A new assessment of the “state secrets privilege” disputes the claim presented in several other recent critiques that government reliance on the privilege to curtail or terminate sensitive litigation has increased in recent years.

“I find that the Bush Administration does not differ qualitatively or quantitatively from its predecessors in its use of the privilege,” concludes Robert M. Chesney in a forthcoming paper in the George Washington Law Review.

Along with a survey of the origins and the history of the state secrets privilege, the author, a law professor at Wake Forest University, challenges the contentions of legal scholars such as William Weaver and Louis Fisher who argue that there has been a distinct increase in use of the privilege.

In large part, the dispute reflects definitional differences regarding what constitutes a state secrets case, when the privilege is asserted, and how complete the available data are.

In a useful appendix to his paper, Prof. Chesney provides a tabulation of 89 opinions in which the state secrets privilege has been asserted since 1954. But these only include published opinions, a subset of the unknown total. And for technical reasons, he excludes some cases that have been previously cited as state secrets cases but includes others that have not been.

Fundamentally, he writes, “The reality is that we simply do not know, and have no way of finding out, just how frequently the privilege may have been asserted during any particular period.”

After reviewing how the government has used privilege over the years, he concludes that “the pattern of implementation of the state secrets privilege does not depart significantly from its past usage.”

Yet Prof. Chesney adds that “To say that the privilege has long been with us and has long been harsh is not to say, however, that it is desirable to continue with the status quo.”

He considers the feasibility of enacting reforms to limit or modify the assertion of the privilege and finds reason to conclude that such reforms may be appropriate, particularly “where the legality of government conduct is itself in issue.”

The abstract and a link to the full text of “State Secrets and the Limits of National Security Litigation” by Robert Chesney may be found here.

Professor Chesney blogs on national security law and policy at National Security Advisors.

“The state secrets privilege is too easy to abuse” wrote Louis Fisher in another new commentary for the Nieman Watchdog.

The U.S. Supreme Court should reject the idea of a secret law or directive that purports to regulate public behavior yet cannot be disclosed, several public interest groups argued yesterday.

The groups filed amicus curiae briefs in support of a petition by John Gilmore, who challenged a government requirement that he produce official identification in order to board an airplane and was told that he could not see the underlying policy document because it is “sensitive security information.”

The government says (pdf) that Mr. Gilmore had adequate notice of the ID requirement without inspecting the written policy.

But “The laws of the United States do not permit the Executive Branch to govern public conduct through secret laws,” wrote Marcia Hofmann of the Electronic Frontier Foundation (EFF), and the Court should therefore agree to review the Gilmore matter. The FAS Project on Government Secrecy signed on to the EFF brief (pdf).

Other amicus briefs were filed by the Reporters Committee for Freedom of the Press and the Electronic Privacy Information Center.

The latest briefs, and other background on the case, can be found here.

See also “Groups ask high court to review aviation ID policies,” by Andrew Noyes, National Journal’s Technology Daily, November 14.

Secrecy News will resume publication after Thanksgiving.

Update: There’s more on the story here.

Openness in government is a prerequisite to democratic self-rule and is the best available antidote to official corruption.

Yet greater transparency, particularly on the international level, “is not an unmitigated good,” argues Kristin M. Lord in a new, somewhat contrarian book.

“In all likelihood, the trend toward greater transparency will be at once positive and pernicious,” she writes, particularly since some disputes are based on real conflicts of interest and are not simple misunderstandings that could be resolved through greater disclosure.

“More information about the military capabilities of other states may show vulnerability and encourage aggression by the strong against the weak. Greater transparency can highlight hostility and fuel vicious cycles of belligerent words and deeds…. Transparency sometimes can make conflicts worse.”

The author illustrates her thesis with case studies of the role of information in the unfolding of the Rwanda genocide, and of information policy in Singapore’s relatively open yet rather authoritarian society. She seeks to distinguish between the means of openness and the hoped-for ends that are implicitly believed to follow from them, sometimes without justification.

For more information, including the first chapter of the book, see “The Perils and Promise of Global Transparency” by Kristin M. Lord, State University of New York Press, 2006.

The ill effects of too much transparency are still a rather hypothetical problem, since national and international efforts to control disclosure of information persist and in some cases are growing.

In another recent book, author Alasdair Roberts identifies several factors that are inhibiting transparency, including the privatization of certain categories of government information, the increasing influence of international organizations with restrictive information policies, and the growing international collaboration of security agencies.

See “Blacked Out: Government Secrecy in the Information Age” by Alasdair Roberts, Cambridge University Press, 2006.

The conduct of military operations in urban areas is the subject of a new Army doctrinal manual (pdf).

“Of all the environments in which to conduct operations, the urban environment confronts Army commanders with a combination of difficulties rarely found elsewhere [due to its] intricate topography and high population density.”

The hazards and threats posed by the urban environment, and the spectrum of potential responses to mitigate or exploit them, are considered at length in the 315-page unclassified manual.

See “Urban Operations,” U.S. Army Field Manual FM 3-06, 26 October 2006 (a large 14 MB PDF file).

The Main Directorate of Special Programs (Russian acronym: GUSP) is a somewhat mysterious Russian security organization that was established as one of the various successors to the former KGB.

“The directorate’s specialists have a great deal of experience in building fortified structures and tunnels and know how to handle explosives,” according to an article in Moskovskiy Komsomolets (16 September 1999).

“Moreover, the GUSP is the president’s very own special service and is accountable only to the head of state.”

In a neat bit of detective work, the Open Source Center (OSC) of the Office of the Director of National Intelligence noticed that new details of GUSP’s internal structure could be gleaned from official badges sold by commercial vendors of military paraphernalia.

“Russian commercial websites specializing in the sale of military insignia provided identifying information for a number of military units belonging to the Special Facilities Service (SSO) of the Main Directorate for Special Programs of the Russian Federation President (GUSP),” the Open Source Center reported this week (pdf).

“[This] is in most instances the only available public reference for these units and their affiliation with the Special Facilities Service,” the OSC said.

In another neat bit of work, Allen Thomson retrieved images of those telltale military insignia and combined them with other published material to produce “A Sourcebook on the Russian Federation Main Directorate of Special Programs (GUSP)” (pdf).

“For those who believe in transparent government and fact-driven legislation, the power shift in the U.S. Congress represents a unique opportunity to open up one important Congressional institution — the Congressional Research Service — and bring back another one — the Office of Technology Assessment — twelve years after it was disbanded,” suggests Christian Beckner in Homeland Security Watch.

The Army Science Board has drastically reduced public disclosure of its unclassified advisory studies, Inside the Army reported. And by doing so, it may have undermined the impact of its own work. See “Citing Security, Army Tightens Reins On Science Board Research” by Fawzia Sheikh, Inside the Army, November 13.

The unprecedented prosecution of two former pro-Israel lobbyists who are charged with improperly receiving and disseminating classified information has unpleasant implications for reporters who cover national security, among others. The case was reviewed by civil libertarian Nat Hentoff in “Bush Revives Espionage Act,” Village Voice, November 10.

“The mainstream news media is too fond of articles in which it is said some flavor of demonical terror menace can be put together from cookbooks found on the Internet,” George Smith blasts on his Dick Destiny blog.

Federal Computer Week did a profile this week of, ahem, me. See “A career as a secrecy watchdog” by Aliya Sternstein, FCW, November 13.

“I believe that the first order of business when we reorganize after the first of the year is congressional oversight,” said Senate Democratic Leader Sen. Harry Reid (D-NV) on November 10 after it became clear that Democrats would control the Senate and House in the next Congress.

“There simply has been no oversight in recent years,” Sen. Reid said.

That of course is an exaggeration. Even on the narrow subject of government secrecy, for example, Rep. Christopher Shays (R-CT) held multiple oversight hearings over the last two years that substantially enriched the public record.

But it is nevertheless true that congressional oversight atrophied under Republican leadership and that many fateful national policy decisions escaped scrutiny or challenge. That is expected to change as Democrats take charge in January.

New members and staff may need to learn or relearn the tools and techniques of oversight.

Beginning with the basics, the Congressional Research Service explains: “Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation.”

More simply still: “Oversight is a way for Congress to check on, and check, the executive.”

A 146 page manual prepared by CRS in 2004 describes the purposes and practices of congressional oversight in detail.

See “Congressional Oversight Manual” (pdf), October 21, 2004.

See also “Congressional Oversight” (pdf), updated January 3, 2006.

As Director of Central Intelligence from 1991-1993, Robert M. Gates, the nominee to be the next Secretary of Defense, grappled with questions of government secrecy more than almost any other agency head and helped to inaugurate a decade of increasing openness in intelligence and elsewhere.

Though he said the term “CIA openness” was “an oxymoron,” Mr. Gates also expressed the view that the interests of the CIA would best be served by eliminating unnecessary restrictions on disclosure of Agency information.

He undertook several initiatives to increase openness in U.S. intelligence, some of which did not fail.

He directed the publication of unclassified and declassified articles from the CIA journal Studies in Intelligence; he began the process of declassifying records concerning major U.S. covert actions during the cold war; he signaled the CIA’s willingness to cooperate in a government-wide program of declassifying records pertaining to the assassination of President Kennedy; and he initiated a program of declassification of National Intelligence Estimates on the former Soviet Union.

“Over the years, CIA’s approach to dealing with the media and the public has been, at best, uneven,” he said in a 1992 speech. It “took place against a backdrop of overall continuing and undifferentiated secrecy…. This is going to change.”

Mr. Gates laid out his views on the subject and his new initiatives in “CIA and Openness,” a speech to the Oklahoma Press Association, on February 21, 1992.

Most of Mr. Gates’s changes in intelligence disclosure policy were incremental and did not fundamentally transform either internal or external communications. Many of the proposed changes were adopted half-heartedly or inconsistently, or later abandoned. Some were not implemented at all.

For example, at his 1991 confirmation hearing, Mr. Gates expressed support for the idea of declassifying the intelligence budget total, but he never did so.

An excellent proposal that he presented in his 1992 speech — to “publish on an annual basis an index of all documents [CIA] has declassified” — was never accomplished, though it remains a valuable and perfectly achievable objective, for CIA and other national security agencies.

Mr. Gates’ halting efforts to increase openness were explicitly motivated by bureaucratic self-interest, but they were not less effective for that reason. To the contrary, he seemed to understand what few agency heads do: that openness and responsiveness to the public can advance the interests of an agency over the long run.

Mr. Gates has also displayed an appreciation for the role of congressional oversight that may yet serve him and the nation well.

“I sat in the Situation Room in secret meetings for nearly twenty years under five Presidents, and all I can say is that some awfully crazy schemes might well have been approved had everyone present not known and expected hard questions, debate, and criticism from the Hill,” he wrote in his 1996 memoir “From the Shadows” (p. 559).

“And when, on a few occasions, Congress was kept in the dark, and such schemes did proceed, it was nearly always to the lasting regret of the Presidents involved. Working with the Congress was never easy for Presidents, but then, under the Constitution, it wasn’t supposed to be. I saw too many in the White House forget that.”

The role of special operations forces in the U.S. military is steadily increasing but relatively little is publicly known about the activities and performance of these specialized units.

A new U.S. Army manual (pdf) fills in some of the gaps in the public record with a description of the structure, capabilities and missions of U.S. Army Special Operations Forces (ARSOF).

The manual has not been approved for public release, but a copy was obtained by Secrecy News.

“ARSOF are specially organized, trained, and equipped military forces,” it explains. “They conduct SO [special operations] to achieve military, political, economic, or informational objectives by generally unconventional means in hostile, denied, or politically sensitive areas.”

According to the Army, special operations forces can leap tall buildings in a single bound.

“They provide to the Nation an array of deployable, agile, versatile, lethal, survivable, and sustainable formations, which are affordable and capable of rapidly reversing the conditions of human suffering and decisively resolving conflicts.”

Counterterrorism missions are a particular focus of special operations today.

“ARSOF are, and will be for the near future, continuously engaged against terrorists whose goal is the destruction of American freedoms and the American way of life,” the new manual says.

Special operations also support intelligence collection.

“ARSOF are a key enabler in the WOT [war on terror] by conducting SO, which obtain actionable intelligence…. The results of these activities may be fed directly to a commander or Country Team or may be input into the intelligence process for processing, analysis, and dissemination to military and other government agencies (OGAs).”

There is also a domestic component to Army special operations, though it is not clearly specified in the manual.

“The United States employs ARSOF capabilities at home and abroad in support of U.S. national security goals in a variety of operations.”

The manual spells out the principles of special operations warfare, including preemption, dislocation, disruption, and so forth.

“SO [special operations] are frequently clandestine or low-visibility operations, or they may be combined with overt operations. SO can be covert but require a declaration of war or a specific finding approved by the President or the SecDef,” the manual states.

(The asserted ability of the Secretary of Defense to authorize covert operations has not been explicitly claimed before, to Secrecy News’ knowledge.)

“Significant legal and policy considerations apply to many SO activities,” the manual observes.

The new Army manual is unclassified, but its distribution is formally restricted “to protect technical or operational information.”

In view of the possible sensitivity of the document, Secrecy News is only posting the preface and the first of the eight chapters from the 119 page manual.

See “Army Special Operations Forces,” U.S. Army Field Manual FM 3-05, September 20, 2006.

The Congressional Research Service noted earlier this year (pdf) that “The 2006 Quadrennial Defense Review (QDR) has called for a 15% increase in special operations forces beginning in FY 2007.”

A former Federal Air Marshal who was fired by the Transportation Security Administration last April for disclosing “sensitive security information” (SSI) to the press has filed suit against the government arguing that his disclosure was protected under the Whistleblower Protection Act.

SSI is unclassified information regarding transportation security that is protected from disclosure by statute.

“Your release of SSI to the media was unauthorized and not protected by the First Amendment of the U.S. Constitution,” a TSA official wrote (pdf) to Air Marshal Robert MacLean, notifying him of his termination.

But whistleblower advocacy groups, including the Government Accountability Project and the Project on Government Oversight, have rallied to the support of Mr. MacLean.

“The Federal Air Marshal Service is in blatant violation of the Whistleblower Protection Act, which protects the disclosure of unclassified information that an employee feels endangers public health and safety, and Robert certainly did that,” said Adam Miles, legislative director of GAP, in a Washington Times story.

See “Ex-air marshal to sue over ‘SSI’ label” by Audrey Hudson, Washington Times, October 30.

See also “Air marshal’s firing prompts whistleblower suit” by Stephen Losey, Federal Times, November 7.

A 2004 report from the Congressional Research Service on SSI is here (pdf). Recent Congressional action to limit the application of SSI was described in Secrecy News here.

U.S. intelligence policy on covert action, including presidential authorization and congressional notification requirements, is “less than clear,” according to a new report (pdf) from the Congressional Research Service, and may need to be updated to encompass activities performed by the Department of Defense.

Covert action generally refers to CIA operations undertaken abroad against foreign targets in which U.S. sponsorship is concealed. But increasingly, some DoD special operations seem to fit the criteria for covert action.

“Senior U.S. intelligence community officials have conceded that the line separating CIA and DOD intelligence activities has blurred, making it more difficult to distinguish between the traditional secret intelligence missions carried out by each,” according to the new CRS report.

The Department of Defense contends that there is a difference between its “clandestine operations,” which do not entail any unique oversight requirements, and CIA “covert actions,” which cannot be conducted without a written presidential finding and congressional notice, mandated by a 1991 statute.

As explained by CRS, “a clandestine operation is an operation sponsored or conducted by governmental departments or agencies in such a way as to assure secrecy or concealment. Such an operation differs from a covert action in that emphasis is placed on concealment of the operation rather than on the concealment of the identity of the sponsor.”

In certain DoD special operations, however, “an activity may be both covert and clandestine.”

The CRS report presents a menu of policy questions for lawmakers to consider in evaluating whether to modify U.S. policy on covert action.

A copy of the report was obtained by Secrecy News.

See “Covert Action: Legislative Background and Possible Policy Questions,” November 2, 2006.

U.S. Army intelligence (G2) has developed a new methodology (pdf) for applying national security classification controls and for training personnel in the proper use of classification restrictions.

Failure to classify correctly has consequences, a tutorial on the new approach points out.

“Over-classification is costly, inefficient and can cause slow downs to development/operation. Under-classification can cause compromise, inadvertent disclosures and confusion.”

But getting it right is easier said than done, because it involves the conscious exercise of informed judgment.

“The descriptors used in addressing damage at the confidential (damage), secret (serious damage) or top secret (exceptionally grave damage) levels are subjective.”

The new Army methodology “provides a standardized method of making an objective decision about a subjective issue,” wrote Lt. Gen. John F. Kimmons, U.S. Army Deputy Chief of Staff for Intelligence, in a cover memorandum.

See “Standardized Methodology for Making Classification Decisions,” Office of the Army Deputy Chief of Staff, G-2, October 25, 2006.