, frequently updated collection of open source materials on the subject — including foreign and domestic news reports, satellite imagery and analysis — has been compiled by Allen Thomson in “A Sourcebook on the Israeli Strike in Syria, 6 September 2007” (currently 812 pages in a 15 MB PDF file).

An updated bibliography of Syrian nuclear science research, from reactor safety to laser isotope separation, was prepared by researcher Mark Gorwitz. See “Syrian Nuclear Science Bibliography: Open Literature Citations” (pdf), April 2008.

A list of all cooperative agreements between the International Atomic Energy Agency and the Atomic Energy Commission of Syria, also compiled by Mr. Gorwitz, is here (pdf).

The web site of the Atomic Energy Commission of Syria is here.