The scope of the “sensitive security information” (SSI) control category that prevents disclosure of certain kinds of transportation security-related information would be significantly curtailed by the House version of the 2007 Department of Homeland Security Appropriations Act.

The House bill would mandate automatic disclosure of SSI when it becomes three years old if it is not part of an active security plan and unless a written determination is made by the Secretary that it must be withheld.

It would also require DHS to revise its written policy on SSI to provide common representative examples of what constitutes SSI, and it would make it easier for parties in litigation to gain access to SSI. See the SSI provision in the 2007 Homeland Security Appropriations bill, which awaits final action on the House floor, here.

The White House denounced the House measure.

“The Administration strongly opposes Section 525 [the SSI provision], which would jeopardize an important program that protects Sensitive Security Information (SSI) from public release by deeming it automatically releasable in three years…,” according to a May 25 Statement of Administration Policy (pdf).

“This provision would require the Secretary to undertake an ongoing, burdensome review process to protect this secure sensitive information that would otherwise remain appropriately protected by regulation,” the White House said (at page 4).

And see, relatedly, “Homeland Security Department: FY2007 Appropriations” (pdf), Congressional Research Service, May 10, 2006.

The National Security Archive announced the publication of a large collection of Henry Kissinger’s Memoranda of Conversation (memcons), a detailed and candid record of his diplomatic contacts with world leaders from 1969 to 1977, edited by the Archive’s William Burr.

An FBI account of “Bacteriological Warfare in the United States” was published by TheMemoryHole.org. It contains a description of a “previously unknown simulated BW attack on the Pentagon” [circa 1950], notes Michael Ravnitzky, who obtained the document.

The second and final installment of declassified National Security Agency records on Vietnam and the Tonkin Gulf Incident was published yesterday on the NSA web site.

(Updated below)

Public disclosure of intelligence budget data would be required under a provision of the 2007 Intelligence Authorization Act that was reported (pdf) by the Senate Intelligence Committee yesterday and disclosed today.

The total amounts authorized and appropriated for the National Intelligence Program would be publicly disclosed each year starting in 2007, the Senate bill (pdf) states.

After 2007, the bill would also require the President to disclose the aggregate amount requested each year for national intelligence.

The budget disclosure provision was proposed by Senator Ron Wyden (D-OR) and approved yesterday by the Senate Intelligence Committee on a 9-6 vote. All Democrats on the Committee supported the move, as did Republican Senators Olympia Snowe (R-Maine) and Chuck Hagel (R-Nebraska). Other Republicans, including Chairman Pat Roberts (R-KS), opposed it.

Beyond aggregate budget disclosure, the bill would also require the Director of National Intelligence to conduct a study on the advisability of disclosing the budget of each individual element of the intelligence community.

The disclosure requirement (Section 107 of S. 3237) generally corresponds to a bipartisan recommendation of the 9/11 Commission. A similar measure was approved by the Senate in October 2004, but opposed by the White House and blocked in the House.

“The public ought to know how much money the government is spending on intelligence activities and the Senate has long sought this sensible reform,” Senator Jay Rockefeller and other Democratic Senators wrote in a Statement appended to the Report.

“We believe declassifying the aggregate amount of money the nation spends on intelligence would not harm the nation’s security.”

The new Senate Intelligence Committee report on the Intelligence Authorization Act for FY 2007 includes numerous other significant and interesting provisions including: a requirement for a DNI report on treatment of detainees (section 313); a requirement for a report on alleged clandestine detention facilities (section 314); establishment of a National Space Intelligence Center (section 410); and quite a bit more.

See the Senate Intelligence Committee Report on the FY 2007 Intelligence Authorization Act, Senate Report 109-259, May 25.

The underlying bill is S. 3237.

The intelligence bill has been referred to the Senate Armed Services Committee for a ten day period.

Update: See Panel Requires Annual Disclosure of Intelligence Budget by Walter Pincus, Washington Post, May 28.

For the third year in a row the Office of Vice President Dick Cheney has refused to disclose data on its classification and declassification activity, in an apparent violation of an executive order issued by President Bush.

“The Office of the Vice President (OVP), the President’s Foreign Intelligence Advisory Board (PFIAB), and the Homeland Security Council (HSC) failed to report their data to ISOO this year,” the Information Security Oversight Office (ISOO) noted in its new 2005 Annual Report to the President (pdf) (at page 9, footnote 1).

The Office of the Vice President has declined to report such data since 2002. Yet it is clear that disclosure is not optional.

“Each agency that creates or handles classified information shall report annually to the Director of ISOO statistics related to its security classification program,” according to ISOO Directive 1 (at section 2001.80).

This and other ISOO directives “shall be binding upon the agencies,” President Bush wrote in Executive Order 13292 (section 5.1). And an “agency” is not only a statutorily defined executive branch agency, but also includes “any other entity within the executive branch that comes into the possession of classified information.”

Despite this straightforward language, a spokeswoman for Vice President Cheney told the Chicago Tribune in April that his Office is “not under any duty” to provide the required information.

On prior refusals by the Vice President to disclose classification and declassification data, see “Cheney exempts his own office from reporting on classified material” by Mark Silva, Chicago Tribune, April 29, 2006.

Historically, the OVP has “not reported quantitatively significant data,” according to ISOO. So the Vice President’s current defiance of the executive order does not greatly distort the overall presentation of classification activity.

But it signals an unhealthy contempt for presidential authority and undermines the integrity of classification oversight.

The Information Security Oversight Office reported a nine percent drop in overall classification activity in its new annual report for FY 2005 (pdf).

Total classification activity (including “original” and “derivative” classification) dropped from the record high 2004 level of 15.6 million classification actions to 14.2 million, almost identical to the 2003 level.

“ISOO views the decrease reported in classification, particularly after three years of rising numbers, as a positive step,” ISOO Director William Leonard reported to the President.

Declassification increased during FY 2005 by 4 percent to 29.5 million pages.

While the data reported by ISOO each year serve as a useful benchmark, the ISOO methodology for collecting and reporting data is rudimentary and not very illuminating. For example, the annual report provides no way to assess overclassification.

During the period covered by the latest annual report, the 9/11 Commission determined that the amount of the annual intelligence budget was improperly classified and should be disclosed. But House Republicans and the White House blocked declassification (the Senate favored it) and the budget figure remained classified despite an expert bipartisan consensus in favor of disclosure.

But the reality of overclassification is not reflected in the ISOO data. There is no mechanism for determining just what fraction of classification actions are, like intelligence budget secrecy, illegitimate.

Still, the ISOO annual report provides an occasion to reflect on larger trends in classification and declassification.

“A responsible security classification system and a committed declassification program are the cornerstones of an open and efficient government that serves to protect and inform its citizens,” Mr. Leonard wrote.

The 2005 ISOO annual report also presents useful information on individual agency performance and related topics such as the Interagency Security Classification Appeals Panel, the Public Interest Declassification Board, industrial security, and more.

In an extraordinary act of public outreach, the Information Security Oversight Office will hold a free public workshop on June 30 on the use of mandatory declassification review as a tool for researchers.

ISOO is also offering interested members of the public a DVD recording of an October 2005 Symposium on classification policy that was held to mark the 10th anniversary of executive order 12958.

District Judge Roger Vinson of the Northern District of Florida this month became the newest member of the Foreign Intelligence Surveillance Act (FISA) Court.

Judge Vinson was named by the Chief Justice of the United States to a seven year term on the FISA Court, effective May 4. He replaces Judge Michael J. Davis, whose term on the Court expired this month.

The FISA Court, established by the Foreign Intelligence Surveillance Act of 1978, provides judicial authorization for electronic surveillance and physical searches that are conducted within the United States for foreign intelligence and counterterrorism purposes.

Judge Vinson’s appointment has not been previously reported, but it was confirmed for Secrecy News yesterday by Shelly Snook, media liaison and assistant to the chief judge of the D.C. District Court.

The current membership of the eleven-member FISA Court and of the three-member FIS Court of Review is available on the Federation of American Scientists web site here.

The House Permanent Select Committee on Intelligence announced (pdf) that it will hold a hearing on Friday May 26 on “the Media’s Role and Responsibilities in Leaks of Classified Information.”

There is no legislation on leaks currently before the Committee, and there are no governmental witnesses testifying at the hearing.

In an invited statement for the record (pdf), I attempted to put the issue into a larger context and to illustrate the fact that some leaks serve a constructive purpose.

“I believe it is an error to focus on unauthorized disclosures as if they were an isolated phenomenon, without consideration of the corrupted state of the classification system and the difficulties faced by whistleblowers who seek to comply with official procedures,” I wrote.

“From my own perspective, it seems likely that the benefits of leaks in preserving constitutional values greatly outweigh their risks to national security.”

The suggestion by Attorney General Alberto Gonzales last weekend that the government might prosecute reporters who publish classified information was critiqued by Jacob Sullum of Reason Magazine in “When Speech Is Outlawed, Only Outlaws Speak,” May 24.

Committee chairman Rep. Pete Hoekstra has been an outspoken critic of classified leaks.

“Each year, countless unauthorized leaks cause severe damage to our intelligence activities and expose our capabilities,” he said in a speech last year.

“The fact of the matter is, some of the worst damage done to our intelligence community has come not from penetration by spies, but from unauthorized leaks by those with access to classified information.”

“On 12 November 2002, Osama Binladen issued a public statement which specifically targeted Canada for the first time for its collaboration with the United States in attempting to dismantle Al Qaida,” a 2002 Canadian intelligence report (pdf) noted.

With that statement in mind, the Canadian Security Intelligence Service (CSIS) conducted classified studies on the terrorist threat to Canadian transportation systems. Two of those classified studies have now been declassified and released in redacted form.

The declassified studies were obtained under Canada’s Access to Information Act by former Canadian intelligence officer and author Stéphane Lefebvre, who provided copies to Secrecy News.

At least some of the many redactions seem silly, for example: “Surface transportation presents a [adjective deleted] degree of vulnerability to terrorist attacks,” one study begins. The missing word is probably not “low” or “negligible.”

See “International and National Terrorist Threats to Surface Transportation,” CSIS Study #2002-3/26 (redacted) (3 MB PDF).

and “The International Terrorist Threat to Maritime Transportation,” CSIS Study #2003-4/02 (redacted) (2.7 MB PDF).

The state secrets privilege has been invoked by the Bush Administration with greater frequency than ever before in American history in a wide range of lawsuits that the government says would threaten national security if allowed to proceed.

In virtually every case, the use of the privilege leads to dismissal of the lawsuit and forecloses the opportunity for an injured party to seek judicial relief.

Most recently, a lawsuit brought by Khaled El-Masri, a German citizen who alleged that he was kidnapped by the CIA and tortured over a five month period, was dismissed (pdf) after the CIA invoked the “state secrets” privilege.

The dismissal was not based on a finding that the allegations against the CIA were false.

“It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint,” wrote Judge T.S. Ellis, III in a May 12 order.

In fact, “It is worth noting that … if El-Masri’s allegations are true or essentially true, then all fair-minded people… must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy,” he wrote in the order dismissing the case.

“Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch,” he suggested.

But in this case the executive branch is the alleged perpetrator of the offense, and the legislative branch has no procedures for adjudicating allegations such as El-Masri’s, even if it had an interest in doing so. That’s what courts are for.

Terrorists can kill people and destroy property. But they cannot undermine the rule of law, or deny injured parties access to the courts. Only the U.S. government can do that.

The state secrets privilege has been invoked lately in a remarkable diversity of lawsuits. See this selection of case files from recent state secrets cases.

Tom Blanton of the National Security Archive reflected on the growing use of the state secrets privilege and how it relates to the larger climate of secrecy in “The lie behind the secrets,” Los Angeles Times, May 21.

Recently introduced legislation would “provide protection from frivolous government claims of state secrets,” the Project on Government Oversight noted.

Wired News today published documents (pdf) pertaining to the alleged role of AT&T in NSA warrantless surveillance related to another lawsuit in which the state secrets privilege has been invoked.

When workers at the secret Groom Lake (“Area 51”) aircraft test facility in Nevada filed a lawsuit in the early 1990s alleging that they had been injured by fumes from open-pit burning of chemical waste associated with stealth aircraft development, the government blocked the lawsuit by insisting that all information regarding the chemical waste was classified.

So it came as a surprise to researcher Stephen I. Schwartz when he discovered that some of this information had been published online by the Air Force in a document cleared for public release.

Specifically, a safety manual (pdf) intended for emergency responders identifies the “hazardous byproducts of burning wreckage” of an F-117A stealth fighter.

“It’s a textbook case of how the government, in this case the Air Force, wields classification rules unevenly and withholds information illegally when its disclosure would prove embarrassing or costly,” said Stephen Schwartz, the former publisher of the Bulletin of the Atomic Scientists.

A copy of the document he found, entitled “F-117A Safety Supplement: Aerospace Emergency Rescue and Mishap Response Information,” U.S. Air Force Technical Manual, 19 May 2005 (see esp. pages 9-10) is available on the Federation of American Scientists web site (2.3 MB PDF).

The story was reported in “Warnings for emergency responders kept from Area 51 workers” by Keith Rogers, Las Vegas Review-Journal, May 21.

Attorney Jonathan Turley, who represented the Groom Lake workers, told the Review-Journal that as a result of the latest revelations he is “looking at the possibility of renewed litigation related to Area 51.”

The Department of Defense budget request for 2007 includes about $30.1 billion in classified or “black” spending, according to a new analysis by the Center for Strategic and Budgetary Assessments.

“In real (inflation-adjusted) terms the $30.1 billion FY 2007 request includes more classified acquisition funding than any other defense budget since FY 1988, near the end of the Cold War, when DoD received $19.7 billion ($29.4 billion in FY 2007 dollars) for these programs,” wrote author Steven Kosiak.

See “Classified Funding in the FY 2007 Budget Request” (pdf) from the Center for Strategic and Budgetary Assessments.

The study was reported in “Classified military spending reaches highest level since Cold War” by Drew Brown, Knight-Ridder Newspapers, May 19.

Pressure to adopt “sensitive but unclassified” control markings on information that does not qualify for classification is growing, along with opposition to such controls, among some academic researchers who study terrorism-related topics. See “Scientific Openness: Should Academics Self-Censor Their Findings on Terrorism?” by Yudhijit Bhattacharjee, Science, May 19.

“The secrecy that has become such a hallmark of the Bush administration did not begin with Sept. 11, as the White House often suggests. It began in the earliest days of January 2001, as the administration was taking shape,” according to a National Public Radio account. See “From the Start, Bush White House Kept Secrets” by Don Gonyea, NPR Weekend Edition, May 21.