In a remarkable episode from the Civil War that is not as widely known as it might be, General Ulysses S. Grant issued Order No. 11 on December 17, 1862 expelling all Jews from those portions of Kentucky, Tennessee, and Mississippi where his forces had taken the field.

Equally remarkable, President Lincoln did not say he would “stand by” his generals or that “we must give the military the tools it needs” to accomplish its mission. Instead, he rescinded the Order.

A century-old account of General Grant’s short-lived ban on Jews has recently been published online.

During the Civil War, President Lincoln repeatedly suspended habeas corpus and authorized other serious infringements on civil liberties. But there are some things that are not done in America, it appears, even when the survival of the nation is at stake. This was one of them.

General Grant’s action was not entirely irrational and prejudice-driven. An estimated 25,000 of the nation’s 150,000 Jews lived in the South and were loyal to the Confederacy, according to a 2005 Library of Congress exhibition. And some Jewish merchants would “roam through the country contrary to government regulations,” Grant complained.

“The President has no objection to your expelling traitors and Jew peddlers which I suppose was the object of your order,” wrote Gen. Henry Halleck to Gen. Grant, somewhat inelegantly. “But as it in terms proscribed an entire religious class, some of whom are fighting in our ranks, the President deems it necessary to revoke it.”

The story received only cursory, two-sentence treatment in the preeminent Lincoln biography (“Lincoln”) by David Herbert Donald, which mistakenly attributed Halleck’s “Jew peddler” phrase to Grant (p. 409).

And Grant himself did not mention Order No. 11 in his Memoirs. He deliberately omitted it, his son explained in a 1907 letter, because “that was a matter long past and best not referred to.”

To the contrary, however, this principled exercise of restraint by the President in time of war seems well worth remembering and pondering today, when basic civil liberties are again in dispute. (At his confirmation hearing today, Attorney General-nominee Michael Mukasey was unable or unwilling to categorically reject the possibility of indefinite detention of an American citizen without trial.)

The most detailed account of the origins and aftermath of General Grant’s Order No. 11 expelling the Jews from the areas under his control seems to be a 1909 book entitled “Abraham Lincoln and the Jews,” self-published by author Isaac Markens (pp. 10-17). That book, long out of print, was recently digitized and published by Google Books and is now freely available.

In 1876, President Ulysses S. Grant was an honored guest at the dedication of Adas Israel, which is now the largest Conservative synagogue in Washington, DC.

In an attempt to convey to reporters the sensitivity of classified signals intelligence information and to discourage unnecessary disclosure of intelligence sources and methods, the National Security Agency held a series of by-invitation-only seminars for reporters and editors dubbed “SIGINT 101.”

The seminars, which were apparently held on several occasions between 2002 and 2004, were first reported by Josh Gerstein in the New York Sun. See “Spies Prep Reporters on Protecting Secrets,” September 27.

The course outline and supporting documents (pdf) that were first obtained by Mr. Gerstein under the Freedom of Information Act provide some additional insight into NSA concerns about the loss of SIGINT sources and the possibility of voluntary steps by the press to help protect them.

“We want to emphasize that we deplore ‘leaks’ or other unauthorized disclosures of properly classified material,” the NSA course module states.

However, given the fact of leaks, “we also want you to understand that in many instances, we believe that reporters can deal with the content of leaks in a way that does not expose intelligence sources and methods.”

“We ask that when intelligence information is reported, fragile intelligence source and method information, which is unnecessary to informed debate, not be disclosed along with it.”

See SIGINT 101 Seminar Course Module, National Security Agency (2002?).

By an overwhelming majority, the House of Representatives voted yesterday to approve a limited federal shield law that would enable reporters to protect the confidentiality of their sources from compulsory disclosure under most circumstances. See the record of the October 16 House debate here.

The White House issued a strong statement of opposition and suggested the President would veto the reporter’s shield bill if adopted by Congress as written. “The legislation would make it extremely difficult to prosecute cases involving leaks of classified information and would hamper efforts to investigate and prosecute other serious crimes,” the October 16 statement said (pdf).

Noteworthy legal, regulatory and other publications from the Department of Defense include the following (all pdf).

“Forged in the Fire: Legal Lessons Learned During Military Operations, 1994-2006,” Center for Law and Military Operations, September 2006 (439 pp, 28 MB PDF file).

“Defense Civilian Intelligence Personnel System (DCIPS),” DoD Directive 1400.35, September 24, 2007.

“Minimum Security Standards for Safeguarding Biological Select Agents and Toxins,” Air Force Instruction DODI 5210.89_AFI 10-3901, 24 September 2007.

“Limitation of Authority to Deputize DoD Uniformed Law Enforcement Personnel by State and Local Governments,” DoD Instruction 5525.13, September 28, 2007.

Upon lawful request and for a thousand dollars, Comcast, one of the nation’s leading telecommunications companies, will intercept its customers’ communications under the Foreign Intelligence Surveillance Act.

The cost for performing any FISA surveillance “requiring deployment of an intercept device” is $1,000.00 for the “initial start-up fee (including the first month of intercept service),” according to a newly disclosed Comcast Handbook for Law Enforcement (pdf).

Thereafter, the surveillance fee goes down to “$750.00 per month for each subsequent month in which the original [FISA] order or any extensions of the original order are active.”

With respect to surveillance policy, the Comcast manual hews closely to the letter of the law, as one would hope and expect.

“If your [FISA intercept] request pertains to individuals outside the U.S., please be sure you have complied with all the requirements in 50 U.S.C. sections 105A and/or 105B,” the manual says, referring to provisions of the Protect America Act that was enacted last month. “Requests such as these can not be honored after one year and must be dated prior to February 5, 2008, unless extended by Congress.”

Comcast will also comply with disclosure demands presented in the form of National Security Letters. However, the manual says, “Attention must be paid to the various court proceedings in which the legal status of such requests is at issue.”

In short, “Comcast will assist law enforcement agencies in their investigations while protecting subscriber privacy as required by law and applicable privacy policies.”

At the same time, “Comcast reserves the right to respond or object to, or seek clarification of, any legal requests and treat legal requests for subscriber information in any manner consistent with applicable law.”

A copy of the manual was obtained by Secrecy News. See “Comcast Cable Law Enforcement Handbook,” September 2007.

The role of telecommunications companies in intelligence surveillance is under increased scrutiny as the Bush Administration seeks to shield the companies from any liability associated with their cooperation in what may be illegal warrantless surveillance.

Also, there are new indications that the unauthorized warrantless surveillance program pre-dated 9/11. The Rocky Mountain News, the Washington Post, and others reported allegations that the government may have penalized Qwest Communications for refusing to participate in a pre-9/11 National Security Agency surveillance program that the company believed might be illegal.

The Washington Post editorialized yesterday that the telecommunications companies should indeed be immunized against liability, as the Bush Administration desires. Even though it is not known exactly what the companies did, the Post said, they “seem to us to have been acting as patriotic corporate citizens in a difficult and uncharted environment.”

Writing in Salon.com, Glenn Greenwald disputed that view, arguing that patriotism lies in compliance with the law, not in mere obedience to executive authority.

Much of the doctrinal literature concerning Army special operations is restricted from public disclosure, often for good reasons and sometimes for reasons that are hard to understand.

But one new special operations manual has been approved for unrestricted public disclosure.

As the title indicates, “Airdrop of Supplies and Equipment: Rigging Loads for Special Operations” (FM 4.20-142, September 2007) deals with the proper packaging of military supplies for aerial delivery via parachute. A copy is available here (in a very large 28 MB PDF file).

Also on the subject of new military publications, the Congressional Research Service updated its report “Defense: FY2008 Authorization and Appropriations” on September 28, 2007.

The disclosure of a clandestine network of U.S. military officers that diverted classified documents from military agencies and illegally provided them to law enforcement agencies serves as a vivid reminder that improved information sharing within the government is a goal that has still not been achieved.

“Marine Gunnery Sgt. Gary Maziarz said patriotism motivated him to join a spy ring, smuggle secret files from Camp Pendleton and give them to law enforcement officers for anti-terrorism work in Southern California,” the San Diego Union-Tribune reported last Saturday.

Sgt. Maziarz and his men acted like Robin Hood in the forest of national security information, taking classified documents from the cleared and giving them to the uncleared.

“He knew his group was violating national security laws,” the Union-Tribune reported. “But he said bureaucratic walls erected by the military and civilian agencies were hampering intelligence sharing and coordination, making the nation more vulnerable to terrorists.”

This is of course a self-serving story, and it doesn’t explain the stolen weapons or steroids found along with the pilfered documents by military investigators.

But neither is there any evidence so far of espionage on behalf of a foreign power, or any indication of a financial motive in stealing the records.

Taken at face value, the rise of the interagency document smugglers points to a continuing defect in government information policy. It also suggests that the national security classification system may break before it bends. In other words, it may fail catastrophically before it can be substantially reformed.

See “Marine Took Files as Part of Spy Ring” by Rick Rogers, San Diego Union-Tribune, October 6.

The story was also picked up today by the Los Angeles Times.

The failure to achieve optimal information sharing is not in dispute.

“Institutional rules and legacy culture continue to hamper effective information sharing,” a report (pdf) from the Office of the Director of National Intelligence admitted yesterday.

“There are outdated policy, customs, and technical constraints on information access and dissemination that impede the production of finished products our customers require.”

See “500 Day Plan: Integration and Collaboration,” Office of Director of National Intelligence, October 2007.

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following.

“China-U.S. Relations: Current Issues and Implications for U.S. Policy,” updated October 1, 2007.

“North Korean Refugees in China and Human Rights Issues: International Response and U.S. Policy Options,” September 26, 2007.

“Saudi Arabia: Terrorist Financing Issues,” updated September 14, 2007.

“Terrorism in Southeast Asia,” September 11, 2007.

“Bangladesh: Background and U.S. Relations,” updated August 2, 2007.

“Cuba: Issues for the 110th Congress,” updated August 21, 2007.

“Presidential Directives: Background and Overview,” updated August 9, 2007.

For better or worse, contractors are now an indispensable part of the U.S. intelligence workforce, and greater attention is needed to manage them effectively, argues a recent study by a military intelligence analyst (pdf).

The author presents criteria for evaluating contractor support to various intelligence functions, and applies them in a series of case studies.

“This study assesses the value of current commercial activities used within DoD elements of the Intelligence Community, particularly dealing with operational functions such as analysis, collection management, document exploitation, interrogation, production, and linguistic support.”

In the best case, interactions with contractors can serve as a spur towards modernization of the intelligence bureaucracy itself, suggests the author, Glenn R. Voelz, a U.S. Army Major.

“Collaborative effort with nongovernmental entities offers a powerful mechanism to diversify and strengthen the IC’s collection and analytical capabilities, but to fully realize the benefit of these resources the management and oversight of commercial providers must become a core competency for all intelligence organizations.”

A copy of the study, published by the Joint Military Intelligence College, was obtained by Secrecy News.

See “Managing the Private Spies: The Use of Commercial Augmentation for Intelligence Operations” by Maj. Glenn J. Voelz, Joint Military Intelligence College, June 2006.

Also on the general subject of contractors, there is a January 2003 U.S. Army Field Manual entitled “Contractors on the Battlefield” (pdf), FM 3-100.21.

Among the more or less successful intelligence collaborations with industry that were examined by Maj. Voelz, there is nothing quite like the Bush Administration’s use of telephone companies to support the warrantless interception of domestic communications, a probable violation of the law for which the Administration is now urgently seeking retroactive immunity.

If foreign terrorists set out to undermine confidence in the American legal system as an arbiter of justice, they could hardly do more damage than the Bush Administration has done by its use of the “state secrets” privilege.

Khaled el-Masri, who alleged that he was abducted and tortured by the Central Intelligence Agency, will not be permitted to argue his case in a U.S. court because the Bush Administration asserted that “state secrets” would be compromised, and the U.S. Supreme Court this week concurred, rejecting el-Masri’s appeal.

This means that even if all of el-Masri’s allegations are true, there is no legal remedy available to him. The courthouse doors are closed in the United States. That is bad law and bad policy.

It also seems to be unnecessary, since courts have long demonstrated an ability to securely handle highly classified information, and have frequently done so in espionage trials and certain other criminal cases.

Recently, a group of law professors, scholars and activists urged Congress to confront the executive branch’s use of the state secrets privilege, and to establish new constraints on the privilege.

“Congress has a duty to examine how the state secrets privilege is being invoked by the executive branch and interpreted by federal courts. There is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process,” they wrote (pdf).

“Congress possesses the constitutional authority to act, and it should do so.”

The October 4 letter, coordinated by the nonprofit Constitution Project, may be found here.

At the end of Fiscal Year 2007, there were a total of 5,002 invention secrecy orders in effect under the Invention Secrecy Act of 1951, up from 4,942 the year before.

U.S. government agencies imposed secrecy orders on 53 patent applications filed by private inventors in FY 2007, prohibiting their disclosure or export, according to statistics obtained by Secrecy News this week from the U.S. Patent and Trademark Office.

The so-called “John Doe” secrecy orders imposed on private inventors are a constitutional anomaly since they appear to infringe on private speech. But their constitutionality has never been successfully challenged in court.

See the latest invention secrecy statistics here. Related background on invention secrecy is here.

The Information Security Oversight Office has published an expanded guide explaining how to properly mark classified documents. See “Marking Classified National Security Information” (pdf), October 2007.

A 1972 monograph prepared at the National Archives reviews the history of information control markings on military documents back to the 19th century and traces their development up to World War II. Such markings represent part of the pre-history of today’s national security classification system.

See “Origins of Defense-Information Markings in the Army and Former War Department” (pdf) by Dallas Irvine, National Archives Staff Information Paper, 1972.

A sizable collection of old military regulations relating to protection of confidential information is presented in a series of annexes to the paper (pdf).