The House of Representatives yesterday passed the Overclassification Reduction Act, a bill that is intended to help reduce inappropriate classification of information in government.

The bill would require the National Archivist to develop regulations to help combat overclassification. The bill would mandate increased accountability for classification actions, with incentives for challenging improper classification and penalties for abuse of classification authority. Importantly, it would require agency inspectors general to perform periodic audits of classification activity to ensure compliance with classification standards.

While the bill represents a welcome expression of congressional interest in overclassification, its proposed solution does not seem carefully adapted to the problem.

“The problem of overclassification is government-wide and it demands a government-wide solution,” said Rep. Henry Waxman (D-CA), who introduced the bill along with Rep. Tom Davis (R-VA).

But that is unlikely to be true, because it presumes that overclassification is a uniform phenomenon across the government, which is not the case. Overclassification at the CIA is not the same as overclassification at the Pentagon or the State Department. Not only do these agencies have different institutional cultures, their classification policies revolve around different sets of security concerns, and they are implemented through distinct sets of procedures.

A government-wide regulation like the 2003 implementing directive issued by the Information Security Oversight Office can set important parameters for classification duration, classifier training, document marking, and so forth. But that directive has not been an effective vehicle for reversing or combating overclassification.

An alternate approach to the problem will be described in Secrecy News next week.

By almost every available measure, government secrecy continued to increase over the past year, according to report this week from OpenTheGovernment.org, a broad coalition of consumer and open government groups.

The report (pdf) describes the mostly unfavorable trends across a range of quantitative indicators, including classification and declassification activity, “black budget” spending, invention secrecy, Freedom of Information Act processing, and more.

“These trends indicate that citizens will have to wait even longer to find out what their government is doing,” said Patrice McDermott, director of OpenTheGovernment.org.

The new report is the fifth in an annual series issued by the coalition. See the 2008 Secrecy Report Card from OpenTheGovernment.org.

The State Department Historian last week released a new electronic volume of Foreign Relations of the United States (FRUS), the official documentary record of U.S. foreign policy, devoted to events in Eastern Europe from 1973-1976.

While every FRUS publication is of interest, the latest E-volume reinforced concerns about diminishing quality control in the venerable series.

“I was taken aback by how skimpy it is,” said Mark Kramer, director of the Harvard Project on Cold War Studies.

In principle, the major advantage of a softcopy-only volume is that it permits publication of a greatly expanded collection of records, unlimited by the production constraints of a hardcopy volume. But that advantage has gone unrealized in the new FRUS volume.

“It contains a total of 105 documents, compared to 238 in the 1969-1972 volume. It includes no sections at all about Hungary, Czechoslovakia, and Bulgaria, and even what’s there is pretty meager,” Mr. Kramer said.

“For example, the only item that really deals with the June 1976 protests in Radom, Poland is Document No. 57, a November 1976 CIA memorandum that’s long been available from the CIA’s very useful on-line reading room. The CIA memorandum focuses on the aftermath of the protests, rather than the protests themselves. Anyone hoping to know how U.S. officials in Warsaw or Washington, DC reacted to the crisis when it was actually occurring in June 1976 will have to look elsewhere. (I found a bunch of documents pertaining to this topic in the Ford presidential library, and I can’t fathom why not a single one was included in the FRUS volume.),” he noted in an email message.

“If this volume is an indication of what the FRUS editors regard as a thorough treatment of the topic, I worry about where things are heading,” Mr. Kramer said.

Though the Office of the Historian at the State Department is mad at me for saying so, there has been considerable upheaval and turmoil in that office over the last couple of years. Most recently, Dr. Edward C. Keefer, the respected general editor of FRUS, abruptly resigned.

It is unclear whether, how or when FRUS will be able to fulfill its mandatory obligation to produce “a thorough, accurate, and reliable documentary record of major United States foreign policy decisions and significant United States diplomatic activity” that is published “not more than 30 years after the events recorded.”

A newly disclosed U.S. Army memorandum (pdf) from 2001 describes the procedures that the Department of Defense must follow to invoke the state secrets privilege, from identifying the information at issue to preparing the required declarations to support the claim of privilege.

“These guidelines are intended to provide an instructive road-map for addressing the common procedural and substantive requirements associated with an invocation of the state secrets privilege,” the memorandum states.

See “Practical Guidelines for Invoking the State Secrets Privilege,” U.S. Army Memorandum for File, April 24, 2001.

The three page memorandum was obtained under the Freedom of Information Act by the James Madison Project. “The document offers some insight into a process that was otherwise completely secretive,” said attorney Mark S. Zaid, director of the Project.

Knowledge management — referring to the creation, organization, application and transfer of knowledge — is systematically explored in a new U.S. Army Field Manual (pdf).

Military knowledge management has been going on “implicitly since military operations began,” the Manual notes. But by making its practices explicit, the Manual aims to increase the awareness and efficiency of knowledge management and to increase operational advantage.

“The primary purpose of knowledge management is to help commanders and staffs make informed, timely decisions.” Towards that end the Manual provides a detailed schematic account of the creation and transmission of knowledge in military affairs.

See “Knowledge Management Section,” U.S. Army Field Manual 6-01.1, August 29, 2008.

The increasing demands placed on U.S. special operations forces have created new challenges for training and retention that were described at a congressional hearing last year (pdf).

“Recruiting since 9/11 has not been a problem for Special Operations Forces,” said Gen. Bryan D. Brown, commander of U.S. Special Operations Command. “Every seat in every school is full to start the course.”

But only “about 23 percent graduate from the course,” said Gen. Brown. “They fail the course for all kinds of reasons, one of them being their inability to pass the [foreign] language portion.”

“And so if you can hit a target at 600 meters, that is great, but unless you can speak a language that we ask you to learn, you are still not going to graduate and wear a Special Forces tab.”

Background on the status of Army, Air Force, Navy and Marine Corps special operations forces was presented in the January 2007 hearing volume that was published last month along with detailed answers to questions for the record. See “Current Manning, Equipping and Readiness Challenges Facing Special Operations Forces,” hearing before the House Armed Services Committee, January 31, 2007.

Noteworthy publications from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“India-U.S. Relations,” updated August 12, 2008.

“Pakistan-U.S. Relations,” updated August 25, 2008.

“Venezuela: Political Conditions and U.S. Policy,” updated August 1, 2008.

“Latin America: Terrorism Issues,” updated August 27, 2008.

“Iraq and Al Qaeda,” updated August 15, 2008.

“Congressional Influence on Rulemaking and Regulation Through Appropriations Restrictions,” updated August 5, 2008.

“Congressional Intervention in the Administrative Process: Legal and Ethical Considerations,” September 25, 2003.

“Privacy and Civil Liberties Oversight Board: New Independent Agency Status,” updated July 21, 2008.

On August 19, President Bush announced the nomination of James X. Dempsey, the vice president of the Center for Democracy and Technology, a leading civil liberties organization, to the Privacy and Civil Liberties Oversight Board.

“Secrecy,” a well-reviewed documentary on national security secrecy, begins a theatrical run this month in selected theaters around the country.

By identifying secrecy as a problem, filmmakers Peter Galison and Robb Moss implicitly adopt a critical stance towards their subject matter. But they also make a determined effort to present articulate defenders of secrecy policy alongside the critics (among whom I play a minor role). And they do not impose an artificial resolution on the disagreements that are expressed, as there is none in reality.

Above all, Secrecy does a courtesy to the participants and to the audience by taking the subject seriously. Also, it’s beautifully made. A schedule of upcoming screenings along with other background information can be found on the film website.

A detailed new portrait of China’s nuclear weapons program is beginning to emerge into the public domain following years of pre-publication conflict between author Danny B. Stillman and the Central Intelligence Agency.

Mr. Stillman, a former Los Alamos intelligence officer, was able to learn more about China’s nuclear weapons infrastructure than any other American, particularly since the Chinese, for their own reasons, welcomed his attention. Over the course of numerous visits in the 1990s, he was able to inspect secret nuclear facilities that had been completely off limits to foreigners.

But when he proposed to publish his findings, the Central Intelligence Agency stepped in to block publication. Through the prepublication review process, the CIA objected to approximately 15% of Stillman’s manuscript, which it said contained classified information. A court later affirmed that view. (“CIA Blocks Book on Chinese Nuclear Weapons,” Secrecy News, April 4, 2007). Now a redacted version of the manuscript is scheduled for publication early next year.

A preview of some of the book’s findings with an overview of Stillman’s interactions with Chinese nuclear weapons scientists appears in the current issue of Physics Today. See “The Chinese Nuclear Tests, 1964-1996” by Thomas C. Reed, Physics Today, September 2008.

Some specialists dispute certain assertions that appear in the article, including a surprising claim that China performed non-explosive nuclear tests for France in the 1990s. See “Report Says China Offered Widespread Help on Nukes” by Dan Vergano, USA Today, August 29, 2008.

A new report from the National Research Council probes deeply into the positive and occasionally negative effects of public participation on the environmental policymaking process.

It is practically an article of faith in democratic societies that openness and public participation are presumptively good, but that doesn’t mean it’s true. On closer inspection, however, including empirical studies of participatory processes, the new NRC report was able to reach some encouraging conclusions.

“When done well, public participation improves the quality and legitimacy of a decision and builds the capacity of all involved to engage in the policy process. It also can enhance trust and understanding among parties,” the report said.

On the other hand, “public participation, if not done well, may not provide any of these benefits — in some circumstances, participation has done more harm than good.”

The 250 page report, including a valuable 50 page bibliography, elucidates some of the conditions for successful participation and those that are likely to result in failure.

“Some participatory processes have functioned as a political tactic to divert the energy of the public away from engaging in dissent on important differences and into activities that are considered safer by an agency…. This use of public participation is counterproductive in the long run,” the report said.

Instead, agencies inviting public participation must have a “commitment to use the process to inform their actions.”

Also, “The power to define the questions to be addressed and to shape the public participation approach — how it is used and by whom — is critical.”

With certain adjustments, the report’s conclusions regarding environmental policy may also be applicable to security policy and other areas of government-public interaction.

See “Public Participation in Environmental Assessment and Decision Making” by Thomas Dietz and Paul C. Stern, editors, National Academies Press, 2008.

Noteworthy new and updated reports from the Congressional Research Service obtained by Secrecy News that have not been made readily available to the public include the following (all pdf).

“U.S. Strategic Nuclear Forces: Background, Developments, and Issues,” updated August 5, 2008.

“Russia-Georgia Conflict in South Ossetia: Context and Implications for U.S. Interests,” updated August 29, 2008.

“Defense: FY2009 Authorization and Appropriations,” updated August 1, 2008.

“Joint Light Tactical Vehicle (JLTV): Background and Issues for Congress,” August 28, 2008.

“Distribution of Homeland Security Grants in FY2007 and P.L. 110-53, Implementing Recommendations of the 9/11 Commission Act,” updated January 28, 2008.

“Globalization, Worker Insecurity, and Policy Approaches,” updated July 31, 2008.

In an unusual maneuver designed to evade a threat of government sanction, a key defense witness in the trial of two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with mishandling classified information last week moved to quash (pdf) a subpoena summoning him to testify at their upcoming trial.

J. William Leonard, the former director of the Information Security Oversight Office, indicated he was prepared to testify that the classified information at issue did not meet the standards for national security classification. If so, the defendants could not have violated the law by receiving and transmitting the information without authorization. Not only would they not be guilty, there would have been no crime.

But prosecutors objected to Mr. Leonard’s testimony, arguing that he should not be permitted to appear since he briefly consulted with prosecutors about the case while he was still a government employee in 2006. In a March 31 motion (pdf), they even suggested that he could be liable to a year in jail if he testified for the defense.

In the normal course of events, government officials are sometimes threatened with sanctions if they refuse to testify in a judicial or congressional proceeding. But in the topsy-turvy world of the AIPAC case, Mr. Leonard is threatened with sanctions if he does testify.

To forestall that eventuality, Mr. Leonard was formally subpoenaed (pdf) by the defense on July 25. His attorney, Mark S. Zaid, then moved to quash the subpoena on August 28, in the expectation that the court would issue an order compelling Mr. Leonard to testify. Such an order would serve to shield him against the threatened sanctions from the prosecution.

“In filing this Motion to Quash, Mr. Leonard seeks either a ruling from the Court that there is no impediment to his testifying or, alternatively, a Court Order requiring that he testify,” wrote Mr. Zaid, who frequently litigates national security and classification-related cases. “Without one or the other action, Mr. Leonard will be forced to reconsider whether he can testify for the Defendants.”

The August 28 motion to quash is posted here. Selected other case files from the controversial proceeding are available here.