At its best, the State Department’s Foreign Relations of the United States (FRUS) series serves as a driver of declassification, propelling it farther and faster than it would otherwise go.  But it’s not always at its best.

In 1992, Congress enacted a law concerning FRUS that represented one of only a couple of continuing statutory requirements to conduct declassification of official records.  (The Atomic Energy Act, which also imposes continuing declassification requirements, is the other statute that comes to mind.)  The 1992 law directed the State Department to publish FRUS in such a way as to provide “a thorough, accurate, and reliable documentary record of major United States foreign policy decisions” and to do so “not more than 30 years after the events recorded.”  This implied an ongoing obligation to declassify historical records in a timely fashion.

The State Department has never met the statutory 30 year deadline.  Nor has Congress effectively required that it do so.  In fact, Congress has not even conducted regular oversight of the FRUS program, which has experienced significant turmoil in recent years.

But the statute has not been altogether forgotten or ignored, either.  In numerous areas of historical research, FRUS represents the vanguard of declassification, opening up otherwise inaccessible collections for the first time.  This is notably true in the latest FRUS volume on “National Security Policy” published last week.  It includes previously unreleased material declassified specifically for FRUS, “some of it extracted from still-classified documents.”

On the other hand, because the FRUS declassification process is often so slow and prolonged, it can produce erratic and misleading results.  The latest FRUS volume began a declassification review in 2005 that was not completed until 2011.  This created the awkward circumstance that information which may have been properly classified in 2005 could be withheld from release in FRUS in 2011 despite the fact that the information had ceased to be classified in the interim.

Thus, the new FRUS volume included a redacted version of President Nixon’s 1971 National Security Decision Memorandum 128 on the FY 1972-1974 Nuclear Weapons Stockpile (Document 196).  “The President approves a total stockpile of [deleted] for the end of FY 1973 and a total stockpile [deleted] for the end of FY 1974,” according to the FRUS version which treats the stockpile numbers as still-classified information.

This version of the document fails to recognize that the stockpile totals for 1973 and 1974 (among other years) were declassified by the Secretary of Defense and the Secretary of Energy in May 2010.

Yet this information cannot be found in the new FRUS volume, suggesting a need for improved coordination of the declassification process to make it even more productive.

During fiscal year 2011, there were 143 new secrecy orders imposed on patent applications under the Invention Secrecy Act of 1951, the U.S. Patent and Trademark Office reported this week.  This represents an increase of 66% over the year before, and it is the highest number of new secrecy orders in a single year since 1998.

The Invention Secrecy Act authorizes the government to block the disclosure of a patent application if it contains information that might be “detrimental to the national security.”  Remarkably, this secrecy authority extends even to privately-generated inventions that the government does not own or control.

According to USPTO statistics obtained by the Federation of American Scientists under the Freedom of Information Act, a total of 5,241 patent secrecy orders were in effect at the end of FY 2011, including both new secrecy orders and those from previous years that had been renewed.  This is the highest annual total since 1995.

An explanation for the increase in secrecy orders was not reported.  Nor do the statistics themselves include anything like a “figure of merit” that would confirm their validity or their legitimacy.

The use of secrecy orders has sometimes been questioned, particularly when they extend to inventions that are not clearly limited to military or other national security applications.  Forty years ago, government agencies directed that advanced renewable energy technologies should be reviewed for possible restriction under the Invention Secrecy Act.  These included photovoltaics that were more than 20% efficient and energy conversion systems with efficiencies “in excess of 70-80%.”  (“Invention Secrecy Still Going Strong,” Secrecy News, October 21, 2010)

To be “detrimental to national security” — which is the threshold for a secrecy order under the Invention Secrecy Act — is a lower standard than to cause “damage to national security,” which is the criterion for national security classification.

Government reviewers may recommend imposing a secrecy order on a patent application in which the government has a “property interest” (i.e. the government owns or supported the development of the invention) whenever disclosure of the application “might be detrimental to national security,” according to a 2010 directive from the Department of Defense.  However, if the government does not have a property interest in the invention, then reviewers can only impose a secrecy order if disclosure “would be detrimental to national security,” a more demanding standard.   But the term “detrimental” was not further defined and the precise scope of the review process is not publicly known.

It has been years since Congress conducted investigative oversight of the invention secrecy program.  An informative series of hearings entitled “The Government’s Classification of Private Ideas” was held by the House Committee on Government Operations in 1980.  Extensive excerpts from the published hearing volume are posted here.

“The United States is the world’s largest candy consumer,” reported an article yesterday in the online Christian Post (“Halloween Treats Can Be Tricky for Parents,” October 19).  And that may well be true.

But the article went on to state that the U.S. spent “more than $8.8 billion on various sweets in 2009, according to the Information Security Oversight Office.”  That is a dizzying misunderstanding.

The Information Security Oversight Office (ISOO), led by director John P. Fitzpatrick, is the government agency responsible for oversight of the national security classification system.  It does not gather data on candy consumption.  (As far as we know.)  The $8.8 billion figure — which must be far more than Americans actually spend on candy [not so; see correction below] — was presented in ISOO’s 2009 report on security classification costs as the total cost within government (excluding industry) for protecting classified information.

In 2010, the annual classification cost figure reported by ISOO reached $10.17 billion.

Update / Correction: It appears that Americans spend even more on sweets than on secrecy, including $13 billion per year on chocolate alone, according to the California Academy of Sciences (h/t Jameel Jaffer). And the National Confectioners Association reported (.ppt) retail candy sales of $29.3 billion in 2009.

“I would be remiss if I did not express my concern over this Administration’s inexplicable failure to fully appoint and staff the privacy oversight board that we created as part of our 2004 act [on intelligence reform],” said Sen. Susan Collins (R-ME) at a hearing last week.

She was referring to the Privacy and Civil Liberties Oversight Board (PCLOB) that was established by Congress to independently oversee the conduct of information sharing within government and to ensure the protection of privacy and civil liberties interests.

“I am truly baffled by the Administration’s slowness in this regard because it is an important check as we seek to expand information sharing,” Sen. Collins said on October 12.

A coalition of public interest groups recently asked the President to complete the process of nominating members to the PCLOB.  “We urge the administration not to delay any further in nominating individuals for the remaining three slots on the Board, so that we may proceed to Senate confirmation and finally allow the PCLOB to begin its important work,” they wrote in an August 25 letter to the President.  (Two nominees to the Board, James X. Dempsey and Elisebeth Collins Cook, were named by President Obama in December 2010.)

Background on development of the Board was provided by the Congressional Research Service in “Privacy and Civil Liberties Oversight Board: New Independent Agency Status.”

The White House has also lagged in appointing five new members to the nine-member Public Interest Declassification Board, as the terms of its previous nominees have expired.  The four remaining PIDB members listed on the PIDB website are congressional appointees.

The PIDB was directed by the White House in 2009 to help “design a more fundamental transformation of the security classification system.”  But the PIDB has not yet reported its recommendations, and the loss of its White House-appointed members will tend to complicate the completion of that task.

“It is not an easy or fast process to find those with the appropriate background willing to serve (to include securing a clearance, etc.),” said one official, who added that “vacancies have been a challenge for the PIDB from the start.  I am not sure it has ever been without a vacancy.  While this is not without consequence, the Board has nonetheless remained balanced and effective.”

The National Geospatial-Intelligence Agency (NGA) hired 600 to 700 new employees each year between 2005 and 2008, newly released budget documents indicate.  Still, “the coming wave of retirement… presents significant risks that the program will lose valuable institutional knowledge and critical skills and capability.”

These observations were presented in NGA’s annual budget justification materials for fiscal years 2009, 2010 and 2011 (pdf).  Unclassified excerpts of the budget documents were released by NGA last week in response to Freedom of Information Act requests from the Federation of American Scientists.

NGA is an intelligence agency that provides all manner of imagery, mapping and other “geospatial intelligence” (GEOINT) products for national security as well as other applications.  It is funded through the National Intelligence Program (NIP) and also through the Military Intelligence Program (MIP).

NGA products “support mission planning, mapping, environmental monitoring, urban planning, treaty monitoring, safe navigation, management of natural resources, homeland defense planning, emergency preparedness, and responses to natural and manmade disasters worldwide,” the budget documents say.

Only a fraction — perhaps 10% or so — of the classified NGA budget documents survived the declassification process and were released under FOIA.  Some of the coherent themes that emerge from the declassified documents include the transition to a new Agency headquarters at Fort Belvoir, which was completed last year, and the continuing integration of commercial satellite imagery into the NGA product line.  The Agency’s classified programs and activities (and spending levels) were not disclosed.

But many unfamiliar fine details of Agency operation and management were described.  The National GEOINT Committee was established as an Intelligence Community body chaired by NGA to promote cross-discipline collaboration on GEOINT issues.  Beginning in FY 2010, a program or process called “LEAR JET” was introduced as “a CI [counterintelligence] network monitoring tool to combat the cyber insider threat.”  And so on.

These budget justification materials are the first such documents to be released by NGA.  The move invites the question:  Why did the Agency release them?  (This in turn is a subset of a broader question:  Why and how does secrecy policy ever change?)

In this case, several factors leading up to release can be identified.  First, there was a “demand” for the documents; they would not have been spontaneously released.  Second, the Agency might have attempted to withhold them anyway, but a ruling by Judge Reggie B. Walton in a 2006 lawsuit against the National Reconnaissance Office found that such documents are subject to the FOIA.

But even that might not have been enough without an indispensable measure of good faith on the part of the Agency.  “NGA wants to make it easy for the public to understand who we are,” said NGA Director Letitia Long earlier this month.

U.S. intelligence agencies are anticipating budget reductions of billions of dollars, said Director of National Intelligence James Clapper yesterday.  He said he had just submitted a draft budget to OMB (presumably for FY 2013) that involved “double digit” cuts to the intelligence budget over ten years.  See “U.S. Spies Facing Tens of Billions in Budget Cuts” by Sharon Weinberger, Wired Danger Room, October 17.

“In the last 10 years,… all we had to do essentially was preside over handing out more money and more people every year,” DNI Clapper told a joint hearing of the House and Senate Intelligence Committees last month.

But “now we’re in a ‘we’re-running-out-of-money-so-we-must-begin-to-think’ mode,” he said.  “I think that is serving as the stimulus, if you will, to do some more creative thinking. I think this would do wonders in terms of saving money, efficiency, and promoting integration.”

“Everything we do in intelligence… is not of equal merit. Some things are more valuable than others, particularly as we look to the future. I think it’s very important to try to protect that valuable and most valuable resource we have, which is our people. We must continue some way of hiring every year, which we didn’t do in many cases during that seven-year hiatus period [in the 1990s]. We must try to sustain healthy R&D for the future. And I think we have to be rather cold-hearted and objective about the real contribution the various systems make. So that’s kind of the approach we’re going to take,” DNI Clapper told Congress last month.

“I don’t want anyone to be under the mistaken impression that we are going to sustain all the capabilities we have today, because we’re not,” he said.

Updated below

A court ruling that interpreted the term “national defense information” expansively to include unclassified, non-governmental information could open the door to a new series of anti-leak prosecutions under the Espionage Act, warned a petition that was filed in the Ninth Circuit Court of Appeals this week.

There is no statute that outlaws the mishandling of “classified information” generally.  That term is not used in the Espionage Act (18 USC793), which instead prohibits the unauthorized disclosure and transmission of information “relating to the national defense.”  To fall within the scope of the Espionage Act, information must pertain to the national defense and, previous court rulings have explained, it must also have been “closely held by the United States government.”  In practice, this limitation has almost always meant that only classified U.S. government information can be subject to the Espionage Act.

But in the case of Dongfan Greg Chung, who was convicted on charges of economic espionage, a court ruled (and an appeals court last month upheld) that Chung would be sentenced under the guideline for “gathering national defense information” even though none of the information he handled was classified or even held by the government.

“For the first time in any reported case, the panel decision construes the phrase ‘national defense information’ [in the sentencing guideline] to include unclassified material produced by, and in the possession of, a nongovernmental entity,” wrote attorney John D. Cline in an October 10 petition for rehearing.  “If permitted to stand, the panel decision will dramatically expand the scope [of this sentencing guideline].”

Furthermore, “The decision logically extends to the parallel language (‘relating to the national defense’) of [18 USC 793] as well, and it thus invites prosecutions under the Espionage Act for mishandling unclassified, nongovernment information, as long as that information has some bearing on the national defense and has not been made public,” wrote Mr. Cline, an experienced litigator of national security cases.

In affirming Mr. Chung’s conviction, an appeals court last month said the National Defense Information guideline was applicable in this case.  “Defendant [Chung] gathered and gave to Chinese officials nonpublic information related to the X-37 space vehicle, the Delta IV Rocket, the F-15 Fighter, and the Chinook Helicopter.  When transmitting that secret information, which related to the national defense, Defendant had the intention to advantage China,” said the September 26 appeals court ruling (appended to the Petition).

But that description “is wrong in two crucial respects,” Mr. Cline argued.  “First, most of the material to which the panel refers was not ‘secret’ in any respect, and none of it constituted a government secret.  None of the material was classified at the Secret (or any other) level, nor was there evidence that it was otherwise ‘closely held by the United States government’.”  (Moreover, “the record contains no evidence that Chung ‘transmitted’ any ‘secret’ material to China,” he wrote.)

“Every reported decision applying [the national defense information sentencing guideline] has involved classified information, as has virtually every § 793 [Espionage Act] prosecution for the last sixty years,” the petition said.  “The panel decision marks a sharp and unjustified departure from this unbroken line of authority interpreting [the sentencing guideline] and § 793.”

The court’s expanded interpretation of “national defense” information “requires correction by the en banc Court, before the government seizes on it as a basis to expand the scope of the Espionage Act and the harsh sentencing guidelines that accompany it.”

“The issue has particular significance now,” the petition stated.  “The government has recently launched a spate of § 793 prosecutions against persons inside government who allegedly leaked classified information to reporters.  That use of the Espionage Act is itself controversial.  Armed with the panel decision, however, the government can now use § 793 and its accompanying sentencing guidelines to prosecute nongovernment persons who disclose (or even have unauthorized possession of) nongovernment, unclassified material, as long as a grand jury concludes that the person acted ‘willfully,’ the material is nonpublic, and it has some relationship to the national defense.”

“If such a dangerous and unprecedented expansion of the Espionage Act… is to be undertaken, Congress and the Sentencing Commission should do so — not the courts,” the petition concluded.

Update: The government filed its opposition on November 22, and on December 16 the Court of Appeals denied the petition.

The DNI Open Source Center produced a report this month profiling Huawei Technologies Co. Ltd., China’s largest telecommunications company.  See “Huawei Annual Report Details Directors, Supervisory Board for First Time,” October 5, 2011.

The report is based primarily on Huawei’s own website, which released new details earlier this year about the company’s management team.  “The release of this information may be intended to counter media accusations that the company lacks transparency,” the OSC said.

The OSC profile of Huawei was reported in “Chinese Telecom Firm Tied to Spy Ministry” by Bill Gertz, Washington Times, October 11.

The Open Source Center is a component of the Office of the Director of National Intelligence and is managed by the Central Intelligence Agency.  Although the Huawei report is unclassified and derived exclusively from public sources, the CIA does not permit public access to this report or similar OSC products on an authorized basis.

Last Friday, White House officials made at least two public references to Presidential Policy Directives (PPDs).  PPD 1 was cited in a new executive order on computer security and PPD 8 was cited in a White House blog posting on disaster preparedness.  Each Directive is a significant expression of national policy.  Neither one is classified.  And yet neither of them — nor any other Obama Presidential Policy Directive — can be found on the White House website.

The White House decision not to make these documents available is a stark reminder of the incoherence of the Obama Administration’s transparency policy, and its inconsistent implementation.

“Information maintained by the Federal Government is a national asset,” President Obama wrote in his January 21, 2009 memo on transparency and open government. “My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public.”

But as the withholding of the presidential directives illustrates, not even the Obama White House itself complies with this policy, and so its impact in the farther reaches of the executive branch has been muted.  Those who seek access to Presidential Policy Directives must look elsewhere.

“I think it’s general policy that we can release a detailed summary of [PPDs],” said deputy national security adviser Michael Froman at a September 22, 2010 White House press briefing, “but as I understand the policy, [it is] not to release the PPDs themselves.”

In accordance with this PPD non-disclosure policy, the Department of State last month denied a FOIA request from Gavin Baker of OMB Watch for a copy of PPD 6 on global development policy.  The document was exempt from release, the State Department said, based on “the Presidential communication privilege.”

On the other hand, the full text of PPD 8 on national preparedness has been made available online by the Department of Homeland Security, despite the White House refusal to release it directly and notwithstanding any “Presidential communication privilege.”

Where secrecy has prevailed, unauthorized disclosures have also helped to fill the void in public access.  PPD 1 on the Organization of the National Security Council System was obtained from a confidential source shortly after its issuance in February 2009.  (The National Security Staff did release a copy of the directive after it was made available online.)  PPD 2 on Implementation of the National Strategy for Countering Biological Threats was obtained by the website Public Intelligence through an inadvertent disclosure on a server for U.S. military personnel.

Although no Presidential Policy Directives have been published on the White House website, one Obama Presidential Study Directive — PSD 10 on preventing mass atrocities — was in fact published by the White House last August.  This otherwise unremarkable step tends to confirm that there is no serious question of principle or privilege at stake in the decision to publish such directives.  Instead, the Obama Administration’s broader anti-transparency policy on presidential directives appears to be driven by an old-fashioned imperative of secrecy for its own sake.

Inevitably and predictably, the U.S. Government has moved to systematically increase the monitoring of classified computer networks and to tighten the safeguarding of classified information in response to the indiscriminate publication of classified records by WikiLeaks.

An executive order issued on October 7 does not define the new security policies.  Instead, it establishes new mechanisms for monitoring, developing and implementing information system security policies, including a newly established Insider Threat Task Force.

In a gesture directed at whistleblowers, the new executive order states (sect. 7e) that “the entities created and the activities directed by this order shall not seek to deter, detect, or mitigate disclosures of information by Government employees or contractors that are lawful under and protected by” whistleblower protection statutes.

But while the systematic tracking of online behavior may not deliberately “seek” to deter or detect whistleblowers, it’s hard to see how it could fail to produce such effects.

The Nuclear Regulatory Commission reported in July that it is “retiring” classification guides on three topical areas as a result of the ongoing Fundamental Classification Guidance Review.

The cancelled classification guides pertain to “national security information concerning nuclear materials and facilities”; “assessing nuclear threat messages”; and “information dealing with the release and dispersion of radioactive material.” To the extent that information on these topics may still require classification, the NRC report said there are other authorities that the Commission can rely on, including joint classification guides with the Department of Energy that remain in effect.

But the retired guides will no longer be available for use in classifying NRC information.

A similar report from the Department of Defense noted that 82 DoD classification guides had been eliminated under the Fundamental Classification Guidance Review as of last July.

The potential efficacy of a broad-based review of agency classification guidance in reducing excessive secrecy was demonstrated in practice by the Department of Energy in the mid-1990s.  (The Department would “classify less, and enjoy it more,” a spokesman told Science Magazine in 1993.)  Building on that example, I presented an argument for a government-wide review of classification guidance in “Reducing Government Secrecy: Finding What Works,” Yale Law & Policy Review, vol. 27, no. 2, spring 2009.

Reporting on intelligence can be a challenge even for an experienced national security reporter, observed Dana Priest in her book “Top Secret America” (co-authored with William Arkin).

“Having traveled the world with the military, I just didn’t understand why I was failing to progress with [reporting on] the CIA,” she wrote (p. 19).  “Maybe I wasn’t using the right terminology or phrases, or hadn’t found the right people to ask.  But the obvious answer was made clear to me one day when [CIA spokesman William] Harlow finally got tired of the badgering and let me have it, explaining in a very loud voice why, for the umpteenth time, he had no comment to my questions.  ‘This is a goddamn secret organization!  That’s why!'”

The notion that “it’s secret because it’s secret” actually goes a long way towards explaining the often reflexive and indiscriminate practice of national security classification.

It therefore stands to reason, says a new report from the Brennan Center for Justice, that if classifiers were obliged to justify their classification actions with more clarity and precision, they would classify less.  Among other steps, the report recommends that each classification action be accompanied by a concise written explanation.  This would be one way of shifting incentives and burdens in favor of more thoughtful and more limited classification, the authors say.  They sensibly call for a pilot project to test and refine their proposal on a limited scale.  See “Reducing Overclassification Through Accountability” by Elizabeth Goitein and David M. Shapiro, Brennan Center for Justice, October 5.

However, it is not self-evident that this recommendation would have the desired effect.  There are probably very few classifiers who consciously abuse classification authority to withhold information that they know should not be classified.  Nor is it insurmountably difficult for a government official to devise a rationale even for a questionable classification decision, as many FOIA litigators can attest.  If classifiers are required to provide a written justification for their view, no matter how eccentric or ill-considered it may be, they will find a way to do so.

A better approach would seem to be to diminish the effect of individual and agency biases towards secrecy by submitting classification decisions to a broad consensual review.  (Since there are no purely objective standards to guide classification policy, a consensus of independent views may be the best one can hope for.)  A procedure of this sort is supposed to be followed in the ongoing Fundamental Classification Guidance Review, though it is unclear how broad a range of perspectives is actually being brought to bear.

Besides their several proposals for change, the Brennan Center authors present a lucid recapitulation of the case against unfettered secrecy that anyone can read with benefit.  Their report contributes another voice of urgency to the mounting demand for reform of national security secrecy.

The need for secrecy reform was also vividly illustrated by the Obama Administration’s unwillingness to candidly discuss the killing of Anwar al-Awlaki in Yemen last week, or even to present the legal justification for it.  See “A Closed-Mouth Policy Even on Open Secrets” by Scott Shane, New York Times, October 5.