A federal court of appeals this week affirmed that 21 photographs depicting abusive treatment of detainees by U.S. soldiers in Iraq and Afghanistan must be disclosed under the Freedom of Information Act.

“The public interest in disclosure of these photographs is strong,” the Second Circuit panel concluded in a September 22 ruling (pdf) in favor of the American Civil Liberties Union and other plaintiffs.

The ruling carefully analyzed and rejected several government arguments against disclosure.

Among other things, the government had contended that the photographs should be exempted from disclosure under FOIA exemption 7(F), which protects law enforcement records that “could reasonably be expected to endanger the life or physical safety of any individual.” Government attorneys said that release of the photographs (which were gathered in the course of an Army criminal investigation) could be used to incite violence against U.S. forces, coalition forces or civilians in Iraq or Afghanistan, and should therefore be withheld.

But even if potential incitement is a valid concern, the court said, it would not provide a basis for invoking FOIA exemption 7(F), which was intended to serve as “a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide political violence.” The exemption is not supposed to be “an all-purpose damper on global controversy.”

In short, the court ruled, the cited FOIA exemption cannot be used as “an ersatz classification system” to bar access to these unclassified photographs.

Nor can the government legitimately invoke the Third and Fourth Geneva Conventions that protect prisoners “against insults and public curiosity.”

“Both of these treaties were designed to prevent the abuse of prisoners,” the court explained. “Neither treaty is intended to curb those who seek information about prisoner abuse in an effort to help deter it.”

At the end of World War II, the court noted, the government itself “widely disseminated photographs of prisoners in Japanese and German prison and concentration camps. These photographs of emaciated prisoners, corpses, and remains of prisoners depicted detainees in states of powerlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable.”

In the same way, “Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners,” the court concluded. A copy of the 52 page ruling in ACLU et al v. Department of Defense et al is posted here.

“These photographs demonstrate that the abuse of prisoners held in U.S. custody abroad was not aberrational and not confined to Abu Ghraib, but the result of policies adopted by high-ranking officials,” said Amrit Singh, the ACLU attorney who argued the case.

“Their release is critical for bringing an end to the administration’s torture policies and for deterring further prisoner abuse,” Ms. Singh said.

In a rare judicial rebuff to the Office of Vice President Dick Cheney, a federal court issued a preliminary injunction (pdf) requiring the preservation of Vice Presidential records over the objections of Administration attorneys.

A lawsuit brought by Citizens for Ethics and Responsibility in Washington (CREW) along with historians and others alleged that the Office of Vice President had improperly limited the scope of records that it said would be preserved under the Presidential Records Act, and that records outside the scope of that definition were liable to be destroyed.

Judge Colleen Kollar-Kotelly agreed that there was no legal basis on the record for the Vice President’s position. On September 20, she ordered the government to preserve all official Vice Presidential records “without regard to any limiting definitions that Defendants may believe are appropriate.”

“It’s a pretty strong opinion,” said Anne Weismann, chief counsel for CREW. “They will be prevented from destroying anything. It basically means they have to preserve everything in the broadest possible interpretation of what the law requires — not their narrow interpretation.”

The use of thousands of private security contractors in Iraq represents a quantitatively new feature of U.S. military operations, but relatively little has been publicly disclosed about the contractual arrangements involved.

The war in Iraq “is apparently the first time that the United States has depended so extensively on contractors to provide security in a hostile environment,” according to a recently updated Congressional Research Service report (pdf).

But “the use of armed contractors raises several concerns, including transparency and accountability,” the CRS report said.

“The lack of public information on the terms of the contracts, including their costs and the standards governing hiring and performance, make evaluating their efficiency difficult. The apparent lack of a practical means to hold contractors accountable under U.S. law for abuses and other transgressions, and the possibility that they could be prosecuted by foreign courts, is also a source of concern,” the CRS report said.

Thanks to a Freedom of Information Act request filed by David Isenberg of United Press International, new information is now available on the U.S. State Department’s Worldwide Personal Protective Services (WPPS) contract, which provides security services throughout Iraq (as well as Afghanistan, Bosnia and Israel).

UPI obtained the WPPS contract specifications from the State Department and reported on the material in “Dogs of War: WPPS World” by David Isenberg, September 19. The newly disclosed contract material itself was posted by UPI here (pdf).

Extensive background information on the issue is available from the Congressional Research Service in “Private Security Contractors in Iraq: Background, Legal Status, and Other Issues,” updated August 25, 2008.

The structure, development and ramifications of growing U.S. Department of Defense foreign assistance activities are described in a major new report from the Congressional Research Service. See “The Department of Defense Role in Foreign Assistance: Background, Major Issues, and Options for Congress” (pdf), August 25, 2008.

Other noteworthy new reports from CRS that have not been made readily available to the public include the following (all pdf).

“Pay-for-Performance: The National Security Personnel System,” September 17, 2008.

“The Defense Base Act (DBA): The Federally Mandated Workers’ Compensation System for Overseas Government Contractors,” September 15, 2008.

“The North Korean Economy: Leverage and Policy Analysis,” updated August 26, 2008.

“Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments,” updated August 21, 2008.

“Periods of War,” updated August 19, 2008.

“The Manhattan Project, the Apollo Program, and Federal Energy Technology R&D Programs: A Comparative Analysis,” September 3, 2008.

Al Qaeda is “imploding,” a State Department counterterrorism official told the Associated Press last week, as a result of growing opposition in the Muslim world.

The implication that al Qaeda’s demise may be imminent is almost certainly incorrect. But what is true is that “a severe intellectual conflict has emerged” within the jihadist movement, said Kamal Habib, a former official of the Egyptian Jihad Organization (Al Arab, September 14).

Over the past year, al Qaeda has been publicly criticized by several of its own former supporters and ideological leaders, most notably Sayyid Imam Al-Sharif, also known as Dr. Fadl, who once saved the life of Usama bin Laden.

“Sayyid Imam is viewed as the greatest and most important authority for all of the jihadist salafist groups,” said Kamal Habib.

So when Sayyid Imam declared in a November 2007 book that killing non-combatant civilians, including Christians and Jews, is prohibited and that Al Qaeda’s conduct of jihad against the west was illegitimate, it produced an ideological earthquake within Islamist ranks.

“Fadl’s arguments undermined the entire intellectual framework of jihadist warfare,” wrote Lawrence Wright in an illuminating article in The New Yorker (June 2, 2008).

“Al Qaeda senior leaders in 2008 have devoted nearly half their airtime to defending the group’s legitimacy,” observed National Intelligence Officer Ted Gistaro in an August 12 speech (pdf). “This defensive tone … reflects concern over allegations by militant leaders and religious scholars that al Qaeda and its affiliates have violated the Islamic laws of war, particularly in Iraq and North Africa.”

One of the major al Qaeda responses came in a book by bin Laden deputy Ayman al Zawahiri called “The Exoneration: A Treatise Exonerating the Community of the Pen and the Sword from the Debilitating Accusation of Fatigue and Weakness” (pdf).

The book is an attempt to defend the legitimacy of al Qaeda’s tactics, including the killing of civilians, against the critiques of Sayyid Imam and other Islamic figures.

“Those who claim that killing innocent persons is absolutely forbidden are in a position of accusing the prophet, may God’s peace and prayers be upon him, his companions, and the generation following them that they were killers of innocent persons, as they see it,” wrote Zawahiri.

He noted that the prophet authorized the use of catapults, which do not discriminate between innocent and guilty, and he also killed all the males of a Jewish tribe “and made no distinction between one person and another.”

“The Exoneration,” which was published in January 2008, was translated a few months later by the DNI Open Source Center. The translation has not been approved for public release, but a copy was obtained by Secrecy News.

“Zawahiri’s strategic thinking and understanding of asymmetrical warfare and revolutionary violence is heavily indebted to vanguardism, a Leninist theory of revolution which posits that a small, revolutionary elite uses violence to rouse the people to fight against the government,” according to a contractor analysis (pdf) performed for the Department of Defense and obtained by Secrecy News.

“The potential problem with Zawahiri’s application of the theory of vanguardism… is that terrorism usually diminishes the support of both the government as well as the terrorist organization,” as appears to be the case today.

See “Zawahiri Tries to Clear Name, Explain Strategy,” Transnational Security Issues Report, prepared for the Department of Defense by the International Research Center, April 21, 2008.

“Is Al Qaeda going to dissipate as a result of the criticism from its former mentors and allies? Despite the recent internal criticism, probably not in the short term,” said analyst Peter Bergen at a July 30 congressional hearing.

“However, encoded in the DNA of apocalyptic jihadist groups like Al Qaeda are the seeds of their own long-term destruction: Their victims are often Muslim civilians; they don’t offer a positive vision of the future; they keep expanding their list of enemies, including any Muslim who doesn’t precisely share their world view; and they seem incapable of becoming politically successful movements because their ideology prevents them from making the real-world compromises that would allow them to engage in genuine politics,” Mr. Bergen said.

In 1997, acting on intelligence that a Hizballah cell was preparing to blow up the American embassy in Asuncion, Paraguay, a U.S. special forces team reportedly flew to the scene in several giant transport planes where it arrested the conspirators and prevented the attack.

If that episode happened as described (and it cannot readily be confirmed), it left no traces on the public record. It “is only one of many hidden battles” between Iran and the West, writes Israeli journalist Ronen Bergman in his new book “The Secret War with Iran” (Free Press, 2008).

The book, translated from the Hebrew and based on extensive interviews with Israeli intelligence officials and others, provides a wealth of insights, unfamiliar anecdotes, and telling observations regarding the three-decade-old confrontation with Iran. A few random examples:

Hizballah, acting as a proxy for Iran, temporarily refrained from taking American hostages between June 1985 and September 1986 in support of the secret arms sales deal between the U.S. and Iran that later became known as the Iran-contra affair.

Israel itself helped arm revolutionary Iran in a secret operation codenamed “Seashell” and described in the book. Earlier, Israel had also supplied advanced weaponry to the Shah, and “if Khomeini had not taken power as early as he did, he might have taken over a country armed with long-range missiles capable of carrying nuclear warheads… as well as a jet fighter that was supposed to be the best in the world.”

Out of a list of some 500 opposition figures targeted by Khomeini, nearly 200 of them were killed by Iranian assassins in Europe between 1980 and 1997.

Writing from an Israeli perspective, Mr. Bergman does not delve deeply into Iranian grievances or aspirations. But neither does he flatter the competence, judgment or morality of Israeli intelligence and military officials.

Categorized by the publisher as “political science,” the book is more of a work of intelligence history, with numerous strange tales of intelligence deeds and misdeeds, like the Israeli intelligence officer who was arrested for murdering his agent, and the Lebanese source who provided perfect warning of an impending attack only to be ignored in a turf battle between Israeli security agencies. The CIA is credited with “brilliantly” dismantling the Abu Nidal Organization, “sewing discord among its members by getting them to believe that they were being robbed by other operatives.”

Mr. Bergman, an investigative journalist who writes for Israel’s Yediot Aharonot, earned his doctorate under historian Christopher Andrew at Cambridge University. His dissertation explored Israeli intelligence operations in Africa.

“There is altogether too much discussion about the deliverables that OSINT [open source intelligence] can produce,” said Jennifer Sims, a former State Department intelligence official, at a DNI conference on open source intelligence last week.

Open source intelligence refers to intelligence that is derived from unclassified, legally accessible information sources.

But the fact that the underlying sources of OSINT are unclassified doesn’t mean the resulting intelligence can be disclosed, said Dr. Sims, who is now director of intelligence studies at Georgetown University.

“If it is providing decision advantage [to policymakers], then it is sensitive” and it should be withheld from disclosure, she said. “And decision advantage has nothing to do with the classification of the sources and methods. It has to do with the insights that the intelligence can deliver.”

Consequently, “OSINT needs to become a bit more closed-mouth about its deliverables,” she said.

By the same token, said Dr. Sims, if it’s not classified, then intelligence agencies should not be doing it.

“Democracies should sharply curtail classified intelligence organizations to the business that absolutely must be kept secret: gaining and keeping decision advantages in national security policy-making. Everything else should be unclassified and funded outside the intelligence establishment,” she wrote in an email message.

“Of course, if the processing of open sources gains you those insights, then ‘OSINT’ must be one of the jobs that intelligence institutions perform. But the measure of its success will always be the competitive edge it provides; and edges disappear if you give them away.”

The argument for greater open source intelligence secrecy suggests that U.S. intelligence agencies have been recklessly broadcasting OSINT products and thereby compromising the unique advantages that they provide. But most OSINT products are withheld from the public anyway.

And although some OSINT products have reportedly been included in the President’s Daily Brief, few of them seem to offer operationally significant insights that could be compromised by disclosure.

“Copyright, not classification, is the main barrier to disclosure of OSINT products,” said Kim A. Robson, deputy director of the DNI Open Source Center. But she added that “The better we get at OSINT, the more the need to classify it.”

Dr. Sims’ views were reported in “Analysis: Classifying open source intel?” by Shaun Waterman, United Press International, September 16.

A new recruitment video for the DNI Open Source Center presents the Center as it sees itself and would wish to be seen by potential recruits. A copy of the seven-minute video is posted here.

See also Open Source Intel Rocks — Sorry, It’s Classified by Noah Shachtman, WIRED Danger Room, September 17.

New legislation would require the Attorney General to report to Congress whenever the Department of Justice issues a legal opinion indicating that the executive branch is not bound by an existing legal statute.

The bill, introduced September 16 in the Senate by Senators Russ Feingold and Dianne Feinstein, responds to the Bush Administration’s use of secret opinions from the Justice Department Office of Legal Counsel (OLC) to circumvent binding legal restrictions on domestic surveillance, torture and other practices.

“The Bush Administration has relied heavily on secret OLC opinions in a broad range of matters involving core constitutional rights and civil liberties,” said Senator Feingold.

“The administration’s policies on interrogation of detainees were justified by OLC opinions that were withheld from Congress and the public for several years. The President’s warrantless wiretapping program was justified by OLC opinions that, to this day, have been seen only by a select few Members of Congress. And, when it was finally made public this year, the March 2003 memorandum on torture written by John Yoo was filled with references to other OLC memos that Congress and the public have never seen–on subjects ranging from the Government’s ability to detain U.S. citizens without congressional authorization to the Government’s ability to operate outside the Fourth Amendment in domestic military operations.”

“When OLC concludes that a statute passed by Congress does not bind the executive branch, Congress has a right to know that the executive branch is not operating under that statute, and to be apprised of the law under which the executive branch is operating. The bill I am introducing with Senator Feinstein codifies that right,” Senator Feingold said.

See the introduction of the “OLC Reporting Act of 2008,” September 16.

As the Justice Department prepares to issue new guidelines for FBI national security investigations, a more complete version of the current guidelines that were issued in 2003 has recently surfaced (pdf).

Although the redacted guidelines released in 2003 are still posted on the Justice Department web site (pdf), some of the redactions in that document were rescinded in August 2007 on the authority of Attorney General Alberto R. Gonzales. A copy of those less-censored guidelines was obtained this week by Greg Nojeim of the Center for Democracy and Technology.

See “The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection,” October 31, 2003, classification modified on August 2, 2007. For comparison, the previously released version is posted here (pdf).

Among the previously redacted language that has now been disclosed is the statement that “Preliminary investigations are authorized, generally speaking, when there is information or an allegation indicating that a threat to the national security may exist.” (Bottom of p. 3).

The newly disclosed version of the guidelines also addresses the legal standard for opening a full national security investigation; the investigative techniques that may be used in preliminary and full investigations; and more.

On September 12, Justice Department officials held a background briefing describing the contents of the proposed new guidelines that would replace the 2003 FBI national security investigative guidelines.

The American Civil Liberties Union said the proposed new guidelines went too far in lowering the threshold for initiating an investigation and threatened to infringe on protected first amendment activities.

The next President could achieve a systematic reduction in government secrecy by directing each agency that classifies information to conduct a detailed public review of its classification policies with the objective of reducing secrecy to the essential minimum and declassifying everything that does not meet the standard for classification.

Modeled on the Fundamental Classification Policy Review that was performed by the Department of Energy in 1995, this approach may be the best way to eliminate obsolete secrecy policies and to galvanize disclosure of improperly classified material.

I discussed this proposal in a statement (pdf) submitted to a Senate Judiciary Subcommittee hearing today on “Restoring the Rule of Law” chaired by Senator Russ Feingold.

Complaints about overclassification are about as old as the classification system itself. But policy responses that effectively mitigated the problem have been few and far between.

Numerous Commissions and advisory groups have urged various kinds of reforms over the years, but none of them has made a serious dent in classification policy. While President Clinton’s 1995 executive order 12958 triggered an avalanche of declassification of historical records, it left the scope of original classification activity unchanged. Statutory declassification programs like that established by the 1992 JFK Assassination Records Review Act relaxed controls on records concerning particular historical topics but did not translate into systematic classification reform.

By contrast, the DoE Fundamental Classification Policy Review permanently altered the Department of Energy’s classification policies in favor of greater openness.

The Review, undertaken as part of Energy Secretary Hazel O’Leary’s Openness Initiative, was performed by 50 technical and subject matter experts with the benefit of significant public input. Thousands of classification guides were reviewed and modified. Hundreds of specific changes in classification policy were recommended and, with some exceptions, were adopted in practice.

The 1995 Review had several essential features that help to explain its comparative success.

First, it was focused at the agency level where most classification decisions are actually made. Although a presidential executive order defines the basic terms of the classification system for the executive branch as a whole, its practical implementation is decided at the agency level. It is the agencies that create the classification guides that specify exactly what information is to be classified at what level. It is therefore the agencies that must adopt and execute changes to those classification decisions.

Second, the 1995 Review enlisted the Department of Energy bureaucracy itself as an agent of classification reform, and not merely its object. Given a directive to modernize and curtail classification activity, this rule-based organization effectively revised its own classification policies beyond what any outside critic could have hoped to achieve or had been able to achieve in the past.

Third, the Review actively solicited public input on needed classification reforms, and invited public review of the resulting recommendations prior to completion. The process sought to incorporate public perspectives and to embody the transparency that it was intended to serve. In so doing, the Review successfully fostered public confidence and support for its work.

In the next Administration, the same principles could be brought to bear on each one of the major producers of classified information, including the defense agencies, the intelligence agencies, the Justice Department and the State Department.

Although there is widespread recognition within the government today that classification activity has exceeded all reasonable bounds, the leadership needed to correct the problem has been lacking. But the next Administration could supply it, with a directive to each classifying agency to perform a top to bottom review of every classification policy and guide.

A review of this sort would not solve all classification problems. It would not prevent deliberate abuse of classification authority. It would not even resolve all good faith classification disputes, many of which involve an irreducible subjective element. It would also not address the growing controls on unclassified information.

But in a policy arena prone to rhetorical thunderbolts that turn out to have no real world consequences, the fundamental classification policy review described in my statement is a proven method for reducing the enormous classification overgrowth that has built up over decades.

Stating that “dozens of billions of dollars” had been secretly wasted on misconceived intelligence programs, Senator Christopher Bond (R-MO) and other members of the Senate Intelligence Committee yesterday called for creation of a new subcommittee on intelligence within the Senate Appropriations Committee that would exercise greater control on intelligence spending.

In the absence of a dedicated intelligence appropriations subcommittee that would include members of the Senate Intelligence Committee, the recommendations that emerge from the intelligence authorization process are frequently ignored, said Sen. Bond, to the detriment of intelligence policy.

“I am concerned about wasteful spending, not just in the billions of dollars, but in the dozens of billions of dollars, that the public does not know about because it is all classified,” Sen. Bond said yesterday on the Senate floor.

There are many instances in which the judgments of Senate Intelligence Committee overseers are wrongly circumvented by appropriators, he said.

For example, “After years of billions of dollars having been wasted by the intelligence community and the National Reconnaissance Office I proposed a much cheaper, multifunctional approach to sustain our [intelligence] satellite constellation,” Sen. Bond said. But earlier this week, Senate defense appropriators blocked the proposal, he said, in favor of the status quo.

Under the pending Senate proposal, the budget for the National Intelligence Program would be appropriated by the new subcommittee on intelligence, whose membership would overlap with the Senate Intelligence Committee.

“Those who have the time and mandate to study the issue extensively need to be the ones whose discernment is brought to bear on those matters,” Sen. Bond said, referring to the members and staff of the Intelligence Committee. He added that the proposed new arrangement would fulfill the spirit if not the letter of a key recommendation of the 9/11 Commission with regard to congressional oversight of intelligence.

The proposal (Senate Resolution 655), jointly sponsored with Senators Jay Rockefeller (D-WV) and Sheldon Whitehouse (D-RI), has been referred to the Senate Rules Committee.

A U.S. government compilation of interviews and other public statements issued by Usama bin Laden between 1994 and 2004 is now publicly available (pdf).

The texts were translated by the CIA’s Foreign Broadcast Information Service (which has since been succeeded by the Open Source Center).

The 289-page collection has not been approved for public release, but a copy was obtained by Secrecy News. See “Compilation of Usama Bin Laden Statements, 1994 – January 2004,” Foreign Broadcast Information Service, January 2004.