“In my professional opinion, the NSA domestic surveillance program is as blatantly illegal a program as I’ve seen,” said Prof. Harold Hongju Koh, dean of the Yale Law School, at a Senate Judiciary Committee hearing on February 28.

Others disagreed. “I believe that the inherent authority of the president under Article II, under these circumstances, permits the types of intercepts that are being undertaken,” said former DCI R. James Woolsey.

The opening statements from the February 28 hearing on “Wartime Executive Power and the NSA’s Surveillance Authority” may be found here.

The view that the NSA surveillance activity is illegal was elaborated in a legal memorandum that was presented to the Foreign Intelligence Surveillance Court last week by the Center for National Security Studies and the Constitution Project.

Also last week, Sen. Robert Byrd (D-WV) introduced legislation to establish “to investigate the instances of warrantless wiretapping and spying on U.S. citizens by the National Security Agency and other departments of Government.”

The constant administrative churning of the defense policy process has yielded several notable new Department of Defense directives and instructions, such as the following.

U.S. policy on handling classified NATO information is addressed in “United States Security Authority for North Atlantic Treaty Organization Affairs” (pdf), DoD Directive 5100.55, February 27, 2006.

Continuity of military operations “under all circumstances across the spectrum of threats” is prescribed in “Defense Continuity Plan Development” (pdf), DoD Instruction 3020.42, February 17, 2006.

An updated Instruction entitled “Technical Surveillance Countermeasures (TSCM) Program” (pdf) was issued by Under Secretary of Defense for Intelligence Stephen A. Cambone on February 22, 2006.

“I am increasingly concerned that the Senate Intelligence Committee is unable to carry out its critically important oversight and threat assessment responsibilities due to stifling partisanship that is exhibited through repeated calls by Democrats on the committee to conduct politically-motivated investigations,” wrote Senate Majority Leader Bill Frist in a March 3 letter (pdf) to Minority Leader Sen. Harry Reid.

“I agree with Senator Frist,” Sen. Reid replied, “the Republican-controlled Senate Intelligence Committee has been bogged down by partisanship.”

“When faced with strong evidence that the Bush Administration has misused intelligence…, time and again the Senate Intelligence Committee has ducked its responsibilities and refused to hold the Administration accountable. The recent record of the Republican-controlled committee is most notable for its abdication of authority and responsibility,” Sen. Reid said.

The Senate Intelligence Committee is scheduled to vote on March 7 on a proposal by Senator Rockefeller to conduct an investigation of the NSA warrantless surveillance activity. An investigation is favored by Democrats and some Republicans, but opposed by the Republican leadership.

“I don’t know anyone who wasn’t caught off guard by Hamas’ strong showing,” said Secretary of State Condoleezza Rice, referring to the landslide victory of the Islamic Hamas party in the January 25 Palestinian elections. Hamas won 76 out of 132 seats in the Palestinian legislature, compared to 43 seats for the ruling Fatah party.

“I’ve asked why nobody saw it coming and I hope that we will take a hard look, because it does say something about perhaps not having had a good enough pulse on the Palestinian population,” she told reporters on January 29.

It sounded like a confession of another failure of U.S. intelligence, having been stymied once again by the intricacies of Middle Eastern politics.

But despite Secretary Rice’s odd protestations, no one did a better job of tracking the growing popularity of Hamas than the State Department’s own intelligence analysts.

“When the parties [Hamas and Fatah] are directly compared, likely voters tend to see Hamas as more qualified to clean up corruption, resist occupation, and uphold societal values,” the analysts reported in a January 19, 2006, pre-election assessment (pdf) obtained by Secrecy News.

“A lack of hope in the peace process may also contribute to support for Hamas. Likely voters who have little or no hope that there will be a peaceful resolution to the conflict clearly prefer Hamas (30%) to Fateh (12%).”

Though they did not explicitly predict a Hamas victory, the State Department intelligence bureau reported on the steady rise in popular support for the Islamic party, which they said made it newly competitive with Fatah.

“A just-completed Office of Research survey in the Palestinian Territories shows a much closer race at the polls than some have predicted,” the assessment stated.

(The Office of Research is a component of the Bureau of the Intelligence and Research [INR], which is the State Department intelligence unit.)

“The likely success of Hamas at the polls reflects the long-term rise of public trust in the party. The proportion in the January survey who say they trust Hamas matches the historic high of 27%, first seen in spring 2005, and represents a 6 point increase since November.”

The State Department intelligence assessment is marked “For Official Use Only.” Do not use it for recreational purposes.

See “Hamas and Fateh Neck and Neck As Palestinian Elections Near,” January 19, 2006.

(“Fateh” is the preferred INR spelling for “Fatah.” Due to a typographical error, the first page of the January 2006 analysis is dated 2005.)

The State Department’s intelligence bureau is widely considered to be among the most independent-minded and competent members of the U.S. intelligence community. In 2002, it famously dissented from the erroneous view that Iraq had reconstituted its nuclear weapons program. Not coincidentally, it is also the least secretive of U.S. intelligence agencies.

In response to the controversy over the withdrawal of thousands of declassified historical records from the National Archives on purported national security grounds, the Archivist of the United States announced that such withdrawals would be halted, at least temporarily, while an audit and investigation of the matter is conducted.

Archivist Allen Weinstein declared a “moratorium” on the removal or reclassification of “any declassified records currently on the public shelves at the National Archives until the audit, conducted by the National Archives Information Security Oversight Office, is complete.”

See “Archivist of the United States Announces New Steps in Response to Withdrawal of Declassified Records from Open Shelves at the National Archives,” news release, March 2.

See also “Archivist Urges U.S. to Reopen Classified Files” by Scott Shane, New York Times, March 3.

Lists of radio frequencies assigned to the U.S. Air Force’s Civil Air Patrol (CAP) will henceforth be withheld from public disclosure, according to a January 2006 memorandum (pdf) from the CAP National Commander.

“It has come to our attention that the radio frequency assignments provided us by the USAF are considered sensitive information and require protection from unauthorized release,” wrote Maj. General Antonio J. Pineda.

“Such [information] must be removed from public access, such as on the Web, and may not be released to outside agencies without coordination,” he wrote.

“As we prepare for an increased role in Homeland Security, it is very likely we will encounter additional information requiring our protection.”

“A rigid stance on information security shows that we continue to be a professional partner in the defense of our nation,” he wrote.

“A rigid stance on information security,” of course, is the source and the driver of a whole set of other problems. But that is beyond the scope of this memo.

See “Protection of Radio Frequency Information,” US Air Force Civil Air Patrol, January 20, 2006.

Also in the sensitive but unclassified (SBU) category is the Department of Energy’s venerable “Unclassified Controlled Nuclear Information” (UCNI) marking.

Unlike most other SBU designations, UCNI has been defined with some specificity. Official guidelines (pdf) spell out exactly what is and what is not within its proper boundaries.

UCNI is also authorized by statute, not invented out of whole cloth, and it carries enormous financial penalties for those who disclose it without authorization. For these reasons, it will be a particular challenge to integrate UCNI policy into a uniform, government-wide policy on sensitive but unclassified information.

For official guidance on UCNI, see “Unclassified Controlled Nuclear Information, General Guideline GG-5,” Department of Energy, February 2004.

The intense and occasionally hyperbolic controversy that erupted in the late 1990s over alleged theft of U.S. nuclear weapons secrets by the People’s Republic of China is revisited in a newly updated report from the Congressional Research Service.

See “China: Suspected Acquisition of U.S. Nuclear Weapon Secrets,” updated February 1, 2006.

Coincidentally, a Chinese newspaper yesterday accused the United States of relentlessly seeking to acquire Chinese nuclear secrets.

“In fact, as early as 1955, from the moment China decided to develop atomic bombs, US intelligence has been doing everything it could, with whatever means necessary, to gather relevant secret information,” the newspaper article said, presumably correctly.

See “The United States Has Been Probing for China’s Nuclear Intelligence by Various Methods and Whatever Means Necessary” by Yu Sung, Zhongguo Tongxun She, February 28, 2006.

The Exon-Florio Act of 1988, which permits the President to block foreign takeover of certain types of U.S. companies on national security grounds, has been in the news lately in connection with the proposed acquisition of six U.S. ports by Dubai Ports World.

Some useful background on that statute is provided by the Congressional Research Service in “The Exon-Florio National Security Test for Foreign Investment,” updated February 23, 2006.

The substance of the Pentagon’s notion of “defense transformation” and the spin surrounding it are considered in another newly-updated CRS report.

“Some observers are concerned that the Administration’s regular use of the term transformation has turned the concept of transformation into an empty slogan or buzz-phrase.”

“Other observers are concerned that the Administration has invoked the term transformation as an all-purpose rhetorical tool for justifying its various proposals for DOD, whether they relate to transformation or not, and for encouraging minimal debate on those proposals by tying the concept of transformation to the urgent need to fight the war on terrorism.”

See “Defense Transformation: Background and Oversight Issues for Congress,” updated February 17, 2006.

The judge who presides over the prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly mishandling classified information has rejected a request from the Reporters Committee for Freedom of the Press to present an amicus curiae (“friend of the court”) brief on the profound constitutional concerns raised by the case.

“Defendants are ably and energetically represented by counsel experienced in all facets of the case, including the constitutional challenge,” wrote Judge T.S. Ellis, III.

“This prosecution is not the appropriate procedural context in which various elements of society should debate the constitutional validity or wisdom of [the Espionage Act],” the Judge wrote.

See his February 27, 2006 order.

More information on the Reporters Committee view of the case may be found here.

Parade Magazine, the Sunday supplement that is inserted into newspapers all over the country, turned its attention last week from celebrity romance and dieting tips to the problem of government secrecy.

“Concerns about overclassification cut across ideological and party lines,” according to Parade.

“Besides alienating Americans from their government, the result is that many debates today are little more than rhetoric and smears, because information explaining how a policy was decided isn’t available.”

The Parade article serves as a kind of overture to Sunshine Week, March 13-17, which is an initiative by media organizations and others to focus public attention on the defects of unchecked government secrecy.

See “Are They Taking Away Our Freedoms?” by Lyric Wallwork Winik, Parade, February 26.

Anyone can purchase a copy of the 1958 Department of Defense “Emergency Plans Book,” an early cold war description of response planning for a nuclear attack on the United States. It is available for sale through Amazon.com and elsewhere under the somewhat lurid title “The Doomsday Scenario” (Motorbooks International, 2002).

But don’t look for it at the National Archives, where author L. Douglas Keeney originally obtained it in 1997, because it is no longer there. It is among the thousands of government documents that have been reclassified and withdrawn from public access.

“When I returned in 2005 for another round of research in the Secretary of the Air Force Files, RG [record group] 340, the boxes were decimated,” Mr. Keeney told Secrecy News. “100% of the documents I retrieved 9 years ago were gone.”

In their place, he found a “withdrawal notice” (pdf) of the sort that has been quietly proliferating at the National Archives. An official stamp ironically certifies that the withdrawal notice itself is declassified and may be safely disclosed.

The documents in this case were removed from public access in 1997, near the beginning of the ongoing reclassification process that has undermined the integrity of the National Archives.

If it cannot be halted and reversed, bureaucratically-driven reclassification threatens to reduce the Archives to a mere repository of officially-sanctioned history.

“Those who control the past control the future, Orwell famously wrote in ‘1984’,” recalled Fred Kaplan in an article in Slate that supplied some of the back story of the reclassification initiative.

See “Secret Again: The absurd scheme to reclassify documents” by Fred Kaplan, Slate, February 23.

The continuing assault on history was also reported in “U.S. reclassifies government memos” by Andrea Mitchell, NBC News, February 24.

“This effort to stuff this harmless toothpaste back into the tube would be funny if it weren’t so emblematic of a disturbing new culture of government secrecy,” a Washington Post editorial opined. See “Classifying Toothpaste,” February 27.

Confronted by a government that seems intent on erecting unnecessary new barriers to public access, members of the public are not entirely without resources to oppose such barriers, and even to overcome them.

“Decrying secrecy, citizen groups fight back” is the thrilling headline of a story by reporter Aliya Sternstein in Federal Computer Week today (2/27/06) which explores the withdrawal of government information from the world wide web, and the public response.

“More federal agencies are taking data off the Web, while citizens seek ways to restore public access,” as described in the article.

“The concerted use of the Freedom of Information Act by public interest groups and their constituents” offers one way of recovering public access to official information that has been removed from government websites, advises law professor and librarian Susan Nevelow Mart in a new paper.

See “Let the People Know the Facts: Can Government Information Removed from the Internet Be Reclaimed?” (pdf), Law Library Journal, Volume 98, No. 1 (2006).