The Department of Energy has issued its twenty-second report to Congress (pdf) on inadvertent disclosures of classified nuclear weapons-related information in declassified files at the National Archives.

The new report said that reviewers had found an additional 736 pages containing such classified information within the more than 465,000 pages of records that they recently reviewed. The classified materials were removed from public access.

A copy of the new report, dated August 2006 but released in declassified form in September, is available here.

The DOE effort to review previously declassified records for inadvertent disclosures began in 1999 and has nearly been completed. DOE reviewers at the Archives will soon turn their attention to the proper processing of records that are currently undergoing or scheduled for declassification.

The National Security Archive at George Washington University recently obtained cost data on the Department of Energy program to review declassified records at the National Archives.

“So far, according to DOE, the review of the 204 million pages [the total reviewed since 1999] has cost nearly $22 million,” reported William Burr of the National Security Archive.

“While the average cost of the review was about 9 cents per page, the average cost of locating the suspect information was high. The cost of finding one of the 2,766 documents [containing classified data] was almost $8,000, while the cost of finding one of the withdrawn [classified] pages [that had been inadvertently disclosed] was around $3,300,” he wrote.

“The effort to retrieve [classified] ‘RD’ nuclear weapons design information is understandable (although whether adversaries would actually have seized opportunities to find the needle in the archival haystack is a problem worth considering).”

“It would have been far better, however, if DOE had undertaken its review with better guidelines enabling it to focus on protecting truly sensitive information instead of impounding documents that may have little or no sensitivity,” Burr wrote.

See “How Many and Where Were the Nukes?” edited by Dr. William Burr, National Security Archive, August 18, 2006.

The Department of Defense, having concluded that its interests would be best served by public disclosure, released a new directive (pdf) on policy towards enemy detainees and a new Army Field Manual (pdf) on detainee interrogation.

The new detainee policy explicitly bars “cruel, inhumane and degrading” treatment of detainees who are in Defense Department custody and defines a minimum standard of humane care. The new Field Manual identifies 19 interrogation techniques that may be used, three of which are new, and prohibits others.

Army Gen. John Kimmons said that the Pentagon weighed the costs and benefits of classifying portions of the new policy documents, and decided in favor of full public disclosure.

“We initially considered taking the additional techniques I described, the three new ones, and putting them into a classified appendix of some sort to keep them out of the hands of the enemy, who regularly reads our field manuals as a matter of course,” he said at a September 6 Pentagon press briefing.

“We weighed that against the needs for transparency and working openly with our coalition partners who don’t have access to all of our classified publications….”

“We also felt that even classified techniques, once you use them on the battlefield over time, become increasingly known to your enemies, some of whom are going to be released in due course. And so on balance, in consultation with our combatant commanders, we decided to go this [unclassified] route. We’re very comfortable with it; so are our combatant commanders,” Gen. Kimmons said.

The new Army Field Manual is still marked “For Official Use Only” (FOUO). But “in the interest of full transparency” the Army released it anyway.

“The ‘FOUO’ markings are no longer operative,” an Army spokesman said.

See “Human Intelligence Collector Operations,” Field Manual FM 2-22.3, September 2006 (11 MB PDF file).

See also “Department of Defense Detainee Program,” DoD Directive 2310.01E, September 5, 2006.

The Office of the Director of National Intelligence likewise found it advantageous and appropriate to disclose significant new information about 14 “high value detainees” that were formally transferred from the custody of the Central Intelligence Agency to the Department of Defense.

See “Summary of the High Value Terrorist Detainee Program” (pdf), ODNI, September 6.

See also ODNI “biographies” of the 14 detainees.

The occasional triumphs and frequent defects of media coverage of the detention and treatment of enemy combatants were reviewed at length by Eric Umansky in “Failures of Imagination,” Columbia Journalism Review, September/October 2006.

For the second year in a row, the U.S. Senate may fail to enact an intelligence authorization bill, effectively neutering the intelligence oversight process.

“The failure of the Senate to pass intelligence authorization for 2 years threatens to erode the ability of the Intelligence Committee to carry out the mission assigned to it by the Senate,” said Sen. Jay Rockefeller (D-WV), the ranking member of the Committee, in a floor statement.

In an effort to compel Senate action on the intelligence bill, Sen. Rockefeller introduced an amendment that would strip out language in the Defense Appropriations bill that provides a nominal authorization for continuing intelligence activities.

See September 6 statements by Sen. Rockefeller and Sen. Dianne Feinstein here.

In an attempt to limit unnecessary controls on unclassified information, Congress last year required the Department of Homeland Security to identify by title all DHS documents that were marked as “Sensitive Security Information” (SSI) that may not be publicly disclosed.

In response, the first DHS report to Congress (pdf) listed approximately one thousand titles that had been marked as SSI between October 1 and December 31, 2005.

A copy of that report has just been released with minor redactions in response to a Freedom of Information Act request from the Federation of American Scientists.

See “Department of Homeland Security Documents Designated in Their Entirety as Sensitive Security Information (SSI), October 1 Thru December 31, 2005” (3.5 MB PDF).

The National Archives described progress on a new National Declassification Initiative that has the potential to streamline declassification of historical records by eliminating multiple agency reviews of the same document.

Two more Army Field Manuals of specialized interest were published this week:

“Tactics, Techniques, and Procedures (TTPs) for the Joint Network Node-Network (JNN-N)” (pdf), Field Manual-Interim FMI 6-02.60, September 2006.

“Army Electromagnetic Spectrum Management Operations” (pdf), Field Manual-Interim FMI 6-02.70, September 2006.

Sen. Jon Kyl introduced a bill that would expand the definition of illegal material support to terrorists, modify the Classified Information Procedures Act, and penalize terrorism-related hoaxes. See his introduction of the “Terrorism Prevention Act of 2006” (S. 3848).

The record of the March 31, 2006 Senate Judiciary Committee hearing on a proposal by Sen. Russ Feingold to censure the President has recently been published.

“The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” according to a statement made in 1800 by John Marshall.

This so-called “sole organ” doctrine has frequently been invoked by the executive branch “to define presidential power broadly in foreign relations and national security, including assertions of an inherent executive power that is not subject to legislative or judicial constraints,” writes constitutional scholar Louis Fisher in a new Law Library of Congress study (pdf).

“When read in context, however, Marshall’s speech does not support an independent, extra-constitutional or exclusive power of the President in foreign relations.”

“The concept of an Executive having sole power over foreign relations borrows from other sources, including the British model of a royal prerogative,” Fisher concludes.

Fisher’s analysis of the sole organ doctrine is the first in a series of new studies of inherent presidential power prepared at the request of Senator Robert Byrd (D-WV). A copy was obtained by Secrecy News.

See “The ‘Sole Organ’ Doctrine” by Louis Fisher, Law Library of Congress, Studies on Presidential Power in Foreign Relations, Study No. 1, August 2006.

A landmark 1953 U.S. Supreme Court ruling which affirmed the government’s use of the “state secrets” privilege to withhold information is the focus of a new book called “In the Name of National Security” by constitutional scholar Louis Fisher.

The 1953 case, United States v. Reynolds, revolved around a request by three widows for access to an accident report about a military plane crash in which their husbands died in 1948. The government refused to release the requested report.

Confronted by this dispute, Fisher writes, the Supreme Court had at least two valid options. It could have ruled in favor of the widows, granting their claims for damages in full, as lower courts had done. Or it could have subjected the disputed document to in camera review to determine whether withholding was justified on security grounds.

But the Court did neither. Instead, it upheld the government’s denial of the document without bothering to review it, establishing an unfortunate precedent that would resound throughout the coming decades up to the present day.

Fisher traces the fateful Reynolds case from its inception throughout the litigation process to its final resolution. And he considers the ramifications of this frequently cited case for current national security policy.

Richly detailed, the new book combines legal scholarship, critical analysis, and even some “Law and Order”-style suspense.

See “In the Name of National Security: Unchecked Presidential Power and the Reynolds Case” by Louis Fisher, University Press of Kansas, September 2006.

I will introduce Louis Fisher at a September 11 event at the Library of Congress, where he will discuss the book and sign copies. Come on by.

By most available measures, official secrecy continued to expand last year, according to a new “Secrecy Report Card” issued by the coalition OpenTheGovernment.org.

“Every administration wants to control information about its policies and practices,” observed coalition director Patrice McDermott, “but the current administration has restricted access to information about our government and its policies at unprecedented levels.”

See “Secrecy Report Card 2006: Indicators of Secrecy in the Federal Government” (pdf), a report by OpenTheGovernment.org, September 2006.

Perhaps as significant as any of the report’s findings is the existence of the OpenTheGovernment.org coalition itself.

“Notwithstanding you,” former Information Security Oversight Office director Steven Garfinkel told me in a 1993 interview, “very few people give a tinker’s damn about the security classification system.”

That is manifestly not the case today. In addition to OpenTheGovernment.org, which is a broad coalition of politically diverse organizations including FAS and other veteran advocates of greater transparency, there are several other new efforts to confront official secrecy, including the Coalition of Journalists for Open Government, the Sunshine in Government Initiative, and Sunshine Week.

Detailed information on U.S. Navy policy regarding declassification of 25 year old documents is presented in a new Navy Instruction.

Along with policy and procedures, the document provides an extensive listing of Navy programs and systems that may be subject to declassification.

The Instruction is marked For Official Use Only. A copy was obtained by Secrecy News.

See “Declassification of 25 Year Old DON Information,” OPNAVINST 5513.16B, August 2, 2006 (72 pages in an unnecessarily large 30 MB PDF file).

See, relatedly, “Department of the Navy Classification Guides” (pdf), OPNAVINST 5513.1F, December 7, 2005.

See also “Limitations on Public Release and Disclosure of Information About Improvised Explosive Device Efforts” (pdf), Secretary of the Navy, April 2006.

“Engaging the People’s Republic of China in a dialogue is perhaps the most dramatic and far reaching decision undertaken by the Nixon administration,” as noted in a new volume of the U.S. State Department’s official Foreign Relations of the United States (FRUS) series devoted to that topic.

A 1972 NSC memorandum for Henry Kissinger published in the new volume expressed concern about efforts by the Federation of American Scientists and its then-President Jeremy J. Stone to promote scientific exchange with China.

“The Chinese, by encouraging Stone, are effectively undercutting the Committee on Scholarly Communication with the PRC, a group we have recommended to Peking,” complained NSC staffer John H. Holdridge in his August 28, 1972 memo to Kissinger (see document 248).

“The emergence of China as a major economic superpower has raised concern among many U.S. policymakers,” according to a new report from the Congressional Research Service.

“Some express concern that China will overtake the United States as the world’s largest trade economy in a few years and as the world’s largest economy within the next two decades. In this context, China’s rise is viewed as America’s relative decline.”

See “Is China a Threat to the U.S. Economy?” (pdf), August 10, 2006.

Some other notable new CRS reports include these:

“Israeli-Arab Negotiations: Background, Conflicts, and U.S. Policy” (pdf), updated August 4, 2006.

“The Public Health and Medical Response to Disasters: Federal Authority and Funding” (pdf), August 4, 2006.

The National Security Agency has instructed all of its employees to “actively” watch for unauthorized disclosures of classified information in the press and online, and to report such disclosures to the authorities.

“All NSA Components shall actively monitor media for the purpose of identifying unauthorized disclosures of classified NSA information,” a March 20 NSA directive stated.

“Media” here is defined as “any print, electronic, or broadcast outlet (including blogs) where information is made available to the general public.”

The new NSA policy on leaks was first reported by Siobhan Gorman in “NSA Strives to Plug Leaks,” Baltimore Sun, July 23, 2006.

An annex to the NSA directive lists a series of questions to be asked about unauthorized disclosures in order to assess their significance, including: “Is the disclosed information accurate?” Has the information been requested under the Freedom of Information Act? “If yes, identify the requester.”

In response to a FOIA request from the Federation of American Scientists earlier this month, the National Security Agency refused to release most of the new directive (pdf), which is marked “for official use only.”

But the full text was obtained independently by Secrecy News.

See “Reporting Unauthorized Media Disclosures of Classified NSA/CSS Information,” NSA/CSS Policy 1-27, 20 March 2006.