Congress adopted legislation that limits the ability of the Department of Homeland Security to withhold so-called “sensitive security information” (SSI), which is a category of restricted information related to transportation security.

The 2007 Homeland Security Appropriations Act would, among other things, require “the release of certain SSI information that is three years old unless the Secretary makes a written determination that identifies a rational reason why the information must remain SSI.”

The measure was signed into law by the President on October 4.

Former Rep. Helen Chenoweth-Hage (R-Idaho), who died this week, once challenged an airport security official who wanted to pat her down before boarding an airliner. She demanded to see the regulation that authorized such an action. The official refused, indicating that it was SSI and could not be shared with a member of the public. Rep. Chenoweth declined to submit, and took a car instead.

I retold this story in “The Secrets of Flight,” Slate, November 18, 2004.

Whether the government can impose such “secret law” is a question that has recently been presented to the Supreme Court by John Gilmore, who was told that he could not have access to the regulation requiring him to show his identification at the airport.

Family members of U.S. military intelligence personnel who are killed while engaged in clandestine intelligence operations may be eligible for special monetary gratuities, according to a recently updated Defense Department Instruction (pdf).

“A gratuity shall be paid to the dependents of any member of the Armed Forces or of any employee of the Department of Defense assigned to duty with a DoD intelligence component, whose identity is disguised or concealed; or who is within a category of individuals determined by the Secretary of Defense to be engaged in clandestine intelligence activities; and who, after October 14, 1980, dies because of injuries (excluding disease) sustained outside the United States and whose death resulted from hostile or terrorist activities, or occurred in connection with an intelligence activity having a substantial element of risk.”

The new policy was issued by Under Secretary of Defense for Intelligence Stephen A. Cambone.

See “Payment of Death Gratuity to Survivors of Certain DoD Personnel Assigned to Intelligence Duties,” DoD Instruction 1341.08, 25 August 2006.

After years of public controversy, the Department of Energy has adopted a new polygraph testing policy that it said “will significantly reduce the number of individuals who will undergo a polygraph examination.”

In particular, “DOE has decided to alter the role of polygraph testing as a required element of the counterintelligence evaluation program by eliminating such testing for general screening of applicants for employment and incumbent employees without specific cause,” according to a notice published in the Federal Register.

The use of the polygraph for “general screening” of employees has been its most commonly criticized application.

DOE rejected arguments that polygraph testing should be eliminated entirely, indicating that such a position “cannot be reconciled” with Congressional direction to DOE to develop a new polygraph policy.

The new policy will still “require a counterintelligence [polygraph] evaluation for applicants for certain high-risk positions and every five years for incumbents of those positions,” the DOE notice said.

See “Counterintelligence Evaluation Regulations,” Federal Register, September 29.

I discussed “Polygraph Testing and the DOE National Laboratories” in a 3 November 2000 essay in Science Magazine.

On October 2, a federal court rejected (pdf) a legal challenge to polygraph testing that was filed by six applicants for jobs at the FBI and the Secret Service who were denied employment after they failed a polygraph test, as noted on the web site antipolygraph.org.

With hundreds of millions of pages to be reviewed for declassification in the coming decade, the National Archives (NARA) faces an enormous logistical challenge if it is to discharge its responsibility to open up the historical record to the American public.

A new “Report on Declassification Challenges” (pdf) suggests that the Archives, led by National Archivist Dr. Allen Weinstein, is taking the matter seriously.

“Over the next ten years,… NARA needs to be positioned to effectively and efficiently process more than 766 million pages of classified federal records,” the Report notes.

“Even without the challenges identified in this report, the sheer volume requiring declassification processing by NARA with its limited resources is itself a significant challenge.”

The August 2006 report, publicly released last week, lays out the magnitude of the current declassification burden and sketches a proposed concept for operations for a new National Declassification Initiative to help expedite the process.

For a variety of reasons, including resource limitations and bureaucratic resistance from some agencies, the success of the new initiative is not assured.

But neither is declassification an “optional” activity that can be easily dispensed with. To the contrary, the Report says, declassification is an integral part of classification policy.

“One of the principal means of maintaining the effectiveness of the security classification system is the prompt removal of classification controls from information that no longer requires protection in the interest of national security.”

The new Report was released by the Archivist “in the spirit of transparency and to ensure that all quarters are aware of the challenges faced by NARA in this area, our ongoing efforts to address them, and to highlight the commitment of NARA to fulfilling our responsibilities to both safeguard information that requires continued protection and otherwise seek the prompt declassification and release of information.”

Some new products of the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court,” updated September 26, 2006.

“Terrorist Surveillance Act of 2006: S. 3931 and Title II of S. 3929, the Terrorist Tracking, Identification, and Prosecution Act of 2006,” September 25, 2006.

“Intelligence Spending: Public Disclosure Issues,” updated September 25, 2006.

“Selected Procedural Safeguards in Federal, Military, and International Courts,” updated September 18, 2006.

“East Asian Regional Architecture: New Economic and Security Arrangements and U.S. Policy,” September 18, 2006.

“Critical Infrastructure: The National Asset Database,” September 14, 2006.

“Information Operations and Cyberwar: Capabilities and Related Policy Issues,” updated September 14, 2006.

“China/Taiwan: Evolution of the ‘One China’ Policy — Key Statements from Washington, Beijing, and Taipei,” updated September 7, 2006.

“Immigration: Terrorist Grounds for Exclusion of Aliens,” updated September 5, 2006.

“Pages of the United States Congress: Selection, Duties, and Program Administration,” updated August 14, 2006.

The Bush Administration’s use of Presidential signing statements to assert objections to enacted legislation reflects an attempt to expand and consolidate Presidential authority at the expense of Congress, according to a new analysis (pdf) from the Congressional Research Service.

“It seems evident that the Bush signing statements are an integral part of the Administration’s efforts to further its broad view of presidential prerogatives and to assert functional and determinative control over all elements of the executive decisionmaking process,” the CRS study said.

“It appears that recent administrations, as made apparent by the voluminous challenges lodged by President George W. Bush, have employed these instruments in an attempt to leverage power and control away from Congress by establishing these broad assertions of authority as a constitutional norm.”

Signing statements have been issued by Presidents for over a century and are not inherently problematic. To the contrary, they may be beneficial to the extent that they alert Congress and the public to Presidential actions and intentions.

Yet the Bush Administration has been issuing signing statements with growing frequency, as reported earlier this year by Charlie Savage of the Boston Globe, and in a way that involves a “qualitative difference” from their use in the past, according to the CRS.

The Bush signing statements appear to be part of a larger campaign to seize increased Presidential authority, the CRS said.

“The broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure [i.e., to accustom] Congress, as well as others, to the belief that the President in fact possesses expansive and exclusive powers upon which the other branches may not intrude,” the CRS report stated.

It follows that “the appropriate focus of congressional concern should center not on the issuance of signing statements themselves, but on the broad assertions of presidential authority forwarded by Presidents and the substantive actions taken to establish that authority.”

The CRS study, written by T.J. Halstead, provides abundant information on the history of presidential signing statements, describes their limited impact on the judicial process, critiques a recent American Bar Association report on the subject, and more.

Like other CRS products, this study has not been made directly available to the public by CRS. A copy was obtained by Secrecy News.

See “Presidential Signing Statements: Constitutional and Institutional Implications,” September 22, 2006.

Instead of defending Congressional prerogatives, Congress appears eager to transfer new, unchecked authority to the President in the name of combating terrorism.

A bill on military commissions for trial of enemy detainees that was approved in the House this week would permanently alter the complexion of the U.S. government by authorizing abuse of prisoners, curtailing prisoner access to the judicial system, and other previously unthinkable steps.

For critical perspectives on the military commissions bill, see “The Blind Leading the Willing” by Dahlia Lithwick, Slate, September 27, and “Rushing Off a Cliff,” New York Times (editorial)(free reg. req’d), September 28.

The September 27 House debate, leading to approval of the bill, is here.

The September 27 Senate floor debate on the bill is here.

Meanwhile, House Democrats said that pending legislation on domestic intelligence surveillance would dismantle existing checks and balance and traduce the Constitution.

H.R. 5825, the Electronic Surveillance Modernization Act, “is a dangerously broad bill that would turn FISA [the Foreign Intelligence Surveillance Act, which regulates domestic intelligence surveillance] on its head by making warrantless surveillance the rule rather than the exception,” the House Democrats said.

“[Its] vague definitions and broad loopholes allow the Executive Branch to conduct electronic surveillance of telephone calls and e-mail in the United States without court orders and without meaningful oversight.”

Their views, detailed in a dissent to a new report of the House Intelligence Committee, were rejected along party lines by the Republican majority.

See “Electronic Surveillance Modernization Act,” House Report 109-680, part 1, September 25.

Classification is the predominant means of protecting national security information. But even when information is unclassified, there are a number of statutes that can be used to restrict its public availability on security-related grounds.

Such statutory controls on unclassified security-related information are usefully cataloged in a new report from the Congressional Research Service.

See “Protection of Security-Related Information” (pdf), September 27, 2006.

For no extra charge, here are a couple of other recent CRS reports (pdf) obtained by Secrecy News.

“U.S.-India Nuclear Cooperation: A Side-By-Side Comparison of Current Legislation,” September 5, 2006.

“The Use of Federal Troops for Disaster Assistance: Legal Issues,” updated August 14, 2006.

“We believe that the more we inform our American citizens, the better our government will be,” President Bush said Tuesday.

The remark could be considered conventional wisdom. Yet it is unexpected from this President since by most objective measures — such as the record number of classification decisions, skyrocketing expenditures on classification-related activities, and growing security controls on unclassified documents — public access to government information has been markedly curtailed under the Bush Administration.

Nevertheless, the President reiterated, “We believe that the more transparency there is in the system, the better the system functions on behalf of the American people.”

It follows that the less transparent aspects of government, such as the national security decision making process, function less well, which is manifestly true.

The President spoke at a signing ceremony for the Federal Funding Accountability and Transparency Act, which will establish a searchable online database of federal grants and contracts.

A White House fact sheet presented an argument that the new law “Is Part Of President Bush’s Ongoing Commitment To Improve Transparency, Accountability, And Management Across The Federal Government.”

At another event on Tuesday, the President appeared to express doubt that the national security classification system was working properly.

Referring to press reports in the New York Times and elsewhere about a classified National Intelligence Estimate on trends in terrorism, portions of which were declassified (pdf) Tuesday, President Bush complained that “Somebody has taken it upon themselves to leak classified information for political purposes.”

In Washington, he said, “there’s no such thing as classification anymore, hardly.”

In reality, of course, classification has expanded in size and scope to unprecedented levels in the Bush Administration.

So the President might have been making a deep point that the efficacy of classification declines when its use increases sharply, along the lines of Justice Potter Stewart’s familiar dictum that “when everything is classified, then nothing is classified.” Or maybe he just misspoke.

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

“Interrogation of Detainees: Overview of the McCain Amendment,” updated September 25, 2006.

“The War Crimes Act: Current Issues,” September 25, 2006.

“U.S. Policy Regarding the International Criminal Court,” updated August 29, 2006.

“Agroterrorism: Threats and Preparedness,” updated August 25, 2006.

The U.S. Nuclear Regulatory Commission says that it will no longer conceal the amounts of highly enriched uranium (HEU) fuel proposed for export to foreign research reactors. The announcement marks a step back from the heightened secrecy adopted by the NRC and other government agencies post-September 11.

The revised policy had been sought by the Nuclear Control Institute, a non-proliferation advocacy organization, and the move was disclosed in an August 31 letter (pdf) to the Institute.

“After considering your recommendations and various other factors, NRC will discontinue automatically withholding material quantity information from the public versions of export license applications,” wrote NRC Chairman Dale E. Klein to NCI analyst Alan J. Kuperman.

Henceforward, “Federal Register notices for proposed HEU exports will also include quantities requested,” Chairman Klein wrote.

The Nuclear Control Institute had argued that such disclosure serves the public interest because it enables public vetting of applications for HEU exports and thereby helps to ensure that traffic in weapons-grade uranium is minimized.

NCI analyst Kuperman commended the NRC for “rethinking and reversing a secrecy policy that was a counter-productive over-reaction to the attacks of September 11.”

He said the new openness policy will “assist the Commission to fulfill its statutory responsibility to minimize commerce in bomb-grade uranium.”

“The NRC will continue to withhold information on projected or actual shipment schedules, delivery dates, … or any other related logistical information… as this information could be useful to a potential adversary,” Chairman Klein wrote.

The Central Intelligence Agency requires current and former employees to submit all intelligence-related material that they intend to publish to the CIA for pre-publication review.

Depending on the political climate, the subject matter and sometimes the personalities involved, the pre-publication review process can be routine and relatively painless, or it can be a bureaucratic nightmare spawning years of litigation.

The current CIA regulations governing pre-publication review were revised in 2005 and issued by then-DCIA Porter J. Goss. A copy of the regs, in slightly redacted form, is available here (pdf).

The prior version, dating from 1995 (also partially redacted), is here (pdf).

Both editions were recently entered into the record of a pending lawsuit, Thomas Waters Jr. v. Central Intelligence Agency.

Plaintiff Waters, a former CIA employee, is suing the Agency in a pre-publication review dispute in D.C. District Court. He is represented by attorney Mark S. Zaid.