Attorneys at the Justice Department Office of Legal Counsel violated the executive order on classification and damaged oversight of the secrecy system last year when they refused to process a request from the Information Security Oversight Office for an interpretation of the order, according to a complaint filed yesterday (pdf) by the Federation of American Scientists Project on Government Secrecy.

Last January, J.William Leonard, the Director of the Information Security Oversight Office (ISOO), wrote to the Attorney General seeking an opinion on the applicability of classification oversight requirements to the Office of the Vice President after that Office ceased to cooperate with ISOO oversight.

But in July, Steven G. Bradbury of the Office of Legal Counsel wrote back that the Justice Department “will not be providing an opinion addressing this question.”

By refusing to provide an opinion, Mr. Bradbury appears to have violated the President’s executive order, which requires that “the Attorney General… shall render an interpretation” of any disputed matter when requested by ISOO. A response is not optional, and yet no response was provided.

Yesterday, FAS asked the Justice Department Office of Professional Responsibility to investigate the Office of Legal Counsel’s handling of the dispute between ISOO and the Office of the Vice President (OVP).

In his July letter (pdf), Mr. Bradbury explained his failure to respond by claiming that the dispute had been resolved. But Mr. Leonard said last week that “from my point of view, the matter is not closed.”

Mr. Leonard, who retired this month, told Newsweek last week that the unresolved conflict with the Office of the Vice President was a “contributing” factor in his decision to leave government.

By refusing to process the ISOO request and to adjudicate the conflict with the OVP, as required by the executive order, the Justice Department deprived ISOO of one of its Presidentially-authorized tools for conducting oversight of the classification system.

And by yielding to the OVP’s extreme view, the Justice Department has introduced new deformities in the classification system. So, for example, the classification activities of the Vice President’s National Security Advisor are now said to be exempt from ISOO oversight even though the classification activities of the President’s National Security Advisor must be reported to ISOO.

This incoherent new policy is attributable to professional misconduct by Justice Department attorneys, the FAS complaint argues, because they were obligated to respond to the ISOO request and refused to do so.

The Director of National Intelligence has issued a new performance management policy (pdf) that will require regular evaluations of the performance of all U.S. intelligence community employees.

The new policy will include “the evaluation of IC employees on their results (in other words, ‘what’ they achieve)” as well as “the manner in which they achieved those results (in other words, ‘how’ they were accomplished).”

There will be “a clear linkage between an employee’s performance and compensation, rewards, promotion opportunities, and retention considerations. High performance will be recognized and reinforced. Substandard performance will be addressed and corrected. Employees who cannot or will not improve their performance to meet required expectations will be subject to appropriate action,” the DNI directive states.

See “Performance Management System Requirements for the Intelligence Community Civilian Workforce,” Intelligence Community Directive 651, November 28, 2007.

Updated below

On December 31 President Bush signed into law the “Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007,” which amends the Freedom of Information Act (FOIA).

The new law makes several constructive procedural changes in the FOIA to encourage faster agency response times, to enable requesters to track the status of their requests, to expand the basis for fee waivers, and more.

One thing it does not do, however, is alter the criteria for secrecy and disclosure. Whatever records that a government agency was legally entitled to withhold before enactment of the “OPEN Government Act” can still be withheld now that the President has signed it.

Some reporters and editorial writers, perhaps enchanted by the name of the new law, mistakenly assumed that it accomplishes much more than that.

“The law … restores a presumption of a standard that orders government agencies to release information on request unless there is a finding that disclosure could do harm,” according to a January 1 Associated Press account that appeared in the Washington Post, the New York Times, USA Today, the Wall Street Journal and elsewhere.

Further, the widely-published AP account continued, “The legislation is aimed at reversing an order by former Attorney General John Ashcroft after the 9/11 attacks in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.”

But that is incorrect.

Although the original House version of the OPEN Government Act did include a provision that would have repealed the Ashcroft policy and established a “presumption of openness,” that provision was removed from the bill prior to passage.

Thus, Rep. Henry Waxman (D-CA) noted with regret on the House floor on December 18 that the final legislation “does not include a provision which I thought was a key one establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret.”

From an opposing perspective, Rep. Tom Davis (R-VA) expressed his approval that “the provision repealing the so-called Ashcroft memorandum was eliminated…. The Ashcroft memorandum established that the administration would defend agency decisions to withhold records under a FOIA exemption if the decision was supported by a sound legal basis, replacing the pre-9/11 Janet Reno standard of always releasing information absent foreseeable harm.”

“I think preservation of the Ashcroft policy is the right policy to adopt in the current environment,” Rep. Davis said.

Right or not, the Ashcroft FOIA policy remains the policy of the Bush Administration even after enactment of “The OPEN Government Act.”

Update:On January 4, the Associated Press issued the following clarification:

BC-NA-GEN–US-Bush-Freedom of Information,CLARIFICATION/245
Eds: Subscribers who used BC-NA-GEN–US-Bush-Freedom of Information of Dec. 31 may wish to use the following, which explains that the bill does not explicitly reverse former Attorney General John Ashcroft’s order to lean against disclosure when uncertain about any impact on national security.
Clarification: Bush-Freedom of Information

CRAWFORD, Texas (AP) _ In a Dec. 31 story, The Associated Press reported that Freedom of Information legislation signed by President George W. Bush aims to reverse an order by former Attorney General John Ashcroft instructing agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.

The story should have specified that the bill does not explicitly reverse Ashcroft’s order in the wake of 9/11. However, sponsors say the legislation’s intent is to require agencies to provide stronger justification when withholding information under the Freedom of Information Act.

The new law cites Supreme Court decisions for a “strong presumption in favor of disclosure” and states that “disclosure, not secrecy, is the dominant objective of the act.”

“No matter who is the next president, he will have to run a government that is more open than in the past,” Sen. Patrick Leahy, a Democrat from Vermont, said when the bill passed the Senate.

Under the new law, agencies now must specify national security, law enforcement or privacy exemptions in denying information, but they don’t have to provide a finding that those interests would be harmed by disclosure.

A House draft version of the bill explicitly reversed Ashcroft’s order, but that language was stripped out at the insistence of the administration and Republican lawmakers.

The National Security Agency published a notice today describing its Power Upgrades Project, which is intended to meet the Agency’s growing demand for electrical power and to replace aging electrical infrastructure.

“The proposed utility upgrades would allow for 100 percent self-contained redundancy, should off-site power sources fail,” according to the January 2 Federal Register notice.

“The demand for electricity to operate its expanding intelligence systems has left the high-tech eavesdropping agency on the verge of exceeding its power supply,” reported Siobhan Gorman in the Baltimore Sun on August 6, 2006.

A good map can tell you where you are and show you how to get to where you want to go. What could be more important?

A recent U.S. Army Field Manual (large pdf) explains the rudiments of map reading. But distribution of the manual is restricted, and it has not been approved for public release.

To begin at the beginning: “A map is a graphic representation of a portion of the earth’s surface drawn to scale, as seen from above. It uses colors, symbols, and labels to represent features found on the ground.”

“All [military] operations require a supply of maps; however, the finest maps available are worthless unless the map user knows how to read them.”

A copy of the manual was obtained by Secrecy News.

See “Map Reading and Land Navigation,” Field Manual FM 3-25.26, January 2005 (change 1, August 30, 2006) (288 pages, 25 MB PDF file).

Establishing civilian control of intelligence and security services is a challenge and a crucial milestone for any aspiring democracy. Among other post-Soviet countries of Eastern Europe, Ukraine has made some remarkable strides in this direction.

“As Ukraine continues the process of democratic consolidation, the issue of intelligence oversight remains vital, to ensure political accountability and financial efficiency,” according to a recent master’s thesis on the subject (pdf). “Oversight of intelligence is also important to the political initiatives Ukraine has undertaken to improve ties to NATO and the EU.”

The thesis, by Lt. Col. Oleksii Petrov of the Ukraine Ministry of Defense, presents an updated account of the organization of Ukraine intelligence services, and an explanation of the legal framework in which they operate.

The government of Ukraine publicly discloses current and retrospective spending levels for its various intelligence services, which is more than the U.S. has been able to manage.

Thus, the 2007 budget for the Foreign Intelligence Service of Ukraine (FISU) is 248 million grivnas (around $50 million), and the agency employs 4350 personnel, according to online budget documents cited and translated by the author.

See “Political and Budgetary Oversight of the Ukrainian Intelligence Community: Processes, Problems and Prospects for Reform” by Oleksii Petrov, Naval Postgraduate School, September 2007.

Noteworthy new and updated reports from the Congressional Research Service include the following (all pdf).

“Tanzania: Background and Current Conditions,” December 20, 2007.

“Data Mining and Homeland Security: An Overview,” updated December 5, 2007.

“Polygraph Use by the Department of Energy: Issues for Congress,” updated December 10, 2007.

“Egypt: Background and U.S. Relations,” updated December 12, 2007.

“China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues,” updated December 13, 2007.

U.S. government regulations that limit disclosures of certain scientific and technical information to foreign nationals — known as “deemed exports” — are obsolete and need to be replaced, according to a new advisory committee report (pdf).

More broadly, however, the new report reflects the growing realization that government secrecy policies have become counterproductive and need to be recalibrated to adapt to evolving technological and geopolitical realities.

“In this new world order, a nation that attempts to build a ‘wall’ around its scientific and technologic communities simply denies itself the opportunity to fully benefit from the vast body of knowledge being accumulated elsewhere – and thereby virtually assures itself of an inferior competitive position in the knowledge world,” the report states.

“With the important exception of a very few highly sensitive military areas, the United States is better served to partner in the global creation of knowledge than to attempt to protect the lesser body of knowledge that can be generated through purely domestic research efforts.”

“Stated otherwise, protecting what we know is in most instances not the primary concern; participating in creating that body of scientific and technical knowledge that is not known is the concern.”

While secrecy — “protecting what we know” — may still be the first instinct of those seeking to preserve the technological advantages enjoyed by the United States, the advisory committee concluded that this approach is no longer well-founded, if it ever was.

“The United States in the latter half of the 20th century was preeminent in many, probably most, fields of scientific and engineering endeavor. Today, the United States is but one among a number of nations or groups of nations competing for leadership across the spectrum of scientific and engineering disciplines. Just a few examples where other nations have already established leadership positions include polymer composites (Germany), 3D optical memories (Japan), bulk metallic glass (Japan), biostatistics/multivariate statistics (France), population biology (UK), adaptive dynamics (Germany/Switzerland), theoretical biology (Netherlands), and solar energy (Japan/Germany). Any nation today seeking to remain at the forefront of science and technology must be an active participant in the global science and technology community if it is to be successful.”

“In the evolving environment, unlike the recent past, denial of access to United States-possessed knowledge can often be circumvented simply by obtaining it from others.”

“The seemingly inescapable conclusion from these evolving circumstances is that the erection of high ‘walls’ around large segments of the nation’s science and engineering knowledge base has become not only increasingly impracticable, but that attempts to build such walls are likely to prove counterproductive – not only to America’s commercial prowess but also, in balance, to America’s ability to defend itself.”

“That is, the nation will be better served, in balance, by seeking to accelerate its own technical prowess than by seeking to deny potential enemies access to broad ranges of knowledge.”

Though focused specifically on “deemed exports” and disclosures of scientific information to foreign persons, this analysis has obvious implications for the national security classification system and other restrictive information security policies.

The advisory committee, chaired by Norman Augustine, the former CEO of Lockheed Martin, was composed of various luminaries from academia, the commercial sector and the national security community. Its findings were first reported by Paul Basken in the Chronicle of Higher Education on December 21.

See “The Deemed Export Rule in the Era of Globalization,” submitted to the Secretary of Commerce, December 20, 2007.

“Yes, disclosing information may cause damage,” said William Leonard of the Information Security Oversight Office in a valedictory interview with Newsweek this week. “But you know what, withholding that information may even cause greater damage… And I don’t think we [have] sufficiently taken that into account.”

If a new information security policy emerges, it’s not likely to come from the Central Intelligence Agency, which still adheres to the coldest of cold war secrecy policies.

Due to CIA classification restrictions, a new State Department documentary collection on The Intelligence Community, 1950-1955 suffers from significant, basic omissions.

“Between the fiscal years ended June 30, 1947 and 1955 the total budget has increased from approximately [dollar figures not declassified],” the official history states (in document 192, the Doolittle report).

Similarly, “The number of civilian employees of the Agency under personnel ceilings has increased from [number not declassified] at June 30, 1947, to an estimated [number not declassified] for the fiscal year ending June 30, 1955.”

Thus, the official government history of U.S. intelligence from 1950-1955 does not include either the budget or the size of the CIA. Instead, this half-century old information remains classified, which indicates that CIA thinks its disclosure would damage national security.

That, of course, is too silly to require refutation. All it means is that CIA’s views on classification policy can safely be ignored by anyone who is not legally obliged to comply with them.

Fortunately, a good deal of the historical CIA budget information that was withheld from the State Department volume can be found in David M. Barrett’s book “The CIA and Congress” (University Press of Kansas, 2005) at pages 154-156.

Secrecy News was too hasty in writing the December 20 headline that “Foreign Relations in the U.S. [was] Not Published in 2007.” That turned out to be wrong.

On December 21, 2007 the State Department published two print volumes of the Foreign Relations of the United States series, along with an electronic document collection.

In addition to the Intelligence Community volume, the State Historian’s Office released a FRUS volume on “Greece, Cyprus, Turkey 1973-1976,” and an online collection of documents on South Asia, 1973-1976.

It is possible to detect signs of haste in the new publications as well. For example, the South Asia online collection includes two documents (Chapter 3, documents 56 and 61) dated April 27, 1973 and August 1, 1973 that are attributed to Secretary of State Henry Kissinger. But Kissinger did not assume the role of Secretary of State until September 22, 1973 [now corrected (12/28/07)].

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

“U.S. Arms Sales: Agreements with and Deliveries to Major Clients, 1999-2006,” December 20, 2007.

“Overview of Education Issues and Programs in Latin America,” December 19, 2007.

“Nuclear Weapons: The Reliable Replacement Warhead Program,” updated December 18, 2007.

“Intelligence Estimates: How Useful to Congress?,” updated December 14, 2007.

“North Korea’s Nuclear Weapons: Latest Developments,” updated December 5, 2007.

“Franking Privilege: Historical Development and Options for Change,” December 5, 2007.

Updated below

This week marks one full year since publication of the latest print volume of the Foreign Relations of the United States (FRUS) series, the official documentary record of U.S. foreign policy which dates back to the Abraham Lincoln Administration.

Publication of FRUS is required by law (Public Law 102-138) and is supposed to occur “not more than 30 years after the events recorded.”

But while FRUS has long lagged behind its 30 year deadline, the failure to publish even a single print volume all year is extraordinary and unprecedented in living memory.

“Let’s just say that it didn’t happen on my watch that a year would pass without a volume published,” said one former State Department official. (Two electronic document collections were posted on the State Department web site earlier this year.)

As recently as June 2007, the State Department was still indicating that “10, possibly 11, volumes were scheduled for publication by the end of the year.” But that didn’t happen.

In September, FRUS General Editor Edward C. Keefer “expressed regret that this number [of published FRUS volumes] fell short of earlier projections of 2007 volume production due to a series of problems and in spite of the best efforts of the staff to solve them,” according to the minutes of a September 2007 meeting of the State Department Advisory Committee on Historical Diplomatic Documentation.

According to one outside source, the situation has been complicated by staff turnover, “indifferent management,” and even a pending Inspector General complaint.

In response to an email inquiry from Secrecy News, however, FRUS Editor Keefer wrote that “It is not quite as bad as you think.”

“We have two print volumes ready to go,” Dr. Keefer said. “The books are overdue from the printer, but we will try to release them before the end of the year.”

Dr. Keefer said he would provide a fuller response after the holidays.

An online collection of many of the FRUS volumes dating from 1861 to 1960 has been established at the University of Wisconsin. More recent volumes are posted on the State Department web site.

Update: On December 21, the State Department published two new print volumes of FRUS, along with another electronic document collection.

Open government advocates hailed the passage of procedural amendments to the Freedom of Information Act that are intended to improve government responsiveness to FOIA requests and to strengthen the hand of requesters.

The OPEN Government Act, which cleared both the Senate and the House over the past week, “becomes the first major reform to the Freedom of Information Act in more than a decade,” said Senator Patrick Leahy (D-VT), the bill’s leading co-sponsor in the Senate along with Sen. John Cornyn (R-TX). Rep. William Lacy Clay (D-MO), Rep. Tom Davis (R-VA) and Rep. Henry Waxman (D-CA) led passage in the House.

Among other things, Senator Leahy explained, “This legislation will improve transparency in the Federal Government’s FOIA process by: restoring meaningful deadlines for agency action under FOIA; imposing real consequences on Federal agencies for missing FOIA’s 20-day statutory deadline; clarifying that FOIA applies to government records held by outside private contractors; establishing a FOIA hotline service for all Federal agencies; and creating a FOIA Ombudsman to provide FOIA requestors and Federal agencies with a meaningful alternative to costly litigation.”

For all of its procedural virtues, the OPEN Government Act does not touch the root of government secrecy, namely the decision to withhold information. The Act does not repeal or modify any of the more than one hundred statutory exemptions from disclosure under the FOIA. And it does not address the proper scope or application of the classification system. That is a task for another day.

Coincidentally, the Department of Defense this week issued a proposed new FOIA regulation for public comment. It will presumably have to be revised again to be made consistent with the new Open Government Act.