It is important to understand that there is no rigorous, consensual definition of what constitutes classified information. Instead, in a practical sense, classified information is whatever the executive branch says it is.

(A minority of classified information, such as nuclear weapons design information, is specified and protected by statute. The remainder, the large majority, is classified by executive order.)

In 1997, the Central Intelligence Agency declassified the total intelligence budget for that year ($26.6 billion). But intelligence budget figures from three, four and five decades earlier remain classified. Why? Because the CIA says so!

One might argue that it should be the other way around — budget figures from the remote past should be declassified while more recent figures should perhaps be classified. But such logic is foreign to CIA classification policy, and to the classification system as a whole.

By far the most sensitive government document Secrecy News has obtained in recent years is a January 2006 military manual that explains in nearly 200 pages of detail exactly how to use a particular type of weapon that is known to pose a significant terrorist threat.

If there is anything that should be classified in the interests of national security, this manual would seem to be it. Yet it is unclassified. Distribution is “unlimited.”

The conclusion that emerges from the chaos of government information policy is that the classification system is essentially an administrative tool used by the executive branch for its own internal purposes. It is a poor index of what is sensitive and what is not.

On February 16, Senate Intelligence Committee Vice Chairman Sen. Jay Rockefeller presented a proposal to investigate the National Security Agency warrantless surveillance program.

A copy of Sen. Rockefeller’s motion, outlining the scope of the proposed investigation, is here.

But Committee chairman Sen. Pat Roberts blocked a vote on the motion until March 7.

“If, by that time, we have reached no detailed accommodation with the Administration concerning the Committee’s oversight role, it is possible that the Committee may vote to conduct an inquiry into the program,” Sen. Roberts said.

“If we are prevented from fully understanding and evaluating the NSA program, our committee will continue its slide into irrelevance,” said Sen. Rockefeller.

“Like Senator Rockefeller, I will not sit idly by and allow the President’s possible breaking of the law to be swept under the rug,” said Sen. Robert Byrd in a February 17 floor statement.

“I am today announcing my intention to submit to the Congress legislation that will establish a nonpartisan, independent, 9-11-style commission to investigate and determine the legality of the President’s actions,” Sen. Byrd said.

“Selectively applied, the declassification process can become political and sleazy,” according to an editorial in the Buffalo News. See “Cheney misuses expanded powers,” February 18.

The spectrum of opinion and analysis on the Vice President’s declassification authority was surveyed in “Cheney’s Secret Powers” by Dan Froomkin, White House Briefing, February 17.

“Another House Republican committee chairman has joined criticism of the Congressional Research Service for its legal analysis of the administration’s program of counterterrorist electronic surveillance.” See “Lawmaker hits wiretap memo” by Shaun Waterman, UPI/Washington Times, February 20.

The American Bar Association (ABA) adopted a resolution (pdf) this week calling on the Attorney General to clarify that designating a record as “sensitive but unclassified” does not provide a legal basis for withholding that record.

The ABA also called for establishment of a standardized policy for employing the “sensitive but unclassified” (SBU) marking.

The increasingly common SBU designation has become problematic because SBU records are neither fish nor fowl — neither formally classified nor publicly available — and there are no commonly agreed upon standards for invoking the term.

“Agencies allow the marking of many types of records as SBU. This patchwork of definitions for safeguarding such records contributes to confusion regarding whether information should be withheld under FOIA. Such confusion is exacerbated by the fact that the term SBU is not derived from an existing FOIA exemption,” according to the ABA.

“Our Recommendation seeks the issuance of public guidance from the U.S. Attorney General, clarifying that the SBU classification does not constitute grounds for withholding information that would otherwise be disclosed under FOIA… Such a policy directive would help to reduce instances of excessive withholding caused by the confusion and lack of oversight concerning this designation.”

See the ABA Resolution (adopted on February 13), with an attached informational report (which was not formally adopted).

As it happens, a government-wide effort to standardize SBU policy is already underway, as previously reported (Secrecy News, 12/20/05).

Efforts by the Department of Homeland Security to assert itself as a viable member of the U.S. intelligence community have yielded a new strategic plan for homeland security intelligence and a management directive organizing the Department’s intelligence activity.

The new strategic plan is a handsome document, but largely devoid of significant content.

See “DHS Intelligence Enterprise Strategic Plan,” January 2006 (3.3 MB PDF file).

And see “Intelligence Integration and Management,” DHS Management Directive 8110, January 30, 2006.

Relatedly, “DHS Has Not Implemented an Information Security Program for Its Intelligence Systems,” according to the title of a new DHS Inspector General report (flagged by BeSpacific.com).

Several recently updated reports of the Congressional Research Service deal with the People’s Republic of China, including the following.

“China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues,” updated January 31, 2006.

“China’s Economic Conditions,” updated January 12, 2006.

“China’s Trade with the United States and the World,” updated January 23, 2006.

“China-U.S. Relations: Current Issues and Implications for U.S. Policy,” updated January 20, 2006.

The use of commercial satellite photographs to identify an underground Chinese submarine base was reported in the FAS Strategic Security Blog on February 16.

In discussing the Vice President’s declassification authority yesterday, we should have noted that some categories of information are protected by statute, not just by executive order. Such information, including intelligence sources and methods that are protected by the National Security Act, cannot simply be declassified by presidential (or vice presidential) fiat.

The point was made in “The White House’s maestro of secrets,” Roanoke Times, February 17.

The AIPAC case, involving the use of the Espionage Act to prosecute the receipt (and not merely the disclosure) of classified information, was viewed from Israel in “Washington: Lobbying for freedom of speech” by Nathan Guttman, Jerusalem Post, February 16.

“Criticism rained down on Vice President Dick Cheney this week for failing to disclose his hunting accident to the public for a day, but advocates of open government said the episode was nothing new. For five years, they said, Cheney has led the Bush administration’s efforts to curtail the flow of government information.”

See “Activists assert secrecy is Cheney’s hallmark” by Charlie Savage, Boston Globe, February 17.

The records of two confirmation hearings conducted by the Senate Select Committee on Intelligence have just been published: that of Benjamin A. Powell to be General Counsel in the Office of the Director of National Intelligence, and that of John S. Redd to be Director of the National Counterterrorism Center.

Each contains some interesting details about the nominees, and some useful questions for the record presenting their views of their respective positions (in the large PDF versions here [Powell] and here [Redd] only).

The hearing record for Mr. Powell, the new ODNI General Counsel, also features (in the PDF version) a reprint of a technical paper he co-authored in the journal “Computers and Chemical Engineering” entitled “Adaptive Networks for Fault Diagnosis and Process Control.”

More and more Americans of all political stripes are concerned that the Bush Administration has exceeded its legal authority by conducting intelligence surveillance outside of what the law permits.

Anxiety over illegal surveillance is heightened by the prospect that an ideologically subservient Congress may not insist on the primacy of law, but will simply defer to the Administration, or authorize whatever the White House wishes.

“The administration’s stance that warrantless surveillance by the National Security Agency targeting American citizens on American soil is a legal exercise of the president’s inherent powers as commander in chief, even though it violates the clear language of the 1978 Foreign Intelligence Surveillance Act” is a “monarchical doctrine,” wrote columnist George Will today.

“Monarchical” is a curse word in conservative thought, and for an American conservative monarchy is a provocation to revolutionary opposition.

“We cannot continue to claim we are a nation of laws and not of men if our laws, and indeed even the Constitution of the United States itself, may be summarily breached because of some determination of expediency or because the President says, ‘Trust me’,” said Sen. Robert Byrd in a Senate floor statement yesterday.

“I plead with the American public to tune in to what is happening in this country. Please forget the political party with which you may usually be associated and, instead, think about the right of due process, the presumption of innocence, and the right to a private life.”

“This President, in my judgment, may have broken the law and most certainly has violated the spirit of the Constitution and the public trust,” Sen. Byrd said.

In an unusual rebuke, the American Bar Association this week found it necessary to urge President Bush to comply with the law.

“The American Bar Association calls upon the President to abide by the limitations which the Constitution imposes on a president under our system of checks and balances and respect the essential roles of the Congress and the judicial branch in ensuring that our national security is protected in a manner consistent with constitutional guarantees.”

See the report of the American Bar Association Task Force on Domestic Surveillance in the Fight Against Terrorism.

“Is it your view that a Vice President has the authority to declassify information?” Vice President Cheney was asked yesterday by Fox News’ Brit Hume.

“There is an executive order to that effect,” replied the Vice President.

This was a simple answer to a straightforward question, but the matter is actually a bit more complicated.

The executive order in question is E.O. 13292 on classified national security information, issued by President Bush in March 2003.

It states in section 1.3 that “The authority to classify information originally may be exercised only by: (1) the President and, in the performance of executive duties, the Vice President; (2) agency heads and officials designated by the President in the Federal Register…”

Remarkably, the phrase “and, in the performance of executive duties, the Vice President,” which dramatically elevates the Vice President’s classification authority to that of the President, was added to the executive order in 2003.

Prior to that, the Vice President only had classification authority comparable to that of an agency head, having been delegated such authority in a 1995 presidential order.

So much for classification authority. What about declassification?

Declassification authority is defined in Section 6.1(l) of E.O. 13292. It is granted to: “(1) the official who authorized the original classification…; (2) the originator’s current successor in function; (3) a supervisory official of either; or (4) officials delegated declassification authority in writing by the agency head or the senior agency official.”

So the Vice President has authority to declassify anything that he himself classified. He also clearly has authority to declassify anything generated in the Office of the Vice President, which he supervises.

But is the Vice President, like the President, “a supervisory official” with respect to other executive branch agencies such as the CIA? Did the 2003 amendment to the executive order which elevated the Vice President’s classification authority also grant him declassification authority comparable to the President’s?

“The answer is not obvious,” said one executive branch expert on classification policy.

The Department of Energy expects to complete the declassification review of 12.7 million pages of its 25 year old historically valuable permanent records by December 31, 2006, the Department advised the Information Security Oversight Office last month.

The January 2006 Department of Energy Declassification Plan was obtained under the Freedom of Information Act by Michael Ravnitzky. A copy is posted here (1.1 MB PDF file).

“Since the Sept. 11 attacks, the number of insiders alleging wrongdoing in government – either through whistle-blower channels or directly to the press – has surged, as have reprisals against them.”

See “A surge in whistle-blowing … and reprisals” by Gail Russell Chaddock, Christian Science Monitor, February 16, 2006.

“If the Bush administration’s interpretation of espionage law is upheld, then everyone is breaking the law, all the time.” That’s the conclusion that emerges from the Bush Administration’s unprecedented use of the Espionage Act to prosecute non-government employees for mishandling classified information.

See “You’re a Spy” by Fred Kaplan, Slate, February 15, 2006.

Jack Shafer sorts out what appeared to be an early post-9/11 disclosure of warrantless domestic surveillance, and takes a poke at DCIA Porter Goss for flogging discredited leak allegations.

See “NSA Scoop or Just Bad Writing?” by Jack Shafer, Slate, February 15, 2006.