Ideally, the change of presidential administrations would be the occasion for a transformation in the relationship between government and the public, in which government information becomes easily and rapidly accessible to all interested parties.

With that possibility in mind, dozens of public interest organizations concerned with access to government information (including FAS) have collaborated to develop actionable recommendations for the new administration to promote open, accountable government.

The process, convened and led by OMB Watch, produced a 112-page volume (pdf) that addresses transparency, access, national security secrecy, freedom of information policy, and related topics. See “Moving Towards a 21st Century Right to Know Agenda: Recommendations to President-Elect Obama and Congress.”

Other transition-related initiatives on open government were compiled on the Sunshine Week web site.  See “Groups Call for Transparency in New President’s Administration.”

And others yet are still to come.

The conduct of unconventional warfare is explored in depth in a major new U.S. Army Field Manual on the subject (pdf).

Unconventional warfare (UW) is defined as “Operations conducted by, with, or through irregular forces in support of a resistance movement, an insurgency, or conventional military operations… This definition reflects two essential criteria: UW must be conducted by, with, or through surrogates; and such surrogates must be irregular forces.”

Thus, U.S. support of the Contras in Nicaragua in the 1980s constituted unconventional warfare, as did U.S. support of anti-Soviet mujahideen in Afghanistan in the 1980s.

“The United States has considerable experience in conducting UW,” the new manual observes. “The best known U.S. UW campaigns include OSS activities in Europe and the Pacific (1942-45), Philippines (1941-44), Guatemala (1950), Cuba (1960-61), North Vietnam (1964-72), South Vietnam (1967-72), Iraq (1991-96), Operation Enduring Freedom (2001-02), and Operation Iraqi Freedom (2002-03).”

The 248-page manual presents updated policy and doctrine governing unconventional warfare, and examines its “three main component disciplines”: special forces operations, psychological operations, and civil affairs operations.  Appendices include an historical survey of unconventional warfare as well as an extensive bibliography.

The unclassified manual has not been approved for public release.  But a copy was obtained by Secrecy News.  See “Army Special Operations Forces Unconventional Warfare,” U.S. Army Field Manual FM 3-05.130, September 30, 2008.

The Congressional Research Service, which does not make its publications directly available to the public, has recently issued or updated several noteworthy reports.  The following CRS reports obtained by Secrecy News have not previously been made available online (all pdf).

“The President’s Office of Science and Technology Policy: Issues for Congress,” November 10, 2008 (40 pages).

“Human Rights in China: Trends and Policy Implications,” October 31, 2008 (38 pages).

“Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping,” updated September 2, 2008 (164 pages).

“Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping,” updated September 2, 2008 (6 pages).

“North Korea: Terrorism List Removal?,” updated November 6, 2008 (36 pages).

“Statutory Interpretation: General Principles and Recent Trends,” updated August 31, 2008 (55 pages).

As the quality and availability of commercial satellite imagery continue to improve, the technology is adding a new dimension to public understanding of world events, while both enhancing and challenging national and global security.

“Last month, the most powerful commercial satellite in history sent its first pictures back to Earth, and another with similar capabilities is set for launch in mid-2009,” wrote Peter Eisler in USA Today last week.  “The imagery provided by those and other commercial satellites has transformed global security in fundamental ways, forcing even the most powerful nations to hide facilities and activities that are visible not only to rival nations, but even to their own citizens.”  See “Google Earth helps yet worries government,” November 7.

Iraqi insurgents, among other non-state actors, have also taken advantage of the new capabilities offered by satellite imagery.  A 2006 dispatch prepared by the DNI Open Source Center (first reported by USA Today) documented “the use of Google Earth for tactical planning of rocket attacks against U.S. military targets in Iraq.”  See “Iraqi Insurgency Group Utilizes Google Earth for Attack Planning,” July 19, 2006.

A newly disclosed GeoEye commercial satellite image of the site of a suspected Syrian nuclear facility at Al Kibar that was taken on November 23, 2007, some two months after it was bombed by Israel on September 6, 2007, shows rather rapid reconstruction of the destroyed facility.

“I’d say it confirms that the Syrians were in a really big hurry to get the site covered up,” said Allen Thomson, a former CIA analyst who has studied the case.  “The previously available DigitalGlobe picture of 24 October 2007 showed only a mound of dirt.  By a month later (the GeoEye pic), what appears to be a thick slab (you can see that it casts a shadow) was in place.  And January 11 imagery shows the new building up and the roof in place.”

The new image was released last week courtesy of GeoEye / Space Imaging Middle East.  It appears on page 1170 of an extensive open source compilation (large pdf) on the Israeli Strike in Syria prepared by Mr. Thomson.

Prof. James C. Warf, a Manhattan Project chemist, author and activist, died last week.

An early member of the Federation of American Scientists, Dr. Warf held patents on the separation of plutonium from high-level nuclear waste.  He taught chemistry at the University of Southern California for forty years, specializing in rare earth metals.  He also taught for ten years in Indonesia and Brunei and, his son recalled, he wrote the first textbooks on organic and inorganic chemistry in the Indonesian language.  He was a skilled amateur vintner and happily gave away samples of his product.

Dr. Warf also gave generously of his time and expertise to public interest groups concerned with nuclear weapons and nuclear reactor safety.  He was a fundamentally decent man.

He was remembered in “James C. Warf dies at 91; Manhattan Project chemist became peace activist, USC professor” by Claire Noland, Los Angeles Times, November 9.

“Pakistan — a key U.S. ally in global efforts to combat Islamist militancy — is in urgent need of an estimated $4 billion in capital to avoid defaulting on its sovereign debt.”  See “Pakistan’s Capital Crisis: Implications for U.S. Policy” (pdf), Congressional Research Service, November 7, 2008.

A new Pentagon manual (pdf) issued by Under Secretary of Defense (Intelligence) James R. Clapper prescribes the implementation of the Department of Defense operations security (OPSEC) program.  OPSEC is the process of identifying sensitive information that could be exposed to hostile detection in the course of military operations, and taking steps to protect such information.  See “DoD Operations Security (OPSEC) Program Manual,” DoD Manual 5205.02M, November 3, 2008.

The state of national preparedness for a bioterrorist incident was examined last year in a newly published congressional hearing, which includes supplementary questions and answers for the record.  See “Six Years After Anthrax: Are We Better Prepared to Respond to Bioterrorism?”, Senate Committee on Homeland Security and Governmental Affairs, October 23, 2007.

The possibilities for significant changes in government secrecy policy are starting to attract official attention as the presidential transition process begins.

“I know things are going to change,” one executive branch official with national security classification responsibility said this morning.  “The folks that are inbound have a keen appreciation for the kind of things that need to occur,” the official said.

He noted the role of John Podesta as leader of the transition team.  Mr. Podesta, now at the Center for American Progress (where he said he will return after the transition), is a former Clinton White House chief of staff.  He played an influential part in the development of the Clinton executive order on classification policy, which generally favored openness and dramatically increased declassification of historical records.

Mr. Podesta testified (pdf) on government secrecy policy before the Senate Judiciary Committee as recently as last September 16, where he presented his own agenda for secrecy reform.

His analysis was acute and his critique was eloquent.  But many of his recommendations pointed backwards, towards undoing what the Bush Administration has done, rather than to a qualitatively new information security policy.

So, for example, the very first “key recommendation” in Mr. Podesta’s testimony was that “The next president should rewrite [President Bush’s] Executive Order 13292 to reinstate the provisions of [President Clinton’s] Executive Order 12958 that establish a presumption against classification in cases of significant doubt.”

But restoring a “presumption against classification in cases of significant doubt” will not accomplish much since executive branch classification officers do not experience significant doubt.  There is no record of a single classification decision that was determined by the Clinton-era [and Carter-era] injunction not to classify in cases of doubt.  Therefore adding such language back to the executive order on classification is not imperative.

A better starting point would be a systematic review of all of the thousands of agency classification guides, geared towards eliminating obsolete or unnecessary classification instructions.  Classification guides are the secrecy system’s “software.”  Revising and updating them would be likely to pay immediate dividends in reduced classification.

Beyond that, there may be a once in a generation opportunity to fundamentally rethink the structure of the national security classification system, and to conceive of something altogether new, different, and better.  What that might be remains to be discovered and articulated.

There is an old story of a Russian soldier who saved the life of the czar and was told that as a reward he could have anything he wanted.  “Please change my commanding officer!” he begged.

In the coming weeks and months, it should be possible to do a lot better than that.

The National Reconnaissance Office has released a heavily redacted version of the Fiscal Year 2008 Congressional Budget Justification Book for the National Reconnaissance Program.  It provides a few intriguing glimpses of the intelligence agency in transition.

“Ten years ago, a user might be satisfied with an image or a signal intercept; now users demand fused, multidiscipline, multi-phenomenology information tailored to a specific location or area of interest,” wrote Donald M. Kerr, then-director of the NRO.

“The mission of the NRO remains the same– the research, development, acquisition, launch and operation of overhead reconnaissance systems and other missions as directed to solve intelligence problems,” the budget document stated. “However, the focus of the NRO and the way it executes the mission will change.  NRO’s priority for the future is to increase the value of the information its systems can deliver, chiefly through a variety of improvements in ground systems for rapid, adaptive, multisensor tasking, processing, exploitation, cross-cueing, and dissemination.”

Development, acquisition and operation of intelligence satellites are still the main business of the NRO.

“Careful stewardship of limited budget resources is increasingly critical as the NRO undertakes the daunting task of designing and building the next generation of satellite systems,” the document said.

“In general, IMINT [imagery intelligence] acquisition programs meet established performance requirements but are less successful in achieving cost and schedule goals,” the document acknowledged.

The NRO budget book was released in redacted (declassified) form in response to a Freedom of Information Act request from the Federation of American Scientists.

On 4 November 2008, Mozambique ratified the Comprehensive Nuclear Test Ban Treaty (CTBT) which bans all nuclear explosions on Earth, the CTBT Organization announced in a news release.

The Treaty has now been ratified by 146 nations, and signed by 180.

“To enter into force, however, the Treaty must be signed and ratified by the 44 States listed in Annex 2 to the Treaty,” the CTBT Organization explained.  “These States participated in the negotiations of the Treaty in 1996 and possessed nuclear power or research reactors at the time. Thirty-five of these States have ratified the Treaty, including … France, Russian Federation and the United Kingdom. The nine remaining States are China, Democratic People’s Republic of Korea, Egypt, India, Indonesia, Iran, Israel, Pakistan and the United States.”

Background on the Treaty from the Congressional Research Service is available here (pdf).

The national security classification system at the Department of Homeland Security is “broken,” and one of the top ten challenges facing the next Secretary of Homeland Security is to fix it, according to a recent report (pdf) from the Homeland Security Advisory Council.

“The federal security clearance process and classification system is broken and is a barrier (and often an excuse) for not sharing pertinent information with homeland security partners,” the report stated.  “The next Secretary should direct a concerted effort to resolve these clearance and classification issues.”

See “Top Ten Challenges Facing the Next Secretary of Homeland Security,” Homeland Security Advisory Council, September 11, 2008 (Key Challenge 3, at page 8).

The Homeland Security Advisory Council is chaired by William H. Webster, the former Director of Central Intelligence and FBI Director.  The Vice Chair is James R. Schlesinger, the former Secretary of Energy and Secretary of Defense.

Not everyone shares the Council’s dismal view of DHS classification and clearance policy.

“We try to write at the lowest classification level possible,” said Charles E. Allen, the DHS Under Secretary for Intelligence Analysis at a February 26, 2008 hearing before the House Homeland Security Committee.  “It is amazing what we can get down to ‘official use’,” he said. “I am rather amazed at what we have out there on a day-to-day basis.”

As for security clearances, Mr. Allen said, “I am quite a tiger at pushing clearances and getting people cleared.”

But others concur with the Council assessment.

“On the classification issue, there is just no question that the system is broken, fundamentally broken,” said Stephen E. Flynn of the Council on Foreign Relations at a May 15, 2008 hearing.  “The clearance process is completely overwhelmed. Because things get routinely overclassified, they can’t get to the people who need it.”

Unfortunately, the new Homeland Security Advisory Council report is not a significant addition to the literature on classification reform because it does not clearly articulate the problem, nor does it offer a specific solution.  “Fix the security clearance and classification process” is not in itself actionable advice.

One practical proposal for advancing classification reform in the next Administration was discussed in “Overcoming Overclassification,” Secrecy News, September 16, 2008.

When an Army aircraft is flying in a zone where detonation of a nuclear explosive is anticipated, one of the pilots would be well advised to wear a patch over one eye to protect against flash blindness from the nuclear burst.

“This practice allows vision in this eye in case blindness occurs to the unprotected eye and the other pilot.”

That peculiar bit of practical wisdom was provided in a 2007 U.S. Army manual for special operations forces (pdf) that are operating in nuclear and other WMD environments.

“The United States Special Operations Command combatant commander recognizes the probability of operating in a CBRN [chemical, biological, radiological and nuclear] environment exists; therefore, SOF [special operations forces] must specifically organize, train, and equip to be successful,” the manual explains.

“The term CBRN environment includes the deliberate, accidental employment, or threat of CBRN weapons and attacks with CBRN or toxic industrial materials (TIMs).”

A copy of the Army manual was obtained by Secrecy News.

See “Army Special Operations Forces Chemical, Biological, Radiological and Nuclear Operations,” Field Manual 3-05.132, August 2007.

Information that would reveal a violation of the law may be properly classified as long as it is not deliberately classified for the purpose of concealing the violation, a federal judge indicated this week.

That view, in a ruling (pdf) against the ACLU by DC District Judge Royce C. Lamberth, all but nullifies one of the principal limitations on national security secrecy contained in the executive order on classification policy.

In section 1.7 of executive order 12958, as amended, on “classification limitations and prohibitions,” the President directed that “In no case shall information be classified in order to … conceal violations of law….”

The ACLU cited this provision in a recent FOIA lawsuit to argue that transcripts of detainee tribunal hearings could not be properly classified under the executive order if they revealed evidence of prisoner abuse or other illegal conduct.  The court rejected that argument.

“Plaintiffs [ACLU] claim that some material was improperly classified because it may contain evidence that the government has violated the law,” Judge Lamberth wrote in an October 29 ruling.  “But plaintiffs misapprehend the Executive Order,” he wrote  (at page 6). “Executive Order 12958 prohibits classifying information ‘in order to … conceal violations of the law.’  However, there is no indication that these materials were classified ‘in order to’ conceal violations of the law….”

In other words, according to Judge Lambert, classifiers actually may conceal violations of the law as long as such concealment is not the specific purpose of the classification.

This narrow understanding of the executive order converts an important guarantee of the integrity of the classification process into an empty rhetorical gesture.

Under Judge Lamberth’s interpretation, the executive order provision limiting classification of violations of the law is not a limitation on the types of information that may be classified at all, but rather an unverifiable limitation on the classifier’s intention.  The provision is not concerned with the consequences of classification (i.e., the fact that criminal activity will be concealed from public knowledge) but instead focuses on the mental state of the classifier.  Did he or she specifically intend to conceal violations of the law?  If not, the classification may proceed, even if concealment is the inevitable result.  And since the classifier’s mental state is unknowable by others or may itself be concealed, the executive order’s limitation is deprived of significant meaning.

In the past, the limitation on classification of violations of the law was construed more broadly as a public assurance that classification would not be used to conceal criminal activity by the government.  (It was never understood to require publication of information about third-party crimes collected through classified intelligence or law enforcement methods.)

In 2004, the Federation of American Scientists cited the provision in a complaint (pdf) filed with the Information Security Oversight Office (ISOO), contending that the Taguba report (pdf, classified SECRET) that found evidence of criminal abuses at Abu Ghraib prison was improperly classified.  ISOO, led by then-director J. William Leonard, undertook an investigation into the propriety of the report’s classification and reported some noteworthy results (pdf).  Not only was the Taguba report released in declassified form, but the Pentagon undertook a Department-wide initiative to improve classification training, management and oversight. The “motivation” in the mind of the classifier never came up.

The Secretary of Defense himself also issued a Department-wide memorandum (pdf) to remind classifiers of their responsibility to exercise classification authority properly, and he specifically cited the prohibition on classifying criminal activity.  In his September 16, 2004 memo, Defense Secretary Donald Rumsfeld paraphrased the executive order limitation as follows:  “It is important to state that classifiers shall not… use classification to conceal violations of law….”

Interestingly, Secretary Rumsfeld did not use the phrase “in order to” which Judge Lamberth singled out to justify his interpretation of the order as a prohibition only on deliberate concealment.  The Rumsfeld paraphrase seems to reflect the prior understanding that classification should not be used “so as to” conceal violations of the law, regardless of the intentions of the classifier.

But if violations of the law may in fact be classified, then it is important for Americans to know that. If Judge Lamberth has made it easier for classifiers to conceal violations of the law, he also put the public on notice that this is how the national security classification system now functions.