In what may be a harbinger of new rigor in Congressional oversight, four Democratic members of Congress told the Environmental Protection Agency to cease and desist (pdf) from closing public document libraries and dispersing or destroying their contents unless and until EPA obtains specific approval from Congress.

Public interest groups including the Union of Concerned Scientists and the American Library Association had expressed alarm over the closure of EPA libraries and the reported destruction of documents. EPA said that it was modernizing and digitizing its collections and that no information has been destroyed.

“We request that you maintain the status quo of the libraries and their materials while this issue is under investigation and review by Congress,” wrote Ranking Members Reps. Bart Gordon (D-TN), John Dingell (D-MI), Henry A. Waxman (D-CA) and James Oberstar (D-MN) in a November 30 letter to EPA Administrator Stephen Johnson.

“It is imperative that the valuable government information maintained by EPA’s libraries be preserved,” the Congressmen wrote.

A federal judge ordered (pdf) the Central Intelligence Agency and the National Security Agency to respond within 30 days to a Freedom of Information Act request from reporter Joshua Gerstein for a copy of records regarding unauthorized disclosures of classified information (“leaks”).

Gerstein, a reporter with the New York Sun, had requested all “criminal referrals” regarding classified leaks filed since 2001; all responses to such referrals from the Justice Department; damage assessments of the unauthorized disclosures; and various other related records.

The CIA and NSA had granted Gerstein’s request for expedited processing but then failed to produce any records for eight months. Nor did they offer a justification for their dereliction. [Correction: CIA and NSA denied the request for expedited processing.]

Judge Maxine M. Chesney of the Northern District of California therefore ordered the agencies “to produce all non-exempt records and non-exempt portions of records that are responsive to Gerstein’s FOIA requests” within 30 days.

In a separate ruling, Judge Chesney also ordered (pdf) the Department of Defense, the Department of Justice and the FBI to respond within 30 days to similar requests from Gerstein regarding leaks.

Neither order precludes agencies from invoking lawful exemptions to the Freedom of Information Act and withholding documents accordingly.

See “Reporter Wins A Court Battle With Government,” New York Sun, December 4.

A newly updated Department of Defense Instruction sets forth Pentagon policy on interactions with the Government Accountability Office, the congressional investigative agency.

“It is DoD policy that the Department of Defense cooperate fully with the GAO and respond constructively to, and take appropriate corrective actions on the basis of, GAO reports,” the new Instruction (pdf) says.

But DoD will also “be alert to identify errors of fact or erroneous interpretation in GAO reports, and to articulate the DoD position in such matters, as appropriate.”

See “Government Accountability Office (GAO) Reviews and Reports,” DoD Instruction 7650.02, November 20, 2006.

“The USSR is publicly discussing an ambitious array of manned and unmanned space missions … planned over the next quarter century,” the CIA’s Foreign Broadcast Information Service reported in a 1987 internal assessment (pdf).

“Recent items in the Soviet press and scientific literature… have provided new details on Soviet space plans from the present through the end of this century,” said the FBIS analysis, which was marked “For Official Use Only.”

The Soviet Union ceased to exist in 1991. FBIS was absorbed into the DNI Open Source Center in 2004 2005.

See “Soviet Space Missions Planned Through the Year 2000,” Foreign Broadcast Information Service Science and Technology Perspectives, April 8, 1987 (4.5 MB PDF file, thanks to Allen Thomson).

Some other historical U.S. intelligence assessments of Soviet space programs can be found here.

Habeas corpus refers to the right of a person who has been detained by the government to challenge his detention in a court of law. Although the U.S. Constitution does not permit the suspension of habeas corpus except in case of invasion or rebellion, last September Congress did so anyway at the behest of the Bush Administration.

In a startling display of how easy it can be to disable even the most elementary constitutional protections, Congress enacted the Military Commissions Act of 2006, which would deprive suspected enemy combatants held abroad of their ability to seek judicial review of their status.

Proposed limits on habeas corpus were the subject of an intense and contentious hearing before the Senate Judiciary Committee recently, the record of which has just been published.

See “Examining Proposals to Limit Guantanamo Detainees’ Access to Habeas Corpus Review,” Senate Judiciary Committee, September 25.

Some of the more electric moments in the hearing were recounted in The New Yorker this week in a profile of Sen. Arlen Specter, who inexplicably condemned the proposed new restrictions on habeas corpus and then voted in favor of them. See “Killing Habeas Corpus” by Jeffrey Toobin, The New Yorker, December 4.

“In my view, [the Military Commissions Act] has dishonored our Nation’s proud history,” said Sen. Christopher Dodd (D-CT), who introduced legislation on November 16 that would repeal several of the Act’s provisions.

The elite JASON defense science advisory panel, most of whose deliberations and conclusions are classified, surfaced publicly for a moment with two new releases.

One new JASON report addresses the feasibility of reducing Defense Department dependence on fossil fuels.

“In light of an increasing U.S. dependence on foreign oil, as well as rising fuel costs for the U.S. and the DoD, and implications with regard to national security and national defense, JASON was charged in 2006 by the DDR&E [Director, Defense Research and Engineering] with assessing pathways to reduce DoD’s dependence on fossil fuels.”

A copy of the report was obtained by Secrecy News.

See “Reducing DoD Fossil-Fuel Dependence,” JASON report JSR-06-135, September 2006 (105 pages, 4.5 MB PDF).

The second release is an unclassified summary of a JASON review of plutonium aging in nuclear weapons, which found that most plutonium weapon “pits” have “credible lifetimes of at least 100 years.” This important conclusion diminishes the case for any new nuclear weapon development.

See the unclassified executive summary (pdf) of the JASON report on “Pit Lifetime” (flagged by ArmsControlWonk.com).

U.S. Navy research on “mind control techniques” cannot be performed on human subjects without the authorization of the Under Secretary of the Navy, according to a new Navy Instruction (pdf).

“The Under Secretary of the Navy (UNSECNAV) is the Approval Authority for research involving … severe or unusual intrusions, either physical or psychological, on human subjects (such as consciousness-altering drugs or mind-control techniques).”

The nature and scope of any such Navy research could not be immediately discovered.

See “Human Research Protection Program,” Secretary of the Navy Instruction 3900.39D, November 6, 2006 [at section 7(a)(2), page 9].

U.S. Air Force policy on “information operations” — which includes electronic warfare, psychological operations, military deception, counter-propaganda and more — is described in a recently updated Air Force Policy Document. See “Information Operations” (pdf), AFPD 10-7, 6 September 2006 (revised 8 Oct 06).

The apparent involvement of the North Korean government in drug trafficking and the implications of such activity for U.S. policy are the subject of a newly updated report from the Congressional Research Service (first reported by U.S. News and World Report). See “Drug Trafficking and North Korea: Issues for U.S. Policy” (pdf), updated November 27, 2006.

Now that the 109th Congress is drawing to a close, the Senate Select Committee on Intelligence has belatedly issued a report summarizing its activities during the 108th Congress (2003-2004). See, if you care to, “Committee Activities,” Senate Report 109-360, November 16.

A federal court this month denied a motion that would have eased the government’s prosecution of two former officials of the American Israel Public Affairs Committee who are charged with mishandling classified information.

Prosecutors had argued that they should not be obliged to prove that the defendants “actually knew the disclosure of the information was potentially harmful to the United States.”

But in a ruling from the bench on November 16, Judge T.S. Ellis III denied the motion and said they must prove the defendants had such knowledge.

The transcript of the November 16 hearing (pdf) was placed in the court docket yesterday and a copy was obtained by Secrecy News.

The latest ruling followed a momentous August 14 decision that non-government personnel who are not accused of espionage could be tried under the Espionage Act for receipt and transmission of classified information. In that decision, Judge Ellis denied a defense motion to dismiss the case altogether on constitutional and other grounds.

But he also imposed significant requirements on the prosecution to show that the defendants knew they were obtaining closely held national defense information; knew that it was unlawful to disclose that information; knew that the recipients in the press and a foreign embassy were not authorized to receive it; and that the defendants knew that disclosure of the information would be potentially damaging to the United States.

In an August 18 motion for clarification (pdf), prosecutors objected to the last requirement.

“Case law does not support the notion that ‘willful’ intent requires the government to prove that a defendant actually knew the information was potentially harmful to the United States,” the government argued.

But it does now, Judge Ellis said.

“To the extent that the motion seeks clarification that the Government need not prove at all that the defendants knew that their disclosure was potentially harmful to the United States, that’s not clarification, that’s reconsideration. So, I will deny it.” (Transcript, page 10).

As a result of the ruling, the prosecution faces a considerable, possibly insurmountable obstacle.

“You prevailed in significant part [against the defendants’ earlier motion to dismiss],” Judge Ellis told prosecutors on November 16. But “in prevailing, you have a burden that is not insubstantial.”

Likewise, “in losing [the motion to dismiss, defense attorneys] Mr. Nassikas and Mr. Lowell see some benefits to them,” Judge Ellis observed.

Given the difficulty of meeting the Court’s requirements, the fear that this unprecedented case would have a chilling effect on reporters and public interest advocates who depend upon unauthorized access to classified information has been muted somewhat.

Today, it might be noted, the New York Times published the full text of a classified November 8 memorandum from National Security Advisor Stephen Hadley regarding Iraq.

A trial date in the AIPAC case had originally been set for August 2006. But due to the complexity of the case the date has been repeatedly deferred. Judge Ellis said he would reserve May and June 2007 for a possible trial.

He also said that a leak investigation into who disclosed pre-indictment reports of the case to CBS News in August 2004 is “ongoing.”

Thousands of sensitive Nuclear Regulatory Commission documents regarding nuclear power plant security and vulnerability are publicly available in public document rooms across the country, NBC News reported on November 27 in a rather breathless “hidden camera” investigation that illustrates the difficulty that some people have in thinking clearly about secrecy and security.

“Many of the documents we were able to access were among the thousands of files the NRC pulled from its Web site after 9/11, deemed too sensitive to be available to the public. But that same effort to clean out sensitive information, it seems, was never made with NRC’s document collections in public libraries across the country,” reported Lisa Myers of NBC.

“What this means is that we’ve given the terrorists an easy map in order to find out about our nuclear facilities,” former New Jersey Governor and 9/11 Commission Chair Thomas Kean told NBC. “It’s the worst possible thing we could be doing.”

In fact, however, it is simple to think of worse possible things, beginning with publicizing the supposed existence of “an easy map” for terrorists.

“It is baffling to me that the NRC would consider this information so sensitive that it should be pulled from its on-line database, yet apparently the information was considered safe enough to be left in more than 80 public libraries scattered throughout the nation,” wrote Rep. Bart Gordon (D-TN) of the House Science Committee on October 27 (pdf).

But the distinction should not be hard to understand: The local public document rooms serve the communities that are most directly affected by nuclear plant safety and security issues. In contrast, an on-line database is globally accessible to anyone with an internet connection. It is not surprising that this elementary difference would be reflected in official disclosure policy.

“The NRC is aware that a limited amount of [sensitive] information continues to exist in the public domain,” according to an official statement (pdf) from the Nuclear Regulatory Commission responding to the NBC News report.

“However, NRC believes that the usefulness of this information is minimal given its age and subsequent changes to and improvements in security programs and physical modifications that have been made to nuclear facilities since Sept. 11.”

“The agency decided not to attempt to retrieve or restrict access to this information and instead has focused its actions on more recent and relevant information available in public electronic systems,” the NRC said.

That’s not good enough, fumed David Lochbaum, a nuclear safety engineer with the Union of Concerned Scientists, who echoed the views of Rep. Gordon.

“I fail to understand why I cannot obtain documents from the NRC’s [main] Public Document Room that I can access from … any of the dozens of other local public document rooms across the nation,” he wrote (pdf). “This profound inconsistency tells me loud and clear that NRC is wrong, either in denying access to the documents in the Public Document Room or in not restricting access to the documents elsewhere.”

If NRC had unlimited resources and no other responsibilities, then absolute consistency of the kind advocated by the Union of Concerned Scientists might be a virtue. But that is not the case.

In Secrecy News’ view, all of these individuals and NBC News have misconstrued the situation. The NRC has acted appropriately under the circumstances.

The fact is that unclassified NRC reports on power plant security and vulnerability — some of them quite graphic and detailed — have been deposited in public reading rooms for decades. Their purpose is to address community concerns about safety and security at local nuclear power plants.

There has never been a single case in which the availability of such reports caused or contributed to a public health, safety or security hazard.

Meanwhile, we are living in an era of unprecedented growth in official secrecy. Unclassified government records on a wide variety of matters affecting public health and national policy are increasingly marked “for official use only” and off-limits to citizens and taxpayers.

Scolding government bureaucracies for not being secretive enough undermines efforts to achieve the increased openness that the 9/11 Commission said was needed to prevent future terrorist attacks.

More fundamentally, there are an infinite number of ways to cause destruction and wreak havoc. Using the media to ratchet up public fear over the nightmare scenario du jour is the work of terrorists. It would be a pity to help them.

When new leadership takes control in the 110th Congress, the public may finally gain routine online access to finished products of the Congressional Research Service.

The prospects for adopting this simple change in disclosure policy are enhanced by the fact that such a move would not require Bush Administration concurrence.

For the time being, however, congressional policy prohibits direct public access to CRS reports.

Some notable new CRS reports obtained by Secrecy News that are not otherwise available online include the following (all pdf).

“Intelligence Estimates: How Useful to Congress?”, November 21, 2006.

“Iraqi Civilian Deaths Estimates,” November 22, 2006.

“Televising Supreme Court and Other Federal Court Proceedings: Legislation and Issues,” updated November 8, 2006.

“Anti-Terrorism Authority Under the Laws of the United Kingdom and the United States,” September 7, 2006.

The proliferation of new restrictions on the disclosure of information that is designated “sensitive but unclassified” (SBU) has been the subject of much churning within the national security policy apparatus this year.

Last December, President Bush ordered the development of recommendations to standardize procedures for marking information as SBU. By some counts, there are more than one hundred different SBU-type categories used in executive branch agencies.

“The growing and non-standardized inventory of SBU designations and markings is a serious impediment to information sharing among agencies, between levels of government, and, as appropriate, with the private sector,” according to a recent report to Congress.

The recommendations to reduce and standardize this hypertrophied tangle of restrictions were due last July. But the initial submission was deemed unsatisfactory and an interagency working group was sent back to the drawing board with a new deadline of January 2007.

The latest official word on the subject is contained in Chapter 10 of the “Information Sharing Environment Implementation Plan” (pdf), published by the Office of the Director of National Intelligence, November 2006.

Extensive background on the challenges posed by SBU and the options for dealing with it can be found in a newly updated report on the subject from the Congressional Research Service. See “Sensitive But Unclassified Information and Other Controls: Policy and Options for Scientific and Technical Information” (pdf), updated November 14, 2006.

A focused look at the handling and mishandling of SBU information within the Department of Justice was provided by the Government Accountability Office in a new report last week. See “Managing Sensitive Information: DOJ Needs a More Complete Staffing Strategy for Managing Classified Information and a Set of Internal Controls for Other Sensitive Information” (pdf), [GAO-07-83], October 2006.