The Centers for Disease Control and Prevention (CDC) has updated and revised its policy on “sensitive but unclassified” (SBU) information, the increasingly common twilight category of information that is neither classified nor publicly released.

“Marking information SBU does not automatically qualify it for a public release exemption,” the CDC policy observes. (There is no “SBU exemption” to the Freedom of Information Act.)

On the other hand, “the absence of the SBU or other related marking does not necessarily mean the information should be publicly released.”

“Therefore, all information should be reviewed and approved prior to its public release,” the CDC instructs.

A copy of the revised SBU policy was posted on the CDC intranet and obtained by Secrecy News.

The Government Accountability Office will publish a major report on the use of Sensitive But Unclassified control markings next month.

Responding to a February 21 New York Times story indicating that thousands of declassified documents had been reclassified by executive branch agencies and removed from public access in questionable circumstances, the National Archives and Records Administration (NARA) announced yesterday that an official investigation into the matter was underway.

An audit is being conducted by the Information Security Oversight Office, a NARA component, to determine the number of documents that have been withdrawn, the authorization and justification for the withdrawal, and the appropriateness of the reclassification action.

(Agencies dispute that any documents have been “reclassified.” Instead, they contend, the withdrawn records were never properly declassified and so have remained classified all along.)

“The audit will result in a public report designed to provide the greatest feasible degree of transparency to this classification activity,” NARA said. “It is anticipated that the report will be available within the next 60 days.”

See “The National Archives Responds to Reclassification of Documents,” NARA news release, February 22.

The reclassification issue is more than a minor bureaucratic glitch. It has become a threat to the integrity of the entire national security classification and declassification program.

It would not be surprising if there were isolated cases of mistaken declassification. But because many of the now-withdrawn documents are widely available in the public domain, on the National Security Archive web site and elsewhere, anyone can see that the authority to reclassify and remove them has been improperly exercised in many cases. Government officials have admitted as much.

“If those sample records [reviewed by the Information Security Oversight Office] were removed because somebody thought they were classified, I’m shocked and disappointed,” ISOO Director Bill Leonard told the New York Times. “It just boggles the mind.”

But if records were mistakenly withdrawn in this case, what confidence can anyone have that classification authority is being properly invoked, for example, in the ongoing review of declassified historical records conducted by the Department of Energy? That review, conducted under the 1999 Kyl/Lott amendment, has also led to the removal of many thousands of DOE and other agency records that supposedly contain classified nuclear weapons information.

And what about Bush Administration classification of present-day records, which has accelerated to a record high level? How credible are those classification actions?

Finally, what is the role of the National Archives? Is NARA the guardian of public access to historical records? Or has it become a passive accomplice to the classification abuses of other agencies?

Rep. Christopher Shays (R-CT) announced that his House Government Reform subcommittee on National Security will hold a third hearing on classification policy on March 14.

Could the National Security Archive be prosecuted under the Espionage Act for publishing historical documents that U.S. intelligence agencies now say are classified?

Could Secretary of State Condoleezza Rice be detained for continuing to publish historical intelligence records on the State Department web site that the CIA has flagged as classified?

Could thousands of historians and librarians around the country be arrested for retaining and circulating volumes of the State Department’s Foreign Relations of the United States (FRUS) series that are now considered to contain classified documents?

These seem to be silly questions.

And yet the theory of the Espionage Act that has been adopted by the government in its prosecution of two former officials of the American Israel Public Affairs Committee (who are not charged with espionage) may extend even to silly cases such as these.

The Espionage Act’s prohibitions on the unauthorized retention and transmission of national defense information apply to “whoever” may violate them, the government insisted in a January 30 motion.

“Whoever means, ‘no matter who’,” the government contended. “The statute covers ‘anyone’.”

Until now, the Espionage Act has never been interpreted this broadly, and for good reason. Using the Act to penalize the public receipt and distribution of government information leads to absurd conclusions.

The Department of Justice described its progress towards meeting the December 31, 2006 deadline for automatic declassification of 25 year old historical records in an updated Declassification Plan submitted to the Information Security Oversight Office last year.

Significant exemptions to the automatic declassification program have been sought by the FBI and the DoJ Office of Intelligence Policy and Review. Otherwise some 30 million pages of DoJ records have been subjected to declassification review in recent years.

A copy of the Plan was obtained under the Freedom of Information Act by Michael Ravnitzky.

See “2003 Declassification Plan (Revised October 27, 2005),” U.S. Department of Justice.

Some notable, newly updated reports of the Congressional Research Service, obtained by Secrecy News and published on the Federation of American Scientists web site, include the following:

“Conventional Warheads For Long-Range Ballistic Missiles: Background and Issues for Congress,” updated February 13, 2006.

“U.S. Nuclear Weapons: Changes in Policy and Force Structure,” updated January 27, 2006.

“U.S. Armed Forces Abroad: Selected Congressional Roll Call Votes Since 1982,” updated January 27, 2006.

“Interrogation of Detainees: Overview of the McCain Amendment,” updated January 24, 2006:

“Contrary to conventional wisdom, it is not always advantageous to engage in thorough conscious deliberation before choosing,” according to a paper published in the latest issue of Science magazine.

Unconscious thought, defined as “thought or deliberation in the absence of conscious attention directed at the problem,” can sometimes yield superior results, University of Amsterdam psychologists found. And they suggest that the same effect can be “generalize[d] to other types of choices — political, managerial, or otherwise.”

See “On Making the Right Choice: The Deliberation-Without-Attention Effect” by Ap Dijksterhuis, et al, Science, vol. 311, 17 February 2006 (free abstract).

So does that mean that the processes of political deliberation should be restructured to place greater emphasis on intuition and “hunches”? Not exactly.

The strengths and limits of “unconscious thought” were considered by author Sue Halpern in a review of Malcolm Gladwell’s book “Blink” in the New York Review of Books (April 28, 2005).

“Intuition is often understood as an antithesis to analytic decision-making, as something inherently nonanalytic or preanalytic,” Halpern quotes neuropsychologist Elkhonon Goldberg. “But in reality, intuition is the condensation of vast prior analytic experience; it is analysis compressed and crystallized.”

In other words, the productivity of “unconscious thought” is probably dependent upon all of the conscious thought, analysis and experience that precedes it.

(Making a similar point, a favorite teacher once advised that “It is one thing for Aldous Huxley to take LSD,” since Huxley was immensely learned. “It is something else for you to do it.”)

“The possibility of unconscious thought (as well as the term) was explicitly used for the first time by Schopenhauer,” write Dijksterhuis et al in their new Science paper.

The German philosopher Arthur Schopenhauer (1788-1860) was also credited by Freud as a forerunner of psychoanalysis.

“Schopenhauer argued at length, and with a psychological insight which was altogether unprecedented, that empirical evidence points to the conclusion not only that most of our thoughts and feelings are unknown to us but that the reason for this is a process of repression which is itself unconscious,” wrote Bryan Magee in his magnificent “The Philosophy of Schopenhauer” (Oxford, rev. 1997).

In several respects Schopenhauer was an unsavory character. He had a bad case of anti-semitism which earned him a favorable mention in Hitler’s Mein Kampf.

But Magee does for Schopenhauer what the late Walter Kaufmann did for Nietzsche several decades ago — he makes him intelligible to the non-specialist reader, as well as interesting and, quite unexpectedly, important.

Magee served briefly in British intelligence (to return to more familiar territory) and wrote a quasi-existentialist spy novel called “To Live in Danger” (1960, long out of print) that is not entirely bad.

Several reports of the Congressional Research Service on nuclear weapons policy have recently been updated, including the following:

“Nuclear Weapons: Comprehensive Test Ban Treaty,” updated January 23, 2006.

“North Korea’s Nuclear Weapons Program,” updated January 17, 2006.

“Nonstrategic Nuclear Weapons,” updated January 13, 2006.

“Nuclear Arms Control: The U.S.-Russian Agenda,” updated January 3, 2006.

The Washington Post took further note today of the potentially severe implications for the press of the controversial prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC).

“The Bush administration said that journalists can be prosecuted under current espionage laws for receiving and publishing classified information but that such a step ‘would raise legitimate and serious issues and would not be undertaken lightly,’ according to a court filing made public this week,” the Post reported.

See “Press Can Be Prosecuted for Having Secret Files, U.S. Says,” by Walter Pincus, Washington Post, February 22.

U.S. military and intelligence agencies have assigned personnel to review and reclassify declassified historical records at the National Archives where they have withdrawn thousands of records from public access.

The seven year old secret program was reported today on the front page of the New York Times.

See “U.S. Reclassifies Many Documents in Secret Review” by Scott Shane, New York Times, February 21.

A detailed examination of the background and conduct of the reclassification program was prepared by historian Matthew M. Aid and posted on the web site of the National Security Archive today.

The Archive also posted several documents that have been withdrawn from public access under the secret review program.

An effort by historians is underway to enlist the Information Security Oversight Office and congressional oversight committees to check the unsupervised reclassification activity.

See “Declassification in Reverse: The Pentagon and the U.S. Intelligence Community’s Secret Historical Document Reclassification Program,” National Security Archive, February 21.

“Worried that sensitive information may have been improperly declassified in the late 1990s, government agencies took to scrubbing public records at the National Archives and elsewhere, pulling untold thousands of public records for ‘review’ and possible reclassification,” I wrote last March in Slate.

“Many 30- or 50-year-old archival collections are a shadow of what they were just a few years ago.”

A National Archives official challenged the accuracy of this claim at the time, but it now appears to be validated.

See “The Age of Missing Information” by Steven Aftergood, Slate, March 16, 2005.

The number of earmarks included in congressional appropriations bills, directing that money be spent in a particular and often self-interested way, has multiplied over the past decade, according to a study by the Congressional Research Service.

The CRS study has been widely cited in the press, but has not been readily available online. Now it is.

See “Earmarks in Appropriation Acts: FY1994, FY1996, FY1998, FY2000, FY2002, FY2004, FY2005,” (pdf), January 26, 2006.

With the creation of the Department of Homeland Security in 2002, the U.S. intelligence community gained its fifteenth member.

Last week, the Drug Enforcement Administration (DEA) became the sixteenth member.

“This designation does not grant DEA new authorities, but it does formalize the long-standing relationship between the DEA and the IC,” according to a February 17 news release from the Office of the Director of National Intelligence.

In its prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), the Bush Administration is staking out new legal territory, arguing that it is a crime for a reporter or any other non-government employee who does not hold a security clearance to receive and communicate classified information.

“The government respectfully submits that an ‘ordinary person exercising ordinary common sense’ […] would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense,” according to the government’s January 30 response (pdf) to a motion to dismiss (pdf) filed by the AIPAC defendants.

This is a novel view of the press and the American public.

The idea that the government can penalize the receipt of proscribed information, and not just its unauthorized disclosure, is one that characterizes authoritarian governments, not mature democracies.

The government bases its position on a narrow reading of the Espionage Act of 1917 (18 U.S.C. 793), which prohibits certain communications of national defense information by “whoever” may do so.

“There plainly is no exemption in the statutes for the press, let alone lobbyists like the defendants,” the government said.

Prosecution of a member of the press “would raise legitimate and serious issues and would not be undertaken lightly,” the government volunteered. But the AIPAC defendants “are not members of the press and enjoy no constitutional rights reserved to the press.”

Of course, anyone who commits espionage should expect to be prosecuted for that crime. But that is not the issue in the AIPAC case, where the government seeks to penalize the non-espionage transmission of information that it considers classified.

“Whether a defendant was an agent of a foreign government is not relevant. The statute applies to any person, whether they are acting as an agent, or acting on their own,” the government said.

This is precisely what makes the AIPAC case a matter of broad public consequence. The prosecution’s expansive interpretation of the Espionage Act potentially applies to every American, indeed every person in the world (“anyone”), not just accused spies.

“The fact that the defendants were not agents of Israel, or any foreign nation, does not negate any element of the offense, and cannot be exculpatory.”

See “Government’s Consolidated Responses to Defendants’ Pretrial Motions,” United States of America v. Steven J. Rosen and Keith Weissman, filed January 30, 2006.

A closed hearing on the motions was held on February 16 and will resume on March 2.