Some notable new reports of the Congressional Research Service not readily available to the public include the following.

“Nonproliferation and Threat Reduction Assistance: U.S. Programs in the Former Soviet Union” (pdf), updated June 26, 2006.

“Syria: U.S. Relations and Bilateral Issues” (pdf), June 22, 2006.

“Pakistan-U.S. Relations” (pdf), June 21, 2006.

“Iraq: Recent Developments in Reconstruction Assistance” (pdf), updated June 15, 2006.

“U.S. Policy Regarding the International Criminal Court” (pdf), updated June 14, 2006.

“U.S. Space Programs: Civilian, Military, and Commercial” (pdf), updated June 13, 2006.

“Homeland Security: Defending U.S. Airspace” (pdf), updated June 6, 2006.

The House of Representatives last week condemned the unauthorized disclosure of classified information concerning a government program to track terrorist financing that was reported in the New York Times, the Los Angeles Times and other news outlets on June 23.

The June 29 resolution, approved 227-183, included a veiled rebuke to the press, stating that the House “expects the cooperation of all news media organizations in protecting the lives of Americans … by not disclosing classified intelligence programs such as the Terrorist Finance Tracking Program.”

The House debate on the resolution was none too edifying.

Rep. Barney Frank pointed out that the resolution contained a number of factual errors, including its assertion that “In 1998, disclosure of classified information regarding efforts to monitor the communication of Osama bin Laden eliminated a valuable source of intelligence information on al Qaeda’s activities.”

Rep. Frank showed that this allegation, referring to a supposed leak that was published in the Washington Times, has been conclusively refuted. But to no avail. Under the uncompromising rules adopted by the Republican leadership, no amendments were permitted. As a result, it was not possible to correct errors in the House resolution or to clarify matters of principle.

Nevertheless, there is a broad consensus on the outer limits of the debate.

On the one hand, all parties (other than a few provocateurs on the political right) agree that freedom of the press means that the press must be free to publish more than just what government officials authorize them to publish. On the other hand, there is universal agreement even among the media that certain types of information should not be published in the interests of national security.

What remains in dispute is whether information on programs such as warrantless domestic surveillance or terrorist finance tracking falls in the proscribed category.

The transcript of the floor debate on House Resolution 895, “Supporting Intelligence and Law Enforcement Programs to Track Terrorists and Terrorist Finances,” may be found here.

The campaign to criminalize publication of classified information was reviewed by Scott Sherman in “Chilling the Press,” The Nation, July 17.

A ringing defense of the disclosure of the terrorist finance tracking program was offered in a June 28 editorial in the Minneapolis-St. Paul Star-Tribune that was syndicated by the Scripps Howard News Service. See “Secret U.S. program deserves scrutiny.”

One reason why classification is an unreliable guide as to what should or should not be published by the press is that classification policy is implemented erratically by the government.

In a new report for Congress, the Government Accountability Office found numerous problems in classification activity at the Department of Defense.

“Our review of a … sample of 111 classified DOD documents from five OSD offices shows that, within these offices, DOD personnel are not uniformly following established procedures for classifying information, to include correctly marking classified information,” the GAO report said.

“In our review of the OSD documents, we questioned DOD officials’ classification decisions for 29 documents–that is, 26 percent of the sample.”

“The majority of our questions centered around two problems: the inconsistent treatment of similar information within the same document, and whether all of the information marked as classified met established criteria for classification.”

See “Managing Sensitive Information: DOD Can More Effectively Reduce the Risk of Classification Errors” (pdf), June 30, 2006.

A companion report reviewed classification activity at the Department of Energy.

See “Managing Sensitive Information: Actions Needed to Ensure Recent Changes in DOE Oversight Do Not Weaken an Effective Classification System” (pdf), June 30, 2006.

Stanley Moskowitz, a Central Intelligence Agency official who recently played a leading role in winning declassification of intelligence records on Nazi war criminals, died last week.

“Stan Moskowitz deserves a lot of credit for the Nazi records release, which he managed to accomplish despite a lot of opposition from a directorate which shall not be named,” one former CIA employee told Secrecy News.

“His position was that, not only were the records 50 years old, but most of the people mentioned in them were Nazis for god’s sake. What and why should we still be protecting?”

“Stan Moskowitz pursued this like he did every other assignment in his lifetime of service to America, to preserve and protect our freedom while honoring the democratic traditions of a government which we can trust and be proud of,” wrote B, another admirer.

“He conducted his lifetime of service within the constraints of the ethical and moral principles which set us apart from those who wish us harm.”

See “Stanley M. Moskowitz, 68; Twice CIA Liaison to Congress,” Washington Post, July 1.

The global war on terror has cost the U.S. $437 billion since September 11, the Congressional Research Service estimated last month, including $319 billion for the war in Iraq. (The Pentagon claims the latter figure should be $210 billion.)

The CRS cost estimate has been widely reported, but the underlying report has not been widely available to the public. Now it is:

“The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11” (pdf), updated June 14, 2006.

Some other notable CRS reports obtained by Secrecy News include the following.

“Military Operations: Precedents for Funding Contingency Operations in Regular or in Supplemental Appropriations Bills” (pdf), June 13, 2006.

“Defense Procurement: Full Funding Policy — Background, Issues, and Options for Congress” (pdf), updated June 20, 2006.

“U.S. Democracy Promotion Policy in the Middle East: The Islamist Dilemma” (pdf), June 15, 2006.

“Freedom of Speech and Press: Exceptions to the First Amendment” (pdf), updated June 2, 2006.

The government’s increasing use of the “state secrets privilege” to resist civil litigation on national security matters has often been met by courts with uncritical, even abject deference to the executive agencies that invoke the privilege. But another, more assertive response is possible.

“The state secrets privilege is absolute,” wrote Judge Royce C. Lamberth categorically in a newly disclosed decision (pdf) from July 2004.

In that case, former DEA agent Richard Horn alleged that his phone had been illegally wiretapped by the U.S. government when he served in Myanmar (Burma) in 1993. The government asserted the state secrets privilege and moved for dismissal.

Plaintiff Horn then proposed that the provisions of the Classified Information Procedures Act (CIPA) be adapted to permit the secure adjudication of classified information in his lawsuit, as is done in certain criminal trials such as espionage cases.

But, Judge Lamberth reasoned, “If the Court adopted CIPA,… the [state secrets] privilege would not be absolute.” So he simply dismissed the case.

Horn’s lawsuit — Horn v. Huddle, D.C. District Case No. 94-1756 — is sealed. It does not appear in the public docket of the D.C. District Courthouse. Instead, it is tagged “SEALED v. SEALED” with the annotation “Case is not available to the public.”

But a redacted copy of Judge Lamberth’s July 28, 2004 order dismissing the case was obtained by Secrecy News.

A markedly different judicial response to a state secrets claim may be emerging in a current lawsuit brought by the Electronic Frontier Foundation alleging unlawful domestic surveillance.

Instead of simply granting “absolute” deference to the government whenever it asserts the state secrets privilege, the Court admitted that there are multiple interests at stake that must somehow be reconciled:

“How can the court minimize the conflict between plaintiffs’ right to litigate this case and the government’s duty to protect state secrets?” Judge Vaughan R. Walker asked the parties in a January 20 order (pdf).

“Allowing the executive branch to treat the privilege as an absolute bar to judicial review, as the Bush administration is attempting, would be profoundly unwise,” argued constitutional scholar Louis Fisher in a new op-ed. “It would let self-serving assertions by one of the litigants usurp the judge’s authority.” See “State Your Secrets” (pdf) by Louis Fisher, Legal Times, June 26 (reprinted with permission).

A critical view of the Bush Administration’s use of the state secrets privilege was presented in “The Bush Code of Secrecy” by Mark Follman, Salon, June 23.

Last March, the Central Intelligence Agency asserted (pdf) the state secrets privilege in a somewhat mysterious case called Jane Doe v. CIA, and moved for dismissal. Last week, Mark S. Zaid, the attorney for “Jane Doe,” asked the Court not to dismiss the case.

“The privilege has been used in this administration more than any other administration,” according to University of Texas-El Paso professor William Weaver.

“Depending on how you count it, it’s been asserted … between 19 and 21 times,” he told National Public Radio on June 19.

One of the most vivid allegations made by the U.S. government regarding Iraqi weapons of mass destruction was the claim that Iraqi had developed mobile laboratories for the production of biological weapons. The allegation, based on reports from a source known as “Curveball,” proved to be false.

But the U.S. intelligence assessment of the supposed mobile BW labs, though erroneous, raised questions that still remain unanswered, wrote (pdf) bioweapons expert Milton Leitenberg of the University of Maryland.

According to a cryptic reference spotted by Leitenberg in the Silberman-Robb WMD Commission report, U.S. contractors performed a “replication” of the Iraqi design and found that “it works.”

The exact nature of this “replication” and whether it led to the production of actual BW agents are among several lingering questions he posed.

See “Unresolved Questions Regarding US Government Attribution of a Mobile Biological Production Capacity by Iraq” by Milton Leitenberg, June 2006.

“Sensitive Security Information (SSI) is information that would be detrimental to transportation security if publicly disclosed,” according to a Department of Homeland Security directive released last week under the Freedom of Information Act.

See DHS Management Directive 11056 (pdf), “Sensitive Security Information,” December 16, 2005.

Confusingly, however, SSI is also a control marking used by the Department of Agriculture to mean something quite different, observed information policy expert Harold C. Relyea of the Congressional Research Service in a new report (pdf) on classification and other information controls.

SSI “is both a concept and a control marking used by the Department of Agriculture (USDA), on the one hand, and jointly by the Transportation Security Administration (TSA) of the Department of Homeland Security as well as by the Department of Transportation, on the other hand, but with different underlying authorities, conceptualizations, and management regimes for it,” he wrote.

See “Security Classified and Controlled Information: History, Status, and Emerging Management Issues,” June 26, 2006.

While the number of different designations for “sensitive but unclassified” information has been estimated at over 60, that number approaches 100 if different agency definitions of the same designation are taken into account, according to a Justice Department official.

In a somewhat gruesome but unblinking new publication (pdf) prepared for the Joint Chiefs of Staff, the U.S. military prescribes doctrine for the recovery, identification, handling and burial of deceased soldiers, enemy combatants and civilian detainees.

The violent, horrible death of combatants and non-combatants is of course a defining characteristic of war. And the strange efforts by the Bush Administration to prevent the media from photographing flag-draped coffins of soldiers killed in Iraq (until a lawsuit overturned the policy last year) did nothing to change this reality.

The new doctrinal publication anticipates that the casualties of war may be mutilated or dismembered. They may be dangerously contaminated with chemical or biological agents or radioactive materials. Mass casualties may overwhelm existing facilities, forcing improvised solutions such as mass interment.

The publication stresses the dignified treatment of the dead, and includes summary accounts of the rituals associated with Protestant, Catholic, Jewish and Muslim religious traditions. (“Other than common respect, Buddhists do not have any particular requirements concerning the handling of human remains following death.”)

See “Mortuary Affairs in Joint Operations,” Joint Publication 4-06, June 2006 (195 pages, 2.5 MB).

One way to supplement and improve intelligence oversight would be to employ the Government Accountability Office (GAO), an investigative arm of Congress, to perform routine audits of key intelligence functions.

Yet this potentially valuable oversight tool lies dormant due to opposition from the CIA and other intelligence agencies.

The GAO will not even attempt to conduct oversight of intelligence unless it is specifically tasked to do so by the Congressional intelligence committees, a GAO official said (pdf) last week.

“For us to undertake such work would require the sponsorship of the Senate Select Committee on Intelligence or the House Permanent Select Committee on Intelligence.”

“While we have the authority to do such work, we lack the cooperation we need to get our job done in that area. As a result, unless and until we receive such cooperation, and given GAO’s limited recourse, we will continue our long-standing policy of not doing work that relates directly to intelligence matters unless requested to do so by one of the select intelligence committees.”

The statement appeared in a June 14 letter report to Congress on security clearance policy (at footnote 1).

This places responsibility on the intelligence committees to fully utilize the tools at their disposal, including the GAO.

“Every committee member up for re-election in 2006 and 2008 … should be required to commit publicly to applying the full weight of the GAO, with added resources, to intelligence matters,” urged Robert Steele of Open Source Solutions.

In 2001 testimony, a GAO official outlined his agency’s authority to conduct intelligence oversight and described the history of GAO access to intelligence information.

“We have not actively audited the CIA since the early 1960s, when we discontinued such work because the CIA was not providing us with sufficient access to information to perform our mission,” said Harry L. Hinton, Jr.

See “Observations on GAO Access to Information on CIA Programs and Activities,” July 18, 2001.

And see, relatedly, “CIA News, Inc.” from the Project on Government Oversight.

Gen. Michael Hayden, who is now the new CIA director, presented himself as a committed proponent of intelligence oversight in an April 2005 hearing on his nomination to become Deputy Director of National Intelligence.

But the record of that hearing, which has just been published, takes on a different aspect in light of the NSA warrantless surveillance program which was disclosed by the New York Times in December 2005 and kept secret from most members of the congressional intelligence committees.

“In a variety of sessions I have tried to be completely open and have treated the Committee as a stakeholder in our operational successes,” Gen. Hayden told the Senate Intelligence Committee in spring 2005 (at p. 49 of the PDF version).

He explained his understanding of the indispensable role of oversight.

“To be successful, the American intelligence community has to be very powerful and largely secret. And yet we live in a political culture that distrusts two things most of all: power and secrecy.”

“The path through what would otherwise be an unsolvable dilemma is the Congressional oversight structure where the people’s elected representatives have full access to our activities — thus ensuring necessary secrecy while creating the public confidence that ultimately allows us to create and exercise the powers that we need,” Gen. Hayden said then.

It follows logically that a failure to provide elected representatives with “full access to our activities” would engender a loss of public confidence.

See “Nomination of Lt. Gen. Michael V. Hayden to be Principal Deputy Director of National Intelligence,” hearing before the Senate Select Committee on Intelligence, April 14, 2005.

In a December 14, 2005 Executive Order, President Bush directed government agencies to review their Freedom of Information Act programs, evaluate their performance, and develop plans to reduce backlogs and improve efficiency.

Those plans were due on June 14 and some of them, not all, have now been published by the Department of Justice Office of Information and Privacy.