In his March 2003 executive order 13292, President Bush affirmed that on December 31, 2006, with certain limitations, “all classified records that (1) are more than 25 years old and (2) have been determined to have permanent historical value under title 44, United States Code, shall be automatically declassified whether or not the records have been reviewed.”

That December 31 deadline is now almost here, the New York Times noted in a front page story today. See “U.S. to Declassify Secrets at Age 25” by Scott Shane, New York Times, December 21.

The automatic declassification of 25 year old records, which will continue to apply to new records each year as they become 25 years old, is a genuine innovation in classification policy. It is a credit both to the Clinton Administration, which first adopted the proposal, and the Bush Administration, which did not abandon it.

In practice, however, the impact of the policy may not be as dramatic as one might imagine, for several reasons.

First, many agencies have sought and received exemptions for one of nine categories of information (war plans, intelligence sources, WMD information, etc.) that need not be declassified. (Selected agency declassification plans may be found here.)

Second, records that involve the interests (“equities”) of more than one agency are not subject to this month’s deadline. Rather, they are to be declassified by December 31, 2009.

Third, declassification does not imply immediate disclosure. Some declassified records may still need to be reviewed for privacy data and other exempt information.

Finally, the processing of hundreds of millions or billions of declassified pages to make them publicly accessible is a logistical challenge that may exceed the capability of the National Archives, which has faced increasing budgetary pressures.

Unless Congress chooses to provide supplemental resources for the Archives, many declassified records will remain inaccessible.

In a December 21 news release (pdf), the Office of Director of National Intelligence announced the declassification of “four decades of U.S. intelligence on Yugoslavia” including 34 recently declassified National Intelligence Estimates. The records are available through the National Intelligence Council.

In a well-intentioned but clumsy legislative maneuver known as the Smith Amendment, Congress in 2000 generally prohibited the Department of Defense from granting security clearances to individuals who had been convicted of a crime and sentenced to prison for more than a year.

“Because of the severity of the Amendment, many long-time, faithful employees of the government lost their clearances and their jobs for minor offenses occurring long ago,” notes attorney Sheldon Cohen in a new analysis (pdf) of the Smith Amendment.

The measure was modified somewhat in 2004 and both the original and the modified version allowed exceptions for “meritorious” cases. But both failed to articulate what constitutes a “meritorious” case that would justify an exception to the rule.

“There is nothing in the legislative history to indicate what standard Congress intended to be applied for granting waivers,” observed Cohen, a specialist in security clearance policy.

Cohen describes the evolution of the Smith Amendment, its ambiguities and the problems it has created. He concludes with a proposed set of principles for evaluating whether a particular individual qualifies for a meritorious exception to the Smith Amendment rule.

See “Smith Amendment Update” by Sheldon I. Cohen, December 2006.

Former national security advisor Sandy Berger is prohibited from handling classified material for at least three years as a result of his illicit removal of records from the National Archives in 2003, to which he pleaded guilty last year. Some startling new details of that case were presented in a declassified National Archives Inspector General report, obtained under the Freedom of Information Act by the Associated Press. See “How an Ex-Aide to President Clinton Stashed Classified Documents” by Josh Gerstein, New York Sun, December 21.

The National Security Council (NSC) Policy Coordinating Committee (PCC) on Records Access and Information Security Policy this week approved a “program of instruction” (pdf) to help promote reciprocity among agencies in granting security clearances.

A new report from the Congressional Research Service presents a comprehensive 80-page survey of foreign policy and national security issues that will face the next Congress. See “Foreign Affairs, Defense and Trade: Key Issues for the 110th Congress” (pdf), December 20, 2006.

Also newish from CRS is “Bioterrorism Countermeasure Development: Issues in Patents and Homeland Security” (pdf), updated November 27, 2006.

The Nixon Administration gave high priority to covert action against the Soviet Union and its interests around the world, according to newly published declassified records (pdf).

“With respect to black operations, the President enjoined me to hit the Soviets, and hit them hard, any place we can in the world,” wrote CIA director Richard Helms in a March 25, 1970 memorandum for the record.

“He said to ‘just go ahead,’ to keep Henry Kissinger informed, and to be as imaginative as we could. He was as emphatic on this as I have ever heard him on anything,” Mr. Helms wrote.

The Helms memorandum and other records on U.S. covert action against the Soviet Union were published this week in a new volume of Foreign Relations of the United States (FRUS).

“The total cost of this program is $766,000,” one document noted, in a departure from previous CIA practice of redacting almost all intelligence budget expenditures.

The newly published documents on covert action against the Soviet Union are collected and posted here.

The full text of the source volume of Foreign Relations of the United States, 1969-1976, volume XII (Soviet Union, January 1969-October 1970), may be found here.

A companion volume FRUS volume, volume XIV (Soviet Union, October 1971-May 1972), also newly published, is here.

The Federation of American Scientists yesterday asked (pdf) a federal court to enforce a court order directing the National Reconnaissance Office (NRO) to process a Freedom of Information Act request for unclassified budget information after the NRO said it had “decided” not to do so.

In a July 24, 2006 order, D.C. District Judge Reggie B. Walton rejected an NRO claim that the requested budget information was an “operational” file that is exempt from the FOIA. He ordered the agency to process the request.

On September 20, the NRO filed notice that it would appeal that ruling.

Last month, the agency said that in light of the pending appeal it had “decided not to produce the document(s) in question.”

By law, however, the NRO is not entitled to make such a decision. Rather, it must request and receive a stay of the court order, which it failed to do.

In a December 18 motion in the case, Aftergood v. National Reconnaissance Office, we asked Judge Walton to enforce his July 24 order.

Last week it emerged that the Department of Justice had adopted the unprecedented tactic of employing a subpoena in order to recover copies of a classified document that had been provided without authorization to the American Civil Liberties Union.

Yesterday, in a swift and somewhat farcical conclusion to the controversy, the government withdrew the subpoena and announced that the document had been declassified (pdf).

The use of a subpoena was not intended as a threat, a government attorney wrote (pdf) to the court, but was issued in response to a “request” from the ACLU, so that the organization would not have to voluntarily surrender the document without “due process”:

“The Government issued the subpoena based on […] what it believed to be the ACLU’s request for a subpoena in lieu of voluntarily returning the then-classified document.”

Further background is available in “Government Backs Down in its Attempt to Seize ‘Secret’ Document,” ACLU, December 18, and “Prosecutors Drop A.C.L.U. Subpoena in Document Fight” by Adam Liptak, New York Times, December 19.

The new Army Field Manual on Counterinsurgency doctrine has been downloaded from the Federation of American Scientists web site at an extraordinary rate — more than 250,000 times since it was posted on Friday morning.

But unlike previous drafts obtained by Secrecy News, the new manual is no secret. It has been published and actively disseminated by the Army.

“Why don’t you also put up our press release announcing the manual which can also be found on our web site?” inquired Col. Steven A. Boylan of the Combined Arms Center at Fort Leavenworth. That December 15 news release (pdf) and the accompanying manual (large pdf) can be found on the Fort Leavenworth web site.

Col. Boylan also objected to Secrecy News’ statement that the new counterinsurgency doctrine was at odds with current U.S. policy in Iraq.

“This manual was in production for about two years and is not and was not intended to counter any current or future policy as you indicate in your article. This document is also not specific to Iraq or Afghanistan. If you understand the basis of doctrine, then you know that our doctrine is geared to be used anywhere our Army might deploy.”

“Bosnia and the European Union Military Force (EUFOR): Post-NATO Peacekeeping” (pdf), updated December 5, 2006.

“Mad Cow Disease and U.S. Beef Trade” (pdf), updated December 6, 2006.

On December 17 the New York Times published a correction of a December 3 Times story which said that polonium-210 had been used to power U.S. spacecraft after a December 14 Secrecy News story showed that the claim was almost certainly incorrect:

“An article on Dec. 3 about the many uses of polonium 210 referred incorrectly to the radioactive material utilized in early American satellites. While plans were drawn up to use polonium 210 as a power source, and one federal document said it was used, nuclear experts say that the government decided instead to rely on plutonium 238; no American satellites ever flew with polonium 210,” the Times wrote.

The error was trivial but the correction was grand.

Some institutions and some government officials have an aversion to admitting error, viewing it as a sign of weakness. But admitting and correcting errors paradoxically enhances credibility, not diminishes it. It makes it possible to approximate the truth ever more closely.

An openness to admitting error is also essential to a vital functioning democracy.

The president of the American Association for the Advancement of Science, Gilbert S. Omenn, touched on this point recently in a wide-ranging address published in Science Magazine:

“Science works best in a culture that welcomes challenges to prevailing ideas and nurtures the potential of all of its people. Scientific ways of thinking and of re-evaluating one’s views in light of new evidence help strengthen a democracy.”

The U.S. Army has completed a long-awaited new manual (large pdf) presenting military doctrine on counterinsurgency. It is the first revision of counterinsurgency doctrine in twenty years.

In several respects, the new doctrine implicitly repudiates the Bush Administration’s approach to the war in Iraq.

“Conducting a successful counterinsurgency campaign requires a flexible, adaptive force led by agile, well-informed, culturally astute leaders,” the foreword states.

The new manual emphasizes the importance of planning for post-conflict stabilization, and it stresses the limited utility of conventional military operations.

“The military forces that successfully defeat insurgencies are usually those able to overcome their institutional inclination to wage conventional war against insurgents.”

A copy of the new 282 page unclassified manual was obtained by Secrecy News.

See “Counterinsurgency,” U.S. Army Field Manual 3-24, December 15, 2006 (12.9 MB PDF).

There is an urgent need to reach consensus on how to configure the future U.S. nuclear weapons stockpile, says a new report (pdf) of the Defense Science Board (DSB).

“We are already late in addressing [stockpile] needs and the current pace of progress in defining, approving, and implementing the needed capabilities is not encouraging.”

The sources of the present urgency, the DSB report says, are several:

“We are behind on weapons surveillance, which is essential to continuing confidence in the reliability, safety, and security of weapons.”

“We are behind on dismantling unneeded weapons which adds to the security and safety concerns and burdens.”

“We have an inadequately defined and funded capability for replacement, over time, of aging weapons in the stockpile.”

In short, according to the DSB, “The current nuclear organization, management and programs do not provide for a nuclear weapons enterprise capable of meeting the nation’s minimum needs.”

The DSB proposes a series of recommendations that it says would help sustain the nuclear stockpile, transform the weapons production complex, and instigate needed organizational changes.

See Report of the Defense Science Board Task Force on “Nuclear Capabilities,” unclassified Report Summary, December 2006.

An analysis of the new report by Hans Kristensen of FAS may be found on the Strategic Security blog here.

Updated Below:

Government attorneys reached deep into their legal bag of tricks to devise a subpoena (pdf) against the American Civil Liberties Union demanding “any and all copies” of a classified document that was leaked to the ACLU in October.

Questioned by an ACLU attorney as to the authority for this demand, a government attorney cited the espionage statutes in 18 USC 793 and 798.

Such an action is unprecedented, the ACLU said in a motion to quash (pdf) the subpoena, and it is also an improper use of subpoena authority.

If successful, this tactic could be used to confiscate classified documents from news organizations, effectively imposing prior restraint on publication and curtailing freedom of the press.

“No official secrets act has yet been enacted into law, and the grand jury’s subpoena power cannot be employed to create one,” the ACLU said.

The story was covered in the New York Times here, and the Washington Post here.

The subpoena against the ACLU is the latest in a series of new government efforts to tighten controls on classified information and to punish those who disclose such information.

A recent issue of The News Media & The Law, published by the Reporters Committee for Freedom of the Press, focuses on “Journalists and the Espionage Act” and provides updates on several ongoing cases and controversies.

Update, December 18:

Government Backs Down in its Attempt to Seize “Secret” Document From ACLU

One week after the American Civil Liberties Union moved to quash an unprecedented government grand jury subpoena demanding “any and all copies” of a previously “secret” memorandum, the government today backed down from the fight, asking a judge to withdraw the subpoena and saying that the document in question has been declassified.