A May 18 letter sent to President Bush by House Intelligence Committee chairman Rep. Pete Hoekstra criticizing Administration policy on intelligence (first reported July 9 by Eric Lichtblau and Scott Shane of the New York Times) has already earned an enduring place in the annals of congressional oversight of intelligence.

While it has been welcomed by some as a sign of congressional vigor and independence, the letter from Chairman Hoekstra also features a weird admixture of paranoia and pique.

“I have been long concerned that a strong and well-positioned group within the Agency intentionally undermined the Administration and its policies,” he wrote.

This conspiracy theory, previously alleged mainly by conservative bloggers and editorial writers, “is supported by the Ambassador Wilson/Valerie Plame events” — despite the fact that Valerie Plame, whose CIA career was destroyed, would appear to be a victim rather than a perpetrator — “as well as by the string of unauthorized disclosures.”

“I have come to the belief that, despite his service to the [Directorate of Operations], Mr. Kappes [the new CIA Deputy Director] may have been part of this group.”

Kappes must be viewed with suspicion, Hoekstra explained, since his appointment was not opposed by House Democrats!

“I must take note when my Democratic colleagues – those who so vehemently denounced and publicly attacked the strong choice of Porter Goss as Director – now publicly support Mr. Kappes’s return,” Chairman Hoekstra observed acutely.

“Further, the details surrounding Mr. Kappes’s [2004] departure from the CIA give me great pause. Mr. Kappes was not fired, but, as I understand it, summarily resigned his position shortly after Director Goss responded to his demonstrated contempt for Congress and the Intelligence Committees’ oversight responsibilities.”

This is an idiosyncratic description of a dispute that arose between senior DO officials and the former congressional staff members who accompanied Director Goss to CIA, which led to the resignations of several officials.

“The fact is, Mr. Kappes and his Deputy, Mr. Sulick, were developing a communications offensive to bypass the Intelligence Committees and the CIA’s own Office of Congressional Affairs. One can only speculate on the motives but it clearly indicates a willingness to promote a personal agenda,” Rep. Hoekstra wrote.

As David Corn wrote in The Nation, “It’s hard to know who to root for” in this strange clash of personalities and institutions.

Maybe the answer is that the conflict itself is the good news, since it restores a healthy tension to the oversight process and drives the disclosure of new information into the public domain.

Coincidentally, Michael Sulick, one of the members of the supposed anti-Bush “cabal” at CIA named by Rep. Hoekstra, is the author of a colorful new first-person account of a CIA initiative to establish relations with Lithuania in 1991 when the Soviet Union fell.

See “As the USSR Collapsed: A CIA Officer in Lithuania” by Michael J. Sulick, Studies in Intelligence, vol. 50, no. 2, 2006.

“Arrogance, secrecy, and bad judgment have mired us in a mess in Guantanamo from which we are having great difficulty in extricating ourselves,” wrote U.S. Army Gen. (Ret.) Barry R. McCaffrey in a report (pdf) on his recent trip to the U.S. prison at Guantanamo Bay.

“The JTF Guantanamo Detention Center is the most professional, firm, humane and carefully supervised confinement operation that I have ever personally observed,” he stated.

At the same time, “Much of the international community views the Guantanamo Detention Center as a place of shame and routine violation of human rights. This view is not correct. However, there will be no possibility of correcting that view.”

“There is now no possible political support for Guantanamo going forward,” Gen. McCaffrey wrote.

“We need a political-military decisive move to break the deadlock” and to permit the closure of the Guantanamo detention facility.

Gen. McCaffrey proposed a combination of steps including transfer of as many detainees as possible to their host countries, criminal trials for some, and efforts to engage foreign and international legal organs to assume jurisdiction.

“We need to rapidly weed out as many detainees as possible and return them to their host nation with an evidence package as complete as we can produce. We can probably dump 2/3 of the detainees in the next 24 months.”

“Many we will encounter again armed with an AK47 on the battlefields of Iraq and Afghanistan. They will join the 120,000 + fighters we now contend with in those places of combat.”

But even if that is so, he wrote, “It may be cheaper and cleaner to kill them in combat then sit on them for the next 15 years.”

“We need to be completely transparent with the international legal and media communities about the operations of our detention procedures wherever they are located,” Gen. McCaffrey advised.

A copy of Gen. McCaffrey’s June 28, 2006 trip report on his June 18-19 trip to Guantanamo is available here.

Department of Energy classification reviewers at the National Archives examined over 2.5 million pages of previously declassified records earlier this year and found only nine (9) pages that they said contained classified information which should not have been publicly disclosed, according to a new report to Congress (pdf).

This is a vanishingly small error rate of less than a thousandth of a percent, the smallest ever reported by DOE since it began searching for inadvertently released classified nuclear weapons information in declassified files in 1999.

This might be considered well within the boundaries of what is reasonably achievable under a risk management approach to security policy.

Yet the DOE declassified document review program seems predicated on absolute risk avoidance, in which no release of classified information, no matter how outdated or innocuous it may be, is acceptable. And so the reviewers toil on, and public access to historical records at the National Archives remains disrupted.

See the Twenty-First Report to Congress on Inadvertent Disclosures of Restricted Data, U.S. Department of Energy, May 2006 (released in redacted form July 2006).

The Department of Energy has released a redacted version of its October 2005 Historical Records Declassification Guide, a document used by classification reviewers to determine which information may be publicly released under the declassification provisions of executive order 12958.

There are 15 categories of DOE national security information that are exempt from automatic declassification, the Guide explains, including information on naval nuclear propulsion, chemical and biological defense, space nuclear reactors, and much more.

The redacted Guide identifies topics within each one of those categories and indicates whether they are classified or unclassified.

Some of the material is of broader interest and significance. Appendix B, for example, provides a summary account of the history of nuclear weapons accidents, and explains that any further information beyond what is presented there must undergo classification review.

See “Historical Records Declassification Guide” (CG-HR-3), Department of Energy, October 2005 (redacted version).

“The Administration has taken significant steps to improve the process by which the Federal Government grants individuals access to classified information,” the Office of Management and Budget said in a recent report (pdf) on security clearances.

“The average time it takes today to complete the security clearance process has been reduced by 18 days, or 6 percent.”

That is, instead of an FY 2005 average of 297 days to get a security clearance, the average wait in the first quarter of FY 2006 dropped to 279 days.

The proposed goal for December 2006 is 134 days.

See “Report on The Status of Executive Branch Efforts to Improve the Security Clearance Process,” Office of Management and Budget, February 2006.

The OMB report was first reported by Rati Bishnoi in Inside the Pentagon on July 6, 2006.

“It’s not a crime to publish classified information,” explained Washington Post reporter Dana Priest in an electric moment on last Sunday’s NBC Meet the Press, even though “[commentator William] Bennett keeps telling people that it is.”

Mr. Bennett, who was sitting right next to Ms. Priest, had declared last April that reporters like Ms. Priest who publish classified information “against the wishes of the President” should be “arrested.”

“I don’t think what they did was worthy of an award,” Mr. Bennett had said, referring to the Pulitzer Prize-winning reporting by Ms. Priest and two New York Times reporters — “I think what they did is worthy of jail.” (Editor and Publisher, 04/18/06).

But Mr. Bennett was wrong and Ms. Priest was correct: There is no comprehensive statute that outlaws the publication of classified information.

(As Ms. Priest went on to explain, there are several narrow categories of classified information, such as communications intelligence, covert agent identities, and a few others that are protected by statute.)

A new report (pdf) from the Congressional Research Service describes the legal framework governing the disclosure and publication of classified national security information.

“This report provides background with respect to previous legislative efforts to criminalize the unauthorized disclosure of classified information; describes the current state of the laws that potentially apply, including criminal and civil penalties that can be imposed on violators; and some of the disciplinary actions and administrative procedures available to the agencies of federal government that have been addressed by federal courts.”

“Finally, the report considers the possible First Amendment implications of applying the Espionage Act to prosecute newspapers for publishing classified national defense information.”

The Congressional Research Service does not make its products directly available to the public. But a copy of the new CRS report was obtained by Secrecy News.

See “Protection of National Security Information,” June 30, 2006.

A private researcher investigating the history of the U.S. biological weapons program at the National Archives recently came up empty.

“She asked for the files for Fort Detrick from 1946 to 1956, and was brought 16 cartons,” recounted Milton Leitenberg of the University of Maryland. “However, every single file in every one of the 16 cartons had been removed, and replaced with a page dated post-2002, saying that the item had been withdrawn.”

The Fort Detrick records were removed from public access “after the Bush administration ordered agencies to withhold anything that might aid terrorists,” reported Scott Shane, then of the Baltimore Sun, in an August 1, 2004 Sun story on Fort Detrick’s Special Operations Division.

Meanwhile, the record of a congressional hearing that was held last year on biological terrorism has just been published.

See “Engineering Bio-Terror Agents: Lessons from the Offensive U.S. and Soviet Biological Weapons Programs,” House Committee on Homeland Security, July 13, 2005.

With its decision last week to strike down the Bush Administration’s unilateral creation of military tribunals for trying detainees, the Supreme Court highlighted and reinforced the rule of law in the conduct of military operations.

Several recent publications provide rich background on military law.

The 2006 edition of the “Operational Law Handbook” (pdf) published by the Army Judge Advocate General is “a ‘how to’ guide for Judge Advocates practicing operational law. It provides references and describes tactics and techniques for the practice of operational law.”

The Handbook covers the gamut of issues that arise in the field, from the Law of War to intelligence-related law to detainee operations.

See “Operational Law Handbook (2006),” Judge Advocate General’s Legal Center and School (598 pages, 3.7 MB).

U.S. military operations in Afghanistan and Iraq and the “war on terrorism” have raised a variety of novel legal issues, according to a 2004 study performed for the Army on “legal lessons learned.”

“Whether determining the applicability of the law of armed conflict to non-state terrorist actors, applying traditional and new fiscal authorities to a military occupation, or assisting in the development of rules of engagement (ROE) for an enemy that blended into civilian populations, JAs [judge advocates] and paralegals wrestled with cutting-edge legal issues during OEF [Operation Enduring Freedom] and OIF [Operation Iraqi Freedom].”

See “Legal Lessons Learned From Afghanistan and Iraq: Volume 1, Major Combat Operations,” Center for Law and Military Operations, 1 August 2004 (454 pages, 7.1 MB PDF).

Volume 2 of that study has recently been made public. See “Legal Lessons Learned From Afghanistan and Iraq: Volume 2, Full Spectrum Operations,” Center for Law and Military Operations, September 2005 (368 pages, 3.3 MB PDF).

Secrecy News is honored to be a recipient of the 2006 Public Access to Government Information award from the American Association of Law Libraries.

The U.S. Marine Corps has recently published a series of documents on counterinsurgency:

“Small-Unit Leaders’ Guide to Counterinsurgency,” June 2006 (4.7 MB PDF file).

“Countering Irregular Threats: A Comprehensive Approach,” 14 June 2006 (3.2 MB PDF file).

“Tentative Manual for Countering Irregular Threats: An Updated Approach to Counterinsurgency Operations,” 7 June 2006.

Military doctrine on the control of stress in combat is presented in a new Army field manual (pdf).

“In our own Soldiers and in the enemy combatants, control of stress is often the decisive difference between victory and defeat across the operational continuum. Battles and wars are won more by controlling the will to fight than by killing all of the enemy combatants. Uncontrolled combat stress causes erratic or harmful behaviors, impairs mission performance, and may result in disaster….”

See “Combat and Operational Stress Control,” U.S. Army Field Manual 4-02.51, July 2006.

A recent Congressional Research Service report “presents difficult-to-find statistics regarding U.S. military casualties in Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF, Afghanistan), including those concerning medical evacuations, amputations, and the demographics of casualties.”

“Some of these statistics are publically available at the Department of Defense’s (DOD’s) website, while others have been obtained through contact with experts at DOD.”

See “United States Military Casualty Statistics: Operation Iraqi Freedom and Operation Enduring Freedom,” June 8, 2006.

“Medical Program Support for Detainee Operations” (pdf) is the subject of Department of Defense Instruction 2310.08E, issued June 6, 2006.

The fortieth anniversary of the Freedom of Information Act, signed into law by President Johnson on July 4, 1966, was marked with the release of several interesting and informative publications.

The colorful and contentious history behind the adoption of the Act was described by Tom Blanton of the National Security Archive based on documents obtained from the Johnson Library. See “Freedom of Information at 40.” The legislative history of the Freedom of Information Act is newly available from the National Security Archive here.

The FOIA improvement plans that were recently developed by executive branch agencies were critically assessed by OpenTheGovernment.org in a new report. See “FOIA’s 40th Anniversary: Agencies Respond to the President’s Call for Improved Disclosure of Information.”

“The federal government continues to fall further behind in getting information to people seeking public records under the Freedom of Information Act,” according to a study (pdf) by the Coalition of Journalists for Open Government. “By far the heaviest use of the Freedom of Information Act comes from the nation’s businesses, seeking government records on contracts or for a host of other commercial uses,” another Coalition report found.

Sixty-eight countries now have freedom of information statutes, according to an updated survey by David Banisar published by freedominfo.org. See “Freedom of Information Around the World 2006.”

I chatted yesterday with reporter Julie Corwin of Radio Free Europe/Radio Liberty about “40 Years Of The Freedom Of Information Act”.

Three years into the war in Iraq, the U.S. Army has nearly completed a thorough revision and update of its official doctrine on counterinsurgency (pdf).

“It has been 20 years since the U.S. Army published a manual devoted to counterinsurgency operations, and 25 since the Marine Corps published its last such manual. With our Soldiers and Marines fighting insurgents in both Afghanistan and Iraq, it is thus essential that we give them a manual that provides principles and guidelines for counterinsurgency operations (COIN).”

The new doctrine begins with a thoughtful presentation of the nature of insurgency and counterinsurgency, their evolution and their characteristic strategies, and proceeds to consider the design of counterinsurgency operations.

“Traditionally, armies have had to unlearn much of their doctrine and (re)learn the principles of COIN while waging COIN campaigns.”

Counterinsurgency “presents a complex and often unfamiliar set of missions and considerations for a military commander.”

Among the “paradoxes of counterinsurgency” are the fact that “the more you protect your force, the less secure you are”; “the more force [is] used, the less effective it is”; and “sometimes doing nothing is the best reaction.”

The new counterinsurgency doctrine has not been publicly released, but a copy of the final coordination draft was obtained by Secrecy News.

See “Counterinsurgency,” U.S. Army Field Manual 3-24 (Final Draft), June 2006 (241 pages, 2.4 MB PDF file).