“Congress must take the lead in challenging the laws and practices that have allowed excessive secrecy to become the dominant feature of our national security culture,” the American Civil Liberties Union urged in a new report on government secrecy.

“The excessive secrecy that hides how the government pursues its national security mission is undermining the core principles of democratic government and injuring our nation in ways no terrorist act ever could,” wrote Mike German and Jay Stanley, the authors of the ACLU report.  “It is time for Congress to make the secrecy problem an issue of the highest priority, and enact a sweeping overhaul of our national security establishment to re-impose democratic controls.”

The report provides a fluid account of current secrecy policy, along with a critique from first principles as well as from recent experience.  Highly readable and thoroughly footnoted, the 51 page report covers a spectrum of secrecy issues, from the state secrets privilege to secret law to the role of national security whistleblowers, and a lot more.  It concludes with a menu of recommended reforms that Congress could and, the authors say, should undertake.

The title of the report sums it up:  “Drastic Measures Required:  Congress Needs to Overhaul U.S. Secrecy Law and Increase Oversight of the Secret Security Establishment” by Mike German and Jay Stanley, July 2011.

The report is fundamentally an act of good citizenship.  It identifies a significant problem, proposes a set of potential solutions, and presents a series of arguments about why those solutions should be adopted.  Even readers who do not identify as civil libertarians or do not share the premises of the report are likely to learn something from it.

One may also end up disagreeing with its conclusions or recommendations.  For example, in arguing for a greater congressional role in reforming government secrecy policy, the authors write that “We cannot expect the [executive branch] officials and agencies that benefit from lack of accountability to reform themselves.”  This is logical and makes intuitive sense — but oddly enough, it is not consistently confirmed by experience.

To the contrary, some of the most significant and far-reaching secrecy reforms that have been achieved to date have been the result of internal executive branch actions.  One thinks of the Department of Energy Openness Initiative of the mid-1990s, but also of the declassification of the aggregate intelligence budget, the declassification of the size of the nuclear weapons stockpile, and other “unilateral” executive branch actions.  A proper theory of secrecy policy must account for such counterintuitive moves.

Conversely, an increased role for Congress in secrecy policy under current circumstances might lead to greater secrecy, not less.  The authors sensibly recommend a repeal of the Kyl-Lott Amendment, which effectively prohibited the bulk declassification of historical records.  But the reason a repeal is called for is that Congress enacted such a restrictive measure in the first place, just as it has enacted many other new restrictions on disclosure under the Freedom of Information Act, and similar barriers to public access.  The peculiar congressional affinity for national security secrecy needs to be understood and factored in.

But this is a discussion worth having.

It is certainly true, as the ACLU authors write, that “The Constitution provides ample tools for Congress and the courts to check executive abuses of authority.  Their failure to effectively use these tools leaves these branches of government with much of the blame for the misguided national security policies the executive pursues in secret.”

Public cynicism about politics in general and about Congress in particular should not be allowed to obscure an appreciation of the vital role of Congress in our system of government, writes constitutional scholar Louis Fisher in his latest book, “Defending Congress and the Constitution.”

“Without a strong Congress, we cannot speak of democracy,” he says.  “Safeguarding individual rights is often assumed to reside almost wholly with the judiciary, but history offers scant support for that position.  Congress frequently takes the lead in defending personal rights and minorities that are not protected in the courts.”

Fisher explores a range of historical and contemporary episodes involving congressional investigations and oversight, the use of budget authority, and the role of Congress in national security policy, including all kinds of lore he gathered over nearly four decades as a senior specialist at the Congressional Research Service.

Fisher recognizes the diminished esteem in which Congress is held by many members of the public and, not coincidentally, the decline in Congress’ own institutional self-confidence.  His intent is to challenge this erosion and to help refurbish the highest traditions of congressional leadership.

“Congress has a good story to tell in defending the Constitution and protecting individual freedoms.  Lawmakers need to tell it.”

In “Defending Congress and the Constitution” (University Press of Kansas, 2011), Fisher hopes to remind readers of that neglected story.

Updated below

Last month the National Security Agency announced the declassification of various historic records as evidence of its “commitment to meeting the requirements” of President Obama’s policy on openness and transparency.  Among the newly declassified records was a 200 year old publication on cryptology.  (“NSA Declassifies 200 Year Old Report,” Secrecy News, June 9, 2011.)

NSA listed the 1809 study as a “highlight” of the new releases in a press statement, and the National Archives featured it in a promotional blog posting.  But upon inspection, it turns out that the newly released document was already in the public domain and freely available online.

Instead of providing cause for celebration or congratulation, the NSA “release” is a disturbing sign of futility and irrelevance in the nation’s declassification program.

The June 8 NSA press statement hailed the disclosure of “early publications on cryptography, including ‘Cryptology: Instruction Book on the Art of Secret Writing’ from 1809.  In fact, the document is a German work and its real title is “Kryptographik: Lehrbuch der Geheimschreibekunst…” by Johann Ludwig Klüber (1762-1837), who was the first Professor of Law at the University of Heidelberg.

According to a June 14 blog post by James Rush of the National Archives, this work was among the German government records that were seized by U.S. forces after the defeat of Germany in World War II, and it found its way into U.S. intelligence files.

Though the NSA press statement seemed to indicate that the full publication was being disclosed, the material that was released by NSA was actually just a 40 page abstract and excerpt of the author’s much longer work.  A copy of what was transferred to the National Archives is now posted here (pdf).

The cover sheet indicates that the document was classified as Secret, and that it was formally declassified on November 12, 2010 by D. Janosek, NSA Deputy Associate Director for Policy and Records, along with a second reviewer who was identified only by his or her initials.

But what neither the National Security Agency nor the National Archives seemed to realize is that not only had the source material never been classified — and so could not properly be “declassified” — but that it was already publicly available.  The full 532 page text of the 1809 study — not just a 40 page abstract — was actually digitized several years ago and published online through Google Books.

Two obvious inferences may be drawn from this episode.  First, there is extravagant overclassification at the National Security Agency, as in many other corners of government.  This means that access restrictions are being imposed on records that do not require or deserve such protection.  Second, there is a lack of effective oversight mechanisms to promptly identify and correct such instances of overclassification.  There are always going to be classification errors, so there need to be robust error correction mechanisms.  Ideally, Google Books would not be one of them.

Update: On August 19, 2011 the NSA issued a supplementary press release (pdf) that added some significant clarifications and contextual information regarding the declassified document. In particular, the NSA noted that the newly released document included a hand-written cryptography example that did not appear in the Klüber book.

The latest volume of the State Department’s Foreign Relations of the United States (FRUS) series documents U.S. Mideast policy before, during and immediately after the 1973 Arab-Israeli war.  It was published this month following a four year declassification review that lasted from 2006 to 2010.

Among numerous topics of historic and current interest, the 1200 page volume (pdf) touches glancingly on the issue of Israel’s nuclear weapons program.

“Do Egypt and Israel have the capability to make nuclear weapons?” asked Sen. Mike Mansfield at a November 27, 1973 White House meeting (page 993).  “Israel has the capability to make small numbers,” answered Henry Kissinger.  “Not Egypt.”  (This exchange was also noted by Amir Oren in Ha’aretz on July 22).

The late Admiral Noel A. Gayler, the former NSA director and advocate of nuclear disarmament who died July 14, is included on the list of “Persons” in the new FRUS volume though his name does not appear elsewhere in the text.

In the past 18 months, the National Declassification Center has completed processing of less than 5% of the 400 million page backlog of 25 year old historical records that are awaiting declassification.  Still, the Center “remain[s] confident” that it will meet the December 2013 deadline set by President Obama for processing the entire backlog.

The Center has just published a new biannual report outlining its progress to date along with a description of current efforts and challenges ahead.  The report notes that of the 18 million pages that have undergone declassification review at the Center thus far, 92% have been declassified and made available to the public.

In a step that will shape the future course of U.S. government secrecy policy, President Obama approved the appointment of John P. Fitzpatrick, a security official at the Office of the Director of National Intelligence, to be the next Director of the Information Security Oversight Office (ISOO), effective August 1.

The ISOO Director, sometimes referred to as the “classification czar,” is the most senior official (other than the President himself) responsible for oversight of the national security classification system.  The Director monitors agency compliance with classification policies, and leads the development of changes in those policies.  In his oversight capacity, the ISOO Director is authorized and required to act on complaints and suggestions both from within the government and from members of the public.  The President has also empowered the ISOO Director to require the declassification of any information he deems to be improperly classified (though this authority has never been exercised in practice).

Mr. Fitzpatrick is a former director of the DNI Special Security Center, the inner sanctum of security policy within the U.S. intelligence community.  In theory, this background should give him the stature to command attention and respect throughout the far-flung secrecy bureaucracy.

Mr. Fitzpatrick’s credentials as a proponent of secrecy reform are less clear.  But David S. Ferriero, the Archivist of the United States, called him “a strong advocate for information sharing and protection,” and said “he has demonstrated his ability to lead and oversee change both within and beyond the Intelligence Community throughout his career.”

“This experience uniquely positions him to lead ISOO and I look to him to improve transparency, openness, and access while ensuring that classified information is properly protected,” the Archivist wrote in a July 20 announcement to all NARA employees.  (ISOO is a component of the National Archives and Records Administration, though it takes policy direction from the White House.)

Among his professional achievements, it is noteworthy that Mr. Fitzpatrick helped foster significant changes in security clearance policy as director of the DNI Special Security Center.  Cutting against the grain of contemporary practice, he advanced new procedures that “would remove barriers for first- and second-generation Americans to be considered for IC security clearances.”

In some other areas, he seems to have fallen short.  Thus, in December 2010 he told the House Intelligence Committee that the precise number of security clearances throughout the government would be disclosed in a February 2011 report to Congress.  But when it was delivered, the report did not contain the information promised by Mr. Fitzpatrick.  That information — now due in another report — apparently has still not been transmitted.  The ODNI said last week that it was “privileged” and “pre-decisional.”  (See “Total Number of Security Clearances Still Unknown,” Secrecy News, May 27, 2011.)

Mr. Fitzpatrick’s appointment to be the fifth ISOO Director since the organization was established in 1978 comes at a particularly crucial moment in secrecy policy.  The national security classification system is under mounting pressure both to fulfill its core function of protecting genuine national security secrets and to eliminate the spurious accretions of decades of excessive secrecy.  The President has spoken of the need for a “fundamental transformation” of today’s classification system, which is an artifact of Cold War principles, politics and practices, though he did not provide any direction for such a transformation.  An effort is underway to rescind obsolete classification policies through the pending Fundamental Classification Guidance Review, but it is still uncertain whether this process will gain traction and produce results.

Within a fairly short period of time — probably not more than a year or two — it will become clear whether the secrecy system is responsive to such planned and deliberate reforms, or whether it will drift towards failure and irrelevance instead.  Accordingly, the ISOO under Mr. Fitzpatrick’s leadership could become more important than ever as a vehicle for secrecy reform– or it could prove inconsequential.

Government attorneys said last week that a proposal by former CIA officer Jeffrey Sterling to subpoena former staff members from the Senate Intelligence Committee to show that they, not he, leaked classified information was “frivolous” and should be denied.

Prosecutors also suggested that the Sterling defense motion actually strengthened their own argument that New York Times reporter James Risen, to whom Sterling allegedly provided classified information, should be compelled to testify at Sterling’s trial.

“The defense plans to point fingers at other possible ‘suspects’ and ask the jury to speculate that someone other than Sterling was Risen’s source,” prosecutors said in a July 22 response (pdf) to the defense motion for a subpoena to the U.S. Senate.  “And while the defendant certainly has a right to develop and put forth his defense as he sees fit, the only reason he can proceed down this path is because he believes that the government will not be able to compel Risen to identify his source or even testify as to who was not a source.”

“In other words,” prosecutors said, “the First Amendment interests advocated by Risen have become both a sword and shield for the defendant, and he has used the current impasse over Risen’s testimony to accuse falsely other individuals of serious crimes and ask this court to enforce speculative and largely frivolous requests to search for information in support of that defense.  This should not be countenanced,” they argued.

Prosecutors said that the Senate Intelligence Committee has undertaken a search for documents responsive to Mr. Sterling’s request, even in the absence of a subpoena.  They also said that the Committee staff members named by Mr. Sterling denied having provided any information to Mr. Risen.

A transcript of the July 7 court hearing on Mr. Risen’s motion to quash the prosecution’s subpoena to compel him to testify at trial is now available here (pdf).

William M. Welch II, the lead prosecutor in the Sterling case and in the recently concluded prosecution of Thomas Drake, was profiled by Shane Harris in “Obama Administration’s Point Man to Stop Leaks,” Washingtonian Capital Comment blog, July 20.

In one of his trademark “snowflake” memoranda from 2005 that was made public this week, then-Secretary of Defense Donald Rumsfeld stated flatly that the government secrecy system was a failure.

“The United States Government is incapable of keeping a secret,” he wrote (pdf) on November 2, 2005.  “If one accepts that, and I do, that means that the U.S. Government will have to craft policies that reflect that reality.”

Unfortunately, he did not elaborate on this terse statement.  The memorandum was not addressed to anyone in particular, and the profound questions it raises were left hanging.  There was no known written response to the memo and, needless to say, there is no evidence of any subsequent shift to a post-secrecy orientation in government policy.

“Not to sound too cynical,” said a former official who served in the Bush Administration, “but I would add to Rumsfeld’s observation that not only is the U.S. incapable of keeping a secret but it is also incapable of fundamentally reforming the way it keeps secrets.  I know from a practical point of view, even after that snowflake, I found DoD to be one of the most recalcitrant organizations with which to deal,” he added (on a not-for-attribution basis).

But a current official disputed the premise of the Rumsfeld memo.  “We are capable of keeping secrets– the issue is how many and how long,” he said.  “The more we seek to protect and the longer we seek to protect it the less likely we will meet with success.  The classification system can’t be effective if we over-burden the system.”

This official said that the new Secretary of Defense, Leon Panetta, could still transform the military secrecy system in a meaningful way if he were to treat it as a “mission critical” instrument to be used sparingly and with precision rather than as an inherited bureaucracy that does not have to meet any performance standards at all.

Another current official pondered “What would change if one presumed that the U.S. government cannot keep a secret?  I doubt that many USG officials would say that we should therefore stop trying.  The most likely and positive conclusion might be that we should severely limit the number and kinds of secrets we seek to protect.”

In fact, that seems to be the conclusion that was reached by Secretary Rumsfeld himself in another startling snowflake (pdf) dated August 9, 2005 and addressed to Under Secretary of Defense for Intelligence (USD(I)), Stephen Cambone:

“What do you think about initiating a program of finding ways to reduce the number of things that are classified, and to speed up the process of declassification?”, Secretary Rumsfeld wrote.

Again, this memorandum had no known practical consequences.  Dr. Cambone did not immediately reply to an email inquiry from Secrecy News concerning his response to the Rumsfeld memo.

But it so happens that a focused effort “to reduce the number of things that are classified” is (or is supposed to be) underway right now throughout the executive branch, in the form of a Fundamental Classification Guidance Review (FCGR) that was required by President Obama’s executive order 13526 (section 1.9), which was issued in December 2009.

To date, there is little sign that the Review has made any progress at all in reducing the scope of the national security classification system.  But William A. Cira, the acting director of the Information Security Oversight Office, said that Pentagon classification officials were responding constructively to the Review requirement.

“We know they are moving forward on the FCGR process and they have already mapped out a plan for doing so.  In the near future we will be discussing the DoD FCGR plan in depth with the staff at USD(I), and it is our understanding that they will have much to tell us,” Mr. Cira said.  The FCGR process must be completed by all agencies that classify information no later than June 2012.

The two Rumsfeld snowflakes on classification policy were among more than 500 previously undisclosed memos that were posted on Secretary Rumsfeld’s website on July 12.

It is not known exactly what might have prompted Rumsfeld to issue these statements.  Then as now, leaks were in the air.  “The issue of leaks has been front and center in the news, in case some of you hadn’t noticed,” House Intelligence Committee chairman Pete Hoekstra told the Heritage Foundation on July 25, 2005.

Aside from their specific content, the Rumsfeld snowflakes have a couple of other noteworthy features.  First, they were marked FOUO, or “for official use only.”  In other words, they were produced for internal consumption, not to inspire a public conversation on secrecy policy.

Second, each snowflake is stamped “certified as unclassified [in accordance with]” the executive order on classification.  But there is no requirement in the executive order to “certify” records as unclassified.  Whoever did so was wasting his time, while diverting scarce resources from declassification and other legitimate information security programs.

Last month, Secretary of Defense Robert M. Gates issued a new DoD Directive (pdf) on the National Reconnaissance Office (NRO), the agency that builds, launches and operates U.S. intelligence satellites.  The new directive, which is unclassified, cancels and replaces an earlier directive (pdf) from 1964, which was originally classified Top Secret.

The new directive generally describes the mission, organization and management of the NRO, and does so with a fair amount of detail.  It makes explicit, for example, the fact that the NRO is funded through both the National Intelligence Program (NIP) and the Military Intelligence Program (MIP), reflecting the agency’s dual role in supporting national policymakers and providing support to military operations.

The directive also makes reference to the normally sensitive subject of intelligence liaison relationships, stating, for example, that the NRO Director should “leverage overhead reconnaissance capabilities of foreign partners with whom NRO has an established relationship….”

See DoD Directive 5105.23, “National Reconnaissance Office (NRO),” June 28, 2011.

The very existence of the NRO itself was considered a national security secret until September 1992, when it was declassified by then-NRO Director Martin Faga.  Some of his erstwhile colleagues “still haven’t forgiven me,” Mr. Faga said recently.

Former National Security Agency official Thomas A. Drake, who pled guilty to a misdemeanor charge of exceeding the authorized use of a government computer, will ask a federal court to sentence him to one year probation with community service at a sentencing hearing on Friday, July 15.

Mr. Drake, who is understood to have been a source for several Baltimore Sun stories that revealed NSA mismanagement, was indicted in April 2010 under the Espionage Act for allegedly mishandling classified information, as well as obstruction of justice and making false statements, charges that he denied.  In a breathtaking reversal last month, the prosecution abandoned all of the ten felony counts in the Drake indictment, and accepted a misdemeanor guilty plea instead.

Technically, however, the court could still sentence Mr. Drake to a maximum of a year in prison, though the government is not requesting more than a year of probation.

This week, Mr. Drake’s attorneys filed a sentencing memorandum to bolster his request for probation.

The document, with numerous attachments, testifies to Mr. Drake’s distinguished military service in the US Air Force and the US Navy Reserves, his exceptional professional achievements (with multiple commendations from NSA), his physical courage, his moral rectitude, and the high esteem in which he is held by his colleagues.  (The memorandum, filed under seal, was partially redacted to exclude personal information about Drake’s family and friends.)

Meanwhile, his attorneys argued, Mr. Drake has already suffered severely, even before being sentenced.  His professional career has been all but terminated.  He lost his clearance and the possibility of a federal pension.  He was fired from a teaching position at Strayer University as a direct consequence of the government’s felony indictment.  He has been uprooted from the community of his peers.  And he has been driven into debt.

“Friends and colleagues from all stages of his life resoundingly call Mr. Drake a hard-working, dedicated, and honest public servant who puts others first,” wrote public defenders James Wyda and Deborah L. Boardman.  “They herald his honesty and patriotism, and laud his commitment to family, citizenship, and the ideals of the Constitution.”

“Against the backdrop of Mr. Drake’s personal history, and in light of the suffering and punishment he already has endured as a result of his actions, incarceration is not an appropriate sentence in this case,” they wrote.  “A one-year probationary sentence, with a condition of community service, is the just punishment in this case, for this crime, and for this defendant.”

Judge Richard D. Bennett of the Eastern District of Virginia will preside over the July 15 sentencing hearing.

Former CIA officer Jeffrey A. Sterling, who is suspected of leaking classified information to New York Times reporter James Risen, this week asked a court to issue subpoenas (pdf) for staff and records of the U.S. Senate Select Committee on Intelligence.  The move is part of a defense strategy to show that it was Senate staffers rather than Mr. Sterling who leaked the classified information in question.

“Mr. Sterling is charged with unlawfully disclosing classified information to a third party [i.e., Mr. Risen] not authorized to receive the information,” Sterling’s July 11 motion explained. “An obvious defense at trial will be that any disclosure to the third party was done by another person or by multiple individuals — and not by Mr. Sterling.”

“Specifically, Mr. Sterling spoke to staff members of the United States Senate Select Committee on Intelligence in March 2003 about the Classified Program underlying the charges in the Indictment. These conversations were all lawful. Discovery in this case has revealed that Mr. Sterling spoke to two Committee staff members, Donald Stone and Vicky Divoll, and that they briefed a third Committee staff member, Lorenzo Goco. Less than a month after Mr. Sterling’s conversation with the Senate staffers, Mr. Risen contacted the C.I.A. requesting comments for an article on Classified Program No. 1. The timing is highly suggestive that it was one of the staff members and not Mr. Sterling who unlawfully disclosed classified information.”

The subpoenas were first reported by Josh Gerstein in Politico (“Alleged CIA leaker wants to subpoena Senate and intel panel aides,” July 11).

Proposing a potential alternative source for the unauthorized disclosure, while a sensible tactic for the defense, might have the unintended consequence of increasing the pressure for Mr. Risen to testify.  Prosecutors are already urging the court to grant a subpoena for Risen to clarify the facts of the matter.  Even if he is not compelled to identify his source, he might still be pressed to confirm who was not his source.

An article in the Russian edition of Forbes magazine this week somewhat facetiously considered the tourism potential of Russia’s secretive and tightly secured closed cities.

“In today’s Russia there are 42 closed administrative territorial entities — or ZATOs — surrounded by rows of barbed wire and guarded by armed patrols. They belong to the Ministry of Defense, Rosatom (State Corporation for Atomic Energy), and Roskosmos (Federal Space Agency),” the article (in Russian) said.

“A special pass is needed in order to gain access to the territory of a ZATO. This is most readily available to anyone who has close relatives resident in a closed city. A pass is also issued to people who have got a job in a ZATO or who have found themselves a husband or a wife among the local residents.”

“But there are also more circuitous routes, of course. From time to time some ZATOs stage cultural and sports events to which outside participants are invited. But the most desperate simply find holes in the fence or steal their way into a city along secret paths. In this context, admittedly, consideration has to be given to the fact that gaining unlawful access to the territory of a ZATO carries the risk of administrative punishment in the form of a fine and immediate expulsion from the territory.”

“Forbes has selected 10 closed cities in Russia that are worth a visit. Or at least worth the attempt.”  The profiled cities include Krasnoyarsk, Zelenogorsk, Kapustin Yar, Lesnoy, Mirnyy, Novouralsk, Ozersk, Sarov, Severomorsk, and Snezhinsk.

The enticing Snezhinsk “is full of mysterious artifacts that have been preserved from Soviet times: structures whose purpose is unknown, ventilation pipes that protrude from the ground in the very heart of the city, tunnels leading off into the unknown.”

The 2008 book “A Nuclear Family Vacation: Travels in the World of Atomic Weaponry” by Nathan Hodge and Sharon Weinberger included a chapter on Russia’s closed cities.