Some recent products of the Congressional Research Service obtained by Secrecy News that have not previously been made readily available in the public domain include the following (all pdf).

“Congressional Oversight of Intelligence: Current Structure and Alternatives,” updated February 15, 2007.

“Intelligence Spending: Public Disclosure Issues,” updated February 15, 2007.

“The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and U.S. Foreign Intelligence Surveillance Court and U.S. Foreign Intelligence Surveillance Court of Review Decisions,” updated February 15, 2007.

“Polygraph Use by the Department of Energy: Issues for Congress,” updated February 14, 2007.

“Data Mining and Homeland Security: An Overview,” updated January 18, 2007.

“Abu Sayyaf: Target of Philippine-U.S. Anti-Terrorism Cooperation,” updated January 24, 2007.

“Airport Improvement Program: Issues for Congress,” February 26, 2007.

“Tracking Current Federal Legislation and Regulations: A Guide to Resources,” February 28, 2007.

A sweeping proposal by Senator Jon Kyl (R-AZ) to criminalize the unauthorized disclosure or publication of classified information about U.S. Government activities relating to terrorism was abruptly withdrawn on February 28 in the face of vigorous protests by public interest, press and First Amendment advocacy groups.

But then a modified, more narrowly focused version was reintroduced on the Senate floor on March 2 as an amendment to S.4, the pending bill on enacting the remaining recommendations of the 9/11 Commission.

The new Kyl amendment (pdf) would penalize employees of the House or Senate or other authorized personnel who knowingly disclose classified information that is contained in a report to Congress.

“Singling out employees of Congress for criminal sanctions would be virtually unprecedented,” said Kate Martin, director of the Center for National Security Studies.

It also “raises serious separation of powers concerns,” she said, since classification criteria and practices are dictated by the executive branch. “And it would demonstrate a lack of confidence by the Congress that it can police its own house.”

The Bush Administration formally notified (pdf) the Senate this week that it objects to a provision in a pending bill on homeland security that would require publication of the annual intelligence budget total.

“The Administration strongly opposes the requirement in the bill to publicly disclose sensitive information about the intelligence budget.”

“Disclosure, including disclosure to the Nation’s enemies and adversaries in a time of war, of the amounts requested by the President and provided by the Congress for the conduct of the Nation’s intelligence activities would provide no meaningful information to the general American public, but would provide significant intelligence to America’s adversaries and could cause damage to the national security interests of the United States,” the White House statement said.

It is hard to find a serious intelligence professional who agrees with this White House view.

Because the intelligence budget total is a high-level aggregate of spending levels in more than a dozen different agencies, its intelligence value to U.S. adversaries is practically nil, since funding for any particular program is insulated many layers beneath the enormous top-line figure. On the other hand, disclosure of the total figure would provide the public with a reliable index of the magnitude of intelligence spending to compare with spending on other national priorities.

To critics and other observers, intelligence budget secrecy is the preeminent example of unnecessary and inappropriate classification.

For that reason, the 9/11 Commission recommended that budget disclosure is the best way to begin reversing the spread of bureaucratic secrecy that has undermined the performance of U.S. intelligence agencies. The 9/11 Commission recommendation was incorporated into the Senate bill (S.4), which is expected to pass the Senate next week.

In other important disputes, the new White House statement also took sharp exception to provisions in the bill that would strengthen the Public Interest Declassification Board, enhance whistleblower protections for intelligence community employees, and require increased intelligence and information sharing with state and local officials.

The somber duties associated with official reporting of U.S. Army casualties, including notification of survivors, are spelled out in exhaustive detail in a new Army regulation (pdf).

“Generally, casualty matters are unclassified,” the regulation states (obliquely admitting the possibility of classified casualties), “but they are assigned the protective marking of For Official Use Only” until after notification of next of kin.

The new regulation provides “notification scripts” for use in informing family members of their loss in various circumstances including, for example, suspected friendly fire cases:

“The Secretary of the Army has asked me to express his deep regret that your (relationship) (died/was killed in action) in (country) on (date). (State the circumstances). His/her death is a result of suspected friendly fire. A formal investigation is being conducted….”

“The CNO [casualty notification officer] will internalize the script … before proceeding to make notification and will relay the information orally and in person in a calm and sensitive manner to the person being notified,” the regulation states.

“The CNO team members should not have alcohol on their breath or be inebriated.”

See “Army Casualty Program,” Army Regulation AR 600-8-1, February 28, 2007.

A legislative proposal by Senator Jon Kyl (R-AZ) that would criminalize the unauthorized disclosure or publication of classified information “concerning efforts by the United States to identify, investigate, or prevent terrorist activity” is drawing strong opposition even before it has been formally introduced.

The Kyl proposal (pdf), which would amend the espionage statute at 18 U.S.C. 798, is to be offered as an amendment to an unrelated bill on data mining that will be marked up by the Senate Judiciary Committee on Thursday, March 1.

Classified information on U.S. counterterror efforts appears in the press with some frequency and often serves as a stimulus to intense public deliberation. Today, for example, the Washington Post reported new information on controversial and possibly illegal CIA “black sites” where an unknown number of prisoners are held incommunicado for interrogation.

Under the sweeping Kyl proposal, disclosure or publication of such information could be punishable by up to twenty years in prison.

“The proposal seeks to stifle, with the threat of criminal prosecution, informed public debate about the most serious matters of the effectiveness of government counterterrorism efforts,” wrote dozens of public interest, first amendment and civil liberties advocacy groups (including FAS) in a February 27 letter (pdf) to the Senate Judiciary Committee.

“We strongly urge you to reject the proposed amendment,” they wrote in a letter coordinated by the coalition OpenTheGovernment.org, directed by Patrice McDermott.

When a bill to criminalize the unauthorized disclosure of any classified information was introduced in 2000, it passed both houses of Congress before it encountered effective opposition (and it was subsequently vetoed by President Clinton).

In remarkable contrast, the present proposal by Senator Kyl has elicited organized opposition before it has even been formally introduced.

In addition to the OpenTheGovernment.org letter, a coalition of media organizations known as the Sunshine in Government Initiative, directed by Rick Blum, issued its own critique of the bill.

The Kyl proposal was previously reported by Rebecca Carr of Cox News and also by the Reporters Committee for Freedom of the Press.

A new U.S. Air Force directive “provides policies for managing nuclear weapons and weapon systems, and for protecting personnel, property, and the environment from hazardous exposure to radioactive materials.” See Air Force Policy Directive 91-1, “Nuclear Weapons and Systems Surety” (pdf), 13 February 2007.

Another new Air Force document on combating the threat or use of weapons of mass destruction “provides guidance for understanding, planning, and executing counter-chemical, biological, radiological, and nuclear operations to enable US forces to survive and operate effectively in this deadly environment.” See Air Force Doctrine Document 2-1.8, “Counter-Chemical, Biological, Radiological and Nuclear Operations” (pdf), 26 January 2007. (Update: Dick Destiny offers some commentary on AFDD 2-1.8, and provides some corrections.)

Army doctrine on the use of attack helicopters to locate and destroy enemy forces and to gather or confirm intelligence is presented in a new field manual. See “Attack Reconnaissance Helicopter Operations” (large pdf), Field Manual FM 3-04.126, February 16, 2007. The new manual notes that it has been reviewed for operations security considerations and approved for public release.

Analysts at the Congressional Research Service continue to churn out reports for Congress faster than they can reasonably be digested. Not all of them are of broad interest, nor do they consistently offer original content or significant analytical insight.

But as long as Congress refuses to make them available online to the general public, there seems to be value in our helping to do so.

Recent CRS products that are not already available in other online public collections such as OpenCRS and the State Department’s Foreign Press Center include the following.

“Is China a Threat to the U.S. Economy?,” updated January 23, 2007.

“China’s Trade with the United States and the World,” updated January 4, 2007.

“Yemen: Current Conditions and U.S. Relations,” updated January 4, 2007.

“State and Urban Area Homeland Security Plans and Exercises: Issues for the 110th Congress,” updated January 3, 2007.

“The Organization for Economic Cooperation and Development,” updated January 19, 2007.

“Environmental Activities of the U.S. Coast Guard,” updated January 16, 2007.

“The Emergency Planning and Community Right-to-Know Act (EPCRA): A Summary,” updated January 3, 2007.

“Countries of the World and International Organizations: Sources of Information,” updated January 8, 2007.

The Public Interest Declassification Board (PIDB), an advisory body whose members were appointed by the President and the Congress, held its eleventh meeting on February 24 to receive public input on potential improvements to national security classification and declassification policy. Much of the session was devoted to discussion of whether the annual intelligence budget total should be declassified.

Intelligence budget disclosure was first advocated by Congress more than thirty years ago. More recently, it was recommended by the 9/11 Commission as an indispensable first step toward eliminating counterproductive secrecy in the U.S. intelligence bureaucracy. Currently, there are at least three bills pending in the U.S. Senate that would require such disclosure. The step is opposed by the Bush Administration.

“There is no one who is better positioned than the PIDB to win favorable presidential reconsideration of the question of intelligence budget disclosure and to catalyze a final resolution of this perennial classification dispute,” I told the PIDB members (pdf). “I hope you will seize the opportunity.” My written presentation on that and other subjects is here.

“I am already on record in favor” of disclosure, said former Congressman David Skaggs (D-CO), who chaired the meeting, noting that he had supported legislation to that effect.

“I’ve been on both sides of the debate,” said Martin Faga, former director of the National Reconnaissance Office, who recalled that he had approved the declassification of the NRO’s existence in 1992.

The intelligence budget total probably “does not meet the criteria for classification,” admitted former Deputy DCI Adm. William Studeman and former Senate Intelligence Committee staffer Joan Vail Grimson, but they said it should remain classified anyway since its disclosure, they feared, could lead to further uncontrolled releases of more sensitive information.

But that kind of approach “undermines the integrity of the classification system,” warned Bill Leonard, director of the Information Security Oversight Office.

“As an intelligence professional, I can’t see a way that disclosure of the intelligence budget total could hurt me,” said former CIA analyst Bruce Berkowitz, who was also invited to address the Board.

“I would like to hear more,” said Archivist of the United States Allen Weinstein, who endorsed another FAS proposal to engage agency Inspectors General in oversight of classification and declassification.

The Board members were scheduled to meet later in the day with national security adviser Stephen J. Hadley.

The first annual report of the Public Interest Declassification Board is available here.

The problem of secret spending was examined by the Las Vegas Sun in the context of allegations that Nevada Governor Jim Gibbons took improper advantage of the secret “black budget” while serving in Congress to reward friends and supporters. See “Bush budget contains many secrets” by Lisa Mascaro, Las Vegas Sun, February 25.

Some recent reports of the Congressional Research Service that have not previously been made readily available in the public domain include the following (all pdf).

“Climate Change: Science and Policy Implications,” January 25, 2007.

“Foreign Science and Engineering Presence in U.S. Institutions and the Labor Force,” updated January 12, 2007.

“U.S. Military Dispositions: Fact Sheet,” updated January 30, 2007.

“Navy Ship Names: Background For Congress,” updated January 17, 2007.

“Latin America: Terrorism Issues,” updated January 22, 2007.

“U.S. National Science Foundation: An Overview,” updated January 24, 2007.

“War Powers Resolution: Presidential Compliance,” updated January 16, 2007.

“Laos: Background and U.S. Relations,” updated February 5, 2007.

“Kyrgyzstan’s Constitutional Crisis: Context and Implications for U.S. Interests,” updated January 5, 2007.

At the conclusion of a widely cited article on U.S. policy towards Iran in the latest issue of The New Yorker, Seymour Hersh referred to a November 2006 report by CRS “on what it depicted as the Administration’s blurring of the line between C.I.A. activities and strictly military ones.”

The referenced report is “Covert Action: Legislative Background and Possible Policy Questions,” November 2, 2006.

The statutes that enable the government to gain legal access to telephone records, whether for law enforcement or intelligence purposes, are examined in a newly updated report (pdf) from the Congressional Research Service.

The report also discusses prohibitions on access to, or disclosure of, such records, along with exceptions to the prohibitions. See “Government Access to Phone Calling Activity and Related Records: Legal Authorities,” updated January 25, 2007.

Some other notable CRS products obtained by Secrecy News that are not readily available in the public domain include these (all pdf):

“Armenia, Azerbaijan, and Georgia: Security Issues and Implications for U.S. Interests,” updated February 1, 2007.

“Vienna Convention on Consular Relations: Overview of U.S. Implementation and International Court of Justice (ICJ) Interpretation of Consular Notification Requirements,” May 17, 2004.

“Pipeline Safety and Security: Federal Programs,” updated January 25, 2007.

“Russian Political, Economic, and Security Issues and U.S. Interests,” updated January 18, 2007.

“Terrorist Capabilities for Cyberattack: Overview and Policy Issues,” updated January 22, 2007.

In a new study (pdf), the Coalition of Journalists for Open Government says that federal agencies have made little progress in improving their Freedom of Information Act programs, despite a year-old executive order directing them to become more requester friendly.

The JASON defense science advisory panel released a slightly revised unclassified summary (pdf) of its classified study on nuclear weapon pit lifetimes which concluded that most nuclear weapons primaries have “credible minimum lifetimes in excess of 100 years as regards aging of plutonium.” See Pit Lifetime, January 11, 2007.

In a careful review of the Zapruder film of the assassination of President Kennedy, Max Holland and Johann Rush propose a new way of understanding what the film does and does not reveal. See “1963: 11 Seconds in Dallas.”

PBS Frontline has been running an exceptionally interesting series called “Newswar” on current conflicts between government and the press, with an episode this week that focused on government secrecy. A website associated with the series includes transcribed interviews with dozens of national security and journalistic luminaries, and with me.

In the unprecedented prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), a federal court last year upheld the government’s controversial claim that the Espionage Act could be used to prosecute the unauthorized receipt and transmittal of classified information by private citizens who are not engaged in espionage.

But as the case proceeds, the court continues to interpret the Espionage Act in a restrictive manner that places an increasing burden of proof on the prosecution, and that could even make the case a source of embarrassment for the government by exposing sensitive “back channel” diplomatic practices.

In a decision last week (pdf), Judge T.S. Ellis, III, denied a defense motion asking the court to compel testimony from Israeli government officials.

But along the way, the court also elaborated its demanding view of the requirements that the prosecution must meet to win a conviction under the Espionage Act, and indicated what sorts of facts might tend to exculpate the defendants.

“To prove the alleged conspiracy to disclose [national defense information, or NDI] to one not authorized to receive it, the government must prove all of the following,” wrote Judge Ellis, at the beginning of a list of prosecutorial hurdles that reiterates and expands upon the requirements first spelled out in his August 2006 order denying a motion to dismiss the case.

Among other things, the government must prove that “defendants possessed all the culpable mental states that would be necessary for conviction under [the Espionage Act],” which include four distinct states of knowledge or belief (at page 9).

Briefly, prosecutors must show that the defendants knew the information involved was closely held and could harm the United States; that it could be used to the injury of the United States or to the advantage of a foreign nation; that the recipients of the information were not authorized to receive it; and that the defendants acted with knowledge that the disclosures were illegal and could harm national security.

But if the defense can show that U.S. government officials frequently disclosed confidential information to AIPAC for transmittal to the Israeli government, the court observed, that would mean the defendants could have plausibly believed such behavior was authorized.

If “the governments of the United States and Israel routinely used AIPAC as a diplomatic ‘back channel’ [to convey sensitive information]” that would be “potentially exculpatory” since it could “affect defendants’ perception of the propriety of any disclosures made by or to them.”

The nature of the relationship between the governments of the U.S. and Israel may also have a bearing on the defendants’ state of mind, the Judge wrote, in language that may foreshadow close scrutiny of U.S.-Israel relations at trial:

“The more specific the details of the alleged cooperation between the two governments, the more probative [i.e., legally significant] such cooperation becomes,” Judge Ellis wrote. (p. 14)

In another important observation, the judge wrote that “testimony that disclosures of alleged NDI were viewed by defendants, or their contacts in the diplomatic establishment, as beneficial to the United States’ interests is exculpatory.” (p. 13)

Similar reasoning would imply that if a news organization published classified information in the belief that doing so was beneficial to the United States, that would take it beyond the scope of the Espionage Act’s prohibitions on unauthorized disclosure of national defense information.

The trial of defendants Steven J. Rosen and Keith Weissman is scheduled to begin on or around June 4 in the Eastern District of Virginia.

A separate ruling (pdf) from Judge Ellis last week denied a defense request to suppress statements made by defendants to FBI agents on grounds that the agents used trickery or deception to elicit the statements.

The two rulings were first reported in the New York Sun on February 16.