“It’s not a crime to publish classified information,” explained Washington Post reporter Dana Priest in an electric moment on last Sunday’s NBC Meet the Press, even though “[commentator William] Bennett keeps telling people that it is.”

Mr. Bennett, who was sitting right next to Ms. Priest, had declared last April that reporters like Ms. Priest who publish classified information “against the wishes of the President” should be “arrested.”

“I don’t think what they did was worthy of an award,” Mr. Bennett had said, referring to the Pulitzer Prize-winning reporting by Ms. Priest and two New York Times reporters — “I think what they did is worthy of jail.” (Editor and Publisher, 04/18/06).

But Mr. Bennett was wrong and Ms. Priest was correct: There is no comprehensive statute that outlaws the publication of classified information.

(As Ms. Priest went on to explain, there are several narrow categories of classified information, such as communications intelligence, covert agent identities, and a few others that are protected by statute.)

A new report (pdf) from the Congressional Research Service describes the legal framework governing the disclosure and publication of classified national security information.

“This report provides background with respect to previous legislative efforts to criminalize the unauthorized disclosure of classified information; describes the current state of the laws that potentially apply, including criminal and civil penalties that can be imposed on violators; and some of the disciplinary actions and administrative procedures available to the agencies of federal government that have been addressed by federal courts.”

“Finally, the report considers the possible First Amendment implications of applying the Espionage Act to prosecute newspapers for publishing classified national defense information.”

The Congressional Research Service does not make its products directly available to the public. But a copy of the new CRS report was obtained by Secrecy News.

See “Protection of National Security Information,” June 30, 2006.

A private researcher investigating the history of the U.S. biological weapons program at the National Archives recently came up empty.

“She asked for the files for Fort Detrick from 1946 to 1956, and was brought 16 cartons,” recounted Milton Leitenberg of the University of Maryland. “However, every single file in every one of the 16 cartons had been removed, and replaced with a page dated post-2002, saying that the item had been withdrawn.”

The Fort Detrick records were removed from public access “after the Bush administration ordered agencies to withhold anything that might aid terrorists,” reported Scott Shane, then of the Baltimore Sun, in an August 1, 2004 Sun story on Fort Detrick’s Special Operations Division.

Meanwhile, the record of a congressional hearing that was held last year on biological terrorism has just been published.

See “Engineering Bio-Terror Agents: Lessons from the Offensive U.S. and Soviet Biological Weapons Programs,” House Committee on Homeland Security, July 13, 2005.

With its decision last week to strike down the Bush Administration’s unilateral creation of military tribunals for trying detainees, the Supreme Court highlighted and reinforced the rule of law in the conduct of military operations.

Several recent publications provide rich background on military law.

The 2006 edition of the “Operational Law Handbook” (pdf) published by the Army Judge Advocate General is “a ‘how to’ guide for Judge Advocates practicing operational law. It provides references and describes tactics and techniques for the practice of operational law.”

The Handbook covers the gamut of issues that arise in the field, from the Law of War to intelligence-related law to detainee operations.

See “Operational Law Handbook (2006),” Judge Advocate General’s Legal Center and School (598 pages, 3.7 MB).

U.S. military operations in Afghanistan and Iraq and the “war on terrorism” have raised a variety of novel legal issues, according to a 2004 study performed for the Army on “legal lessons learned.”

“Whether determining the applicability of the law of armed conflict to non-state terrorist actors, applying traditional and new fiscal authorities to a military occupation, or assisting in the development of rules of engagement (ROE) for an enemy that blended into civilian populations, JAs [judge advocates] and paralegals wrestled with cutting-edge legal issues during OEF [Operation Enduring Freedom] and OIF [Operation Iraqi Freedom].”

See “Legal Lessons Learned From Afghanistan and Iraq: Volume 1, Major Combat Operations,” Center for Law and Military Operations, 1 August 2004 (454 pages, 7.1 MB PDF).

Volume 2 of that study has recently been made public. See “Legal Lessons Learned From Afghanistan and Iraq: Volume 2, Full Spectrum Operations,” Center for Law and Military Operations, September 2005 (368 pages, 3.3 MB PDF).

Secrecy News is honored to be a recipient of the 2006 Public Access to Government Information award from the American Association of Law Libraries.

The U.S. Marine Corps has recently published a series of documents on counterinsurgency:

“Small-Unit Leaders’ Guide to Counterinsurgency,” June 2006 (4.7 MB PDF file).

“Countering Irregular Threats: A Comprehensive Approach,” 14 June 2006 (3.2 MB PDF file).

“Tentative Manual for Countering Irregular Threats: An Updated Approach to Counterinsurgency Operations,” 7 June 2006.

Military doctrine on the control of stress in combat is presented in a new Army field manual (pdf).

“In our own Soldiers and in the enemy combatants, control of stress is often the decisive difference between victory and defeat across the operational continuum. Battles and wars are won more by controlling the will to fight than by killing all of the enemy combatants. Uncontrolled combat stress causes erratic or harmful behaviors, impairs mission performance, and may result in disaster….”

See “Combat and Operational Stress Control,” U.S. Army Field Manual 4-02.51, July 2006.

A recent Congressional Research Service report “presents difficult-to-find statistics regarding U.S. military casualties in Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF, Afghanistan), including those concerning medical evacuations, amputations, and the demographics of casualties.”

“Some of these statistics are publically available at the Department of Defense’s (DOD’s) website, while others have been obtained through contact with experts at DOD.”

See “United States Military Casualty Statistics: Operation Iraqi Freedom and Operation Enduring Freedom,” June 8, 2006.

“Medical Program Support for Detainee Operations” (pdf) is the subject of Department of Defense Instruction 2310.08E, issued June 6, 2006.

The fortieth anniversary of the Freedom of Information Act, signed into law by President Johnson on July 4, 1966, was marked with the release of several interesting and informative publications.

The colorful and contentious history behind the adoption of the Act was described by Tom Blanton of the National Security Archive based on documents obtained from the Johnson Library. See “Freedom of Information at 40.” The legislative history of the Freedom of Information Act is newly available from the National Security Archive here.

The FOIA improvement plans that were recently developed by executive branch agencies were critically assessed by OpenTheGovernment.org in a new report. See “FOIA’s 40th Anniversary: Agencies Respond to the President’s Call for Improved Disclosure of Information.”

“The federal government continues to fall further behind in getting information to people seeking public records under the Freedom of Information Act,” according to a study (pdf) by the Coalition of Journalists for Open Government. “By far the heaviest use of the Freedom of Information Act comes from the nation’s businesses, seeking government records on contracts or for a host of other commercial uses,” another Coalition report found.

Sixty-eight countries now have freedom of information statutes, according to an updated survey by David Banisar published by freedominfo.org. See “Freedom of Information Around the World 2006.”

I chatted yesterday with reporter Julie Corwin of Radio Free Europe/Radio Liberty about “40 Years Of The Freedom Of Information Act”.

Three years into the war in Iraq, the U.S. Army has nearly completed a thorough revision and update of its official doctrine on counterinsurgency (pdf).

“It has been 20 years since the U.S. Army published a manual devoted to counterinsurgency operations, and 25 since the Marine Corps published its last such manual. With our Soldiers and Marines fighting insurgents in both Afghanistan and Iraq, it is thus essential that we give them a manual that provides principles and guidelines for counterinsurgency operations (COIN).”

The new doctrine begins with a thoughtful presentation of the nature of insurgency and counterinsurgency, their evolution and their characteristic strategies, and proceeds to consider the design of counterinsurgency operations.

“Traditionally, armies have had to unlearn much of their doctrine and (re)learn the principles of COIN while waging COIN campaigns.”

Counterinsurgency “presents a complex and often unfamiliar set of missions and considerations for a military commander.”

Among the “paradoxes of counterinsurgency” are the fact that “the more you protect your force, the less secure you are”; “the more force [is] used, the less effective it is”; and “sometimes doing nothing is the best reaction.”

The new counterinsurgency doctrine has not been publicly released, but a copy of the final coordination draft was obtained by Secrecy News.

See “Counterinsurgency,” U.S. Army Field Manual 3-24 (Final Draft), June 2006 (241 pages, 2.4 MB PDF file).

Some notable new reports of the Congressional Research Service not readily available to the public include the following.

“Nonproliferation and Threat Reduction Assistance: U.S. Programs in the Former Soviet Union” (pdf), updated June 26, 2006.

“Syria: U.S. Relations and Bilateral Issues” (pdf), June 22, 2006.

“Pakistan-U.S. Relations” (pdf), June 21, 2006.

“Iraq: Recent Developments in Reconstruction Assistance” (pdf), updated June 15, 2006.

“U.S. Policy Regarding the International Criminal Court” (pdf), updated June 14, 2006.

“U.S. Space Programs: Civilian, Military, and Commercial” (pdf), updated June 13, 2006.

“Homeland Security: Defending U.S. Airspace” (pdf), updated June 6, 2006.

The House of Representatives last week condemned the unauthorized disclosure of classified information concerning a government program to track terrorist financing that was reported in the New York Times, the Los Angeles Times and other news outlets on June 23.

The June 29 resolution, approved 227-183, included a veiled rebuke to the press, stating that the House “expects the cooperation of all news media organizations in protecting the lives of Americans … by not disclosing classified intelligence programs such as the Terrorist Finance Tracking Program.”

The House debate on the resolution was none too edifying.

Rep. Barney Frank pointed out that the resolution contained a number of factual errors, including its assertion that “In 1998, disclosure of classified information regarding efforts to monitor the communication of Osama bin Laden eliminated a valuable source of intelligence information on al Qaeda’s activities.”

Rep. Frank showed that this allegation, referring to a supposed leak that was published in the Washington Times, has been conclusively refuted. But to no avail. Under the uncompromising rules adopted by the Republican leadership, no amendments were permitted. As a result, it was not possible to correct errors in the House resolution or to clarify matters of principle.

Nevertheless, there is a broad consensus on the outer limits of the debate.

On the one hand, all parties (other than a few provocateurs on the political right) agree that freedom of the press means that the press must be free to publish more than just what government officials authorize them to publish. On the other hand, there is universal agreement even among the media that certain types of information should not be published in the interests of national security.

What remains in dispute is whether information on programs such as warrantless domestic surveillance or terrorist finance tracking falls in the proscribed category.

The transcript of the floor debate on House Resolution 895, “Supporting Intelligence and Law Enforcement Programs to Track Terrorists and Terrorist Finances,” may be found here.

The campaign to criminalize publication of classified information was reviewed by Scott Sherman in “Chilling the Press,” The Nation, July 17.

A ringing defense of the disclosure of the terrorist finance tracking program was offered in a June 28 editorial in the Minneapolis-St. Paul Star-Tribune that was syndicated by the Scripps Howard News Service. See “Secret U.S. program deserves scrutiny.”

One reason why classification is an unreliable guide as to what should or should not be published by the press is that classification policy is implemented erratically by the government.

In a new report for Congress, the Government Accountability Office found numerous problems in classification activity at the Department of Defense.

“Our review of a … sample of 111 classified DOD documents from five OSD offices shows that, within these offices, DOD personnel are not uniformly following established procedures for classifying information, to include correctly marking classified information,” the GAO report said.

“In our review of the OSD documents, we questioned DOD officials’ classification decisions for 29 documents–that is, 26 percent of the sample.”

“The majority of our questions centered around two problems: the inconsistent treatment of similar information within the same document, and whether all of the information marked as classified met established criteria for classification.”

See “Managing Sensitive Information: DOD Can More Effectively Reduce the Risk of Classification Errors” (pdf), June 30, 2006.

A companion report reviewed classification activity at the Department of Energy.

See “Managing Sensitive Information: Actions Needed to Ensure Recent Changes in DOE Oversight Do Not Weaken an Effective Classification System” (pdf), June 30, 2006.

Stanley Moskowitz, a Central Intelligence Agency official who recently played a leading role in winning declassification of intelligence records on Nazi war criminals, died last week.

“Stan Moskowitz deserves a lot of credit for the Nazi records release, which he managed to accomplish despite a lot of opposition from a directorate which shall not be named,” one former CIA employee told Secrecy News.

“His position was that, not only were the records 50 years old, but most of the people mentioned in them were Nazis for god’s sake. What and why should we still be protecting?”

“Stan Moskowitz pursued this like he did every other assignment in his lifetime of service to America, to preserve and protect our freedom while honoring the democratic traditions of a government which we can trust and be proud of,” wrote B, another admirer.

“He conducted his lifetime of service within the constraints of the ethical and moral principles which set us apart from those who wish us harm.”

See “Stanley M. Moskowitz, 68; Twice CIA Liaison to Congress,” Washington Post, July 1.

The global war on terror has cost the U.S. $437 billion since September 11, the Congressional Research Service estimated last month, including $319 billion for the war in Iraq. (The Pentagon claims the latter figure should be $210 billion.)

The CRS cost estimate has been widely reported, but the underlying report has not been widely available to the public. Now it is:

“The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11” (pdf), updated June 14, 2006.

Some other notable CRS reports obtained by Secrecy News include the following.

“Military Operations: Precedents for Funding Contingency Operations in Regular or in Supplemental Appropriations Bills” (pdf), June 13, 2006.

“Defense Procurement: Full Funding Policy — Background, Issues, and Options for Congress” (pdf), updated June 20, 2006.

“U.S. Democracy Promotion Policy in the Middle East: The Islamist Dilemma” (pdf), June 15, 2006.

“Freedom of Speech and Press: Exceptions to the First Amendment” (pdf), updated June 2, 2006.