At a House Judiciary Subcommittee hearing today, witnesses discussed the feasibility and advisability of legislating reforms to the state secrets privilege.

The state secrets privilege has been used by the executive branch to block discovery in civil litigation when the government believes that there is an unacceptable risk of disclosure of sensitive national security secrets. But on several occasions, the mere assertion of the privilege has led to termination of the lawsuit. It has effectively short-circuited the adjudication of claims against the government involving domestic surveillance, unlawful detention, and torture.

“I do believe thoughtful legislation is needed to insure that maximum and uniform efforts are made to strike the right balance between national security needs and fair judicial proceedings,” said the Hon. Patricia M. Wald, the retired chief judge of the DC Circuit Court of Appeals in testimony today.

Legislative intervention was also endorsed by H. Thomas Wells, Jr. (pdf), the president-elect of the American Bar Association, and by Kevin Bankston (pdf) of the Electronic Frontier Foundation, whose lawsuit on warrantless domestic surveillance has prompted state secrets claims by the government.

Patrick Philbin, a former deputy attorney general, argued (pdf) that any legislative proposal to permit judges to overrule the executive branch regarding the sensitivity of particular information “would be a mistake.”

The prepared statements from today’s hearing are posted here.

Last week, Senators Kennedy, Specter and Leahy introduced “The State Secrets Protection Act.” The text of that legislation is now available here.

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

“China’s Currency: Economic Issues and Options for U.S. Trade Policy,” updated January 9, 2008.

“Afghanistan: Post-War Governance, Security, and U.S. Policy,” updated January 14, 2008.

“Future of the Balkans and U.S. Policy Concerns,” updated January 10, 2008.

“Venezuela: Political Conditions and U.S. Policy,” updated January 11, 2008.

“Pakistan-U.S. Relations,” updated January 11, 2008.

“North Korea: Terrorism List Removal?,” updated January 14, 2008.

“Long-Range Ballistic Missile Defense in Europe,” updated January 9, 2008.

“Freedom of Information Act Amendments: 110th Congress,” updated January 7, 2008.

The Senate Intelligence Committee proposal to amend the Foreign Intelligence Surveillance Act (FISA), which is under consideration on the Senate floor today, “does not contain adequate protections to guard against the kind of Executive abuse that occurred with the [Terrorist Surveillance Program] and related programs,” according to a new Senate Judiciary Committee report.

“Congress is prepared to grant the Administration the authority it needs to surveil targets overseas. But the unilateral decision by the Executive in the years following 9/11 to surveil Americans’ communications contrary to FISA illustrates the need for Congress to provide clear statutory protections for surveillance that impacts Americans’ privacy rights.”

“Additional protections are of critical importance,” the Senate Judiciary Committee report said. “The rules governing electronic surveillance affect every American and remain the only buffer between the freedom of Americans to make private communications and the ability of the Government to listen in on those communications.”

“In the Committee’s view, the improvements contained in the Senate Intelligence bill do not go far enough in ensuring that Americans’ privacy rights are safeguarded. Additional protections can be added without interfering with the flexibility the Government needs to conduct overseas surveillance.”

See “Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007,” Senate Judiciary Committee, January 22.

The U.S. Air Force last week issued revised procedures (pdf) for securely maintaining and transporting nuclear weapons.

The move follows an incident last August in which crewmen at Minot Air Force Base in North Dakota mistook missiles armed with nuclear weapons for unarmed missiles and flew them across the country without authorization.

Though the Minot AFB event is not mentioned in the new procedures, the origins of that mishap are implicitly addressed: “Do not co-mingle nuclear and non-nuclear munitions/missiles … in the same storage structure, cell, or WS3 [weapons storage and security system].”

“Nuclear weapons require special consideration because of their political and military importance, destructive power, cost, and potential consequences of an accident or unauthorized act,” the Air Force Instruction observes.

The new policy prescribes detailed auditing and tracking procedures to promote accountability of nuclear weapons, along with weapons maintenance, personnel certification, and secure transport.

The document was approved for public release.

See “Nuclear Weapons Maintenance Procedures,” Air Force Instruction 21-204, 17 January 2008.:

A rising tide of criticism of the use of the state secrets privilege to derail litigation against the government has yielded new legislation introduced in the Senate to define the privilege and to limit its use.

The state secrets privilege has been invoked with growing frequency to deflect claims of unlawful domestic surveillance, detention, and torture as well as other more mundane complaints, on grounds that adjudicating them would cause unacceptable damage to national security.

But a new bill sponsored by Senators Edward M. Kennedy (D-MA) and Arlen Specter (R-PA) would provide a mechanism for protecting legitimate secrets while also permitting litigation to proceed.

“The [proposed] Act ensures that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act,” according to a description issued by Senator Kennedy’s office. “For example, a court may limit a party’s access to hearings, court filings, and affidavits, or require counsel to have appropriate security clearances.”

And crucially, “The Act clarifies that the courts, not the executive branch, must review the evidence and determine whether information is covered by the state secrets privilege.”

Senator Kennedy introduced the State Secrets Protection Act (S. 2533) on January 22.

The personal story behind the controversial 1953 Supreme Court ruling that established the state secrets privilege is featured, along with other aspects of government secrecy, in the new film “Secrecy” by Peter Galison and Robb Moss.

The film premiered this past week at the Sundance Film Festival, where it was reportedly well-received. “The question of how much we should rely on methods inconsistent with our values is intelligently and elegantly handled,” wrote Los Angeles Times film reviewer Kenneth Turan.

There is a “great need” for legislation that will specifically prohibit and punish unauthorized disclosures of communication intelligence (COMINT), the U.S. military argued in a newly-released 1944 report (pdf). Such a law was in fact enacted in 1950.

“Unauthorized disclosures… have jeopardized, on several occasions, the results of many years of arduous research and have endangered the safety of our armed forces,” according to the report.

The document provides “an historical resume of some of the famous publicity leaks of the past generation,” including an account of Herbert Yardley’s “Black Chamber” and a chapter on the “effects of publicity leaks on U.S. cryptanalytical activities,” in order “to demonstrate the need for greater security precautions.”

“It is recognized that a satisfactory solution of this problem will probably encroach upon the freedom of the press and freedom of speech,” the authors write in the late World War II-era report. “The issues at stake are so important, however, that some action must be taken in the interest of national safety.”

The 1944 report was released by the National Security Agency in response to a request from researcher Michael Ravnitzky, who provided a copy to Secrecy News.

See “The Need for New Legislation Against Unauthorized Disclosures of Communication Intelligence Activities,” report to the U.S. Army-Naval Communication Intelligence Coordinating Committee, Special Report No. 1, June 9, 1944.

In 1950, Congress enacted legislation to protect communications intelligence from unauthorized disclosure (18 U.S.C. 798). That statute embodied several of the specific recommendations formulated in the 1944 report.

Tsien Hsue-shen, the 96-year-old architect of China’s ballistic missile program, was once a promising student of aeronautics in the United States, a protégé of Theodore von Kármán, and then a leading expert in the field, until he came under suspicion of espionage and was deported in September 1955.

According to a declassified 1998 Defense Intelligence Agency briefing, Tsien had “worked on [the] Titan [missile] program in [the] 1950s,” and his immigration to China constituted an unauthorized transfer of Titan technology to that communist country.

But it turns out that the DIA claim cannot be true, because the first contract for the Titan development program was not let until October 1955, after Tsien (also known as Qian Xuesen) had departed the United States.

“Unless Tsien possessed the secret of time travel, there is no way that he could have worked on the Titan ICBM before the program even started,” wrote historian and space policy expert Dwayne Day in an incisive account in The Space Review.

Mr. Day discusses the Tsien case, the 1999 Cox Committee on Chinese espionage that received the classified DIA briefing on Tsien and endorsed it uncritically, as well as the work of the late historian Iris Chang, Tsien’s biographer. See “A Dragon in Winter” by Dwayne A. Day, The Space Review, January 14.

In a follow-on piece this week, Mr. Day reports further on the 1998 Defense Intelligence Agency briefing regarding Tsien (pdf), which was declassified in response to a request from the Federation of American Scientists. See “Is a Secret a Lie if it Just Isn’t True?”, January 21.

Former CIA analyst Allen Thomson told Secrecy News that he recalled receiving another DIA briefing a decade ago in which it was asserted that Tsien had worked on Titan penetration aids.

“I have the impression that Tsien just became a convenient boogeyman and nobody checked up on the facts, or much cared about them,” Mr. Thomson said.

Tsien was named “2007 person of the year” by Aviation Week and Space Technology magazine (01/06/08) as a way of acknowledging China’s recent advances in space.

But at a celebration in Beijing in honor of his 96th birthday on December 11, his secretary Tu Yuanji said that Tsien had “stayed at home” most of the past year, “reading something every day while leading a peaceful life.” (Xinhua, 12/10/07).

“The CIA requires all current and former Agency employees and contractors, and others who are obligated by CIA secrecy agreement, to submit for prepublication review to the CIA’s Publications Review Board (PRB) all intelligence-related materials intended for publication or public dissemination,” according to a 2007 regulation (pdf) on the subject.

The scope of the requirement, according to CIA, is expansive. It “includes, but is not limited to, works of fiction; books; newspaper columns; academic journal articles; magazine articles;… letters to the editor;… scripts; screenplays; internet blogs, emails, or other writings;” and so forth.

A redacted version of the latest version of the CIA regulation was released in response to a Freedom of Information Act lawsuit filed by the James Madison Project, a non-profit advocacy organization. The Project’s director, attorney Mark S. Zaid, frequently litigates pre-publication review disputes against the CIA.

The text of the regulation, “Agency Prepublication Review of Certain Material Prepared for Public Dissemination,” 30 May 2007, is here.

Related background on CIA prepublication review policy, including a (redacted) handbook for agency reviewers (pdf), can be found on this page.

Last week, Malaysia ratified the Comprehensive Test Ban Treaty (CTBT), bringing the total number of Treaty ratifications to 143, according to a CTBT Organization news release.

Among Southeast Asian nations, “Cambodia, the Lao People’s Democratic Republic, Malaysia, the Philippines, Singapore and Vietnam have now ratified the CTBT, whereas Brunei Darussalam, Indonesia, Myanmar and Thailand have yet to ratify it.”

To enter into force, the Treaty must be ratified by ten additional states with nuclear programs, including the United States, North Korea, Israel, China, Pakistan and Iran.

If and when that happens, the technical capability to verify compliance with the Treaty will be well in hand, according to a recent statement from the American Geophysical Union.

“When implemented, the American Geophysical Union and the Seismological Society of America are confident that the combined worldwide monitoring resources will meet the verification goals of the CTBT,” the AGU reaffirmed last month.

In a small step that could nevertheless have far-reaching consequences for government information policy, the Department of Defense is preparing to eliminate various markings such as “For Official Use Only” and “Limited Distribution” that regulate disclosure of unclassified documents and will replace them with a new standardized marking.

The DoD move (pdf) anticipates near-term Presidential approval of a new government-wide policy on so-called Sensitive But Unclassified information that would streamline and rationalize controls on unclassified information. It could also potentially lead to the public release of a vast amount of currently controlled information.

President Bush called for development of the new policy in a December 16, 2005 memorandum intended to promote information sharing.

In response to the Presidential memorandum, officials soon discovered that “there are at least 107 unique markings” for unclassified information “and more than 131 different labeling or handling processes,” according to testimony (pdf) last April by Amb. Thomas E. McNamara, Program Manager of the ODNI Information Sharing Environment.

In some cases the very same markings are used to refer to different control systems, Mr. McNamara explained. Thus, SSI usually means “Sensitive Security Information,” but sometimes it stands for “Source Selection Information.” Likewise, some agencies use ECI to designate “Export Controlled Information,” while others use it to mean “Enforcement Confidential Information,” each of which entail “very different safeguarding and dissemination controls.”

In short, the handling of unclassified information within government has become chaotic and counterproductive.

More than two years after the President’s directive, a new policy that replaces many of the existing information control categories with a new “Controlled Unclassified Information” (CUI) category is said to be close to final approval.

Last month, the Department of Defense established a CUI Task Force to oversee implementation of the impending new policy, according to a memo (pdf) from the DoD Deputy Chief Information Officer.

“The new policy will replace all of the markings currently used for CUI within DoD (e.g. FOUO, FOUO-LES, LIMITED DISTRIBUTION) with [the] new standardized marking,” the memo stated. “We anticipate White House approval of the new policy shortly.”

The DoD memo was first reported this week by Sebastian Sprenger in InsideDefense.com.

See “Transition to New Markings for Controlled Unclassified Information (CUI),” memorandum from David M. Wennergren, December 28, 2007.

At a minimum, the new policy should facilitate information sharing within the government. But it might possibly do much more than that.

While many existing control categories are expected to merely be consolidated and replaced by the new, uniform CUI marking, other controls may be eliminated outright, according to Amb. McNamara, the Information Sharing Environment Program Manager.

“The great majority of the information which is now controlled can be put in a simple unclassified, uncontrolled category, it seems to me,” he told Congress in 2006 (pdf).

If controls on “the great majority” of unclassified but restricted information are truly going to be removed, that would imply an unprecedented avalanche of disclosure of controlled government records. The recent DoD memo contains no hint of such an outcome.

Yet “that is the system that we are trying to put together,” Amb. McNamara said, “a rational limited set of categories that… can be applied to controllable information, but leave most of it as fully unclassified.”

See “Building the Information Sharing Environment,” hearing before the House Homeland Security Committee, May 10, 2006 (at p. 17).

The United States intervened to block South Korea from developing nuclear weapons in the 1970s, according to newly declassified Korean government documents.

South Korea was seeking to acquire nuclear reactors from Canada and nuclear reprocessing technology from France in support of a weapons program, but U.S. pressure led to cancellation of the latter purchase.

See “Park Sought to Develop Nuclear Weapons,” Korea Times, January 15.

Meanwhile, the island nation of Barbados this week ratified the Comprehensive Nuclear Test Ban. A total of 142 countries have now ratified the treaty, which prohibits all nuclear explosions.

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

“The Gulf Security Dialogue and Related Arms Sale Proposals,” January 14, 2008.

“Foreign Ownership of U.S. Financial Assets: Implications of a Withdrawal,” January 14, 2008.

“Laos: Background and U.S. Relations,” January 7, 2008.

“Pakistan-U.S. Relations,” updated January 11, 2008.