The ongoing release of another large collection of classified documents by WikiLeaks concerning Guatanamo detainees creates a new set of challenges and opportunities for the detainees’ attorneys.  But the government says the attorneys cannot discuss those matters in the public domain, even though anyone else can.

Attorney David Remes petitioned a court yesterday to release him from all such restrictions regarding publicly available WikiLeaks documents.  His petition was posted by Ben Wittes of Lawfare blog.

It was also reported by Scott Shane in the New York Times today, and discussed by Marcy Wheeler at EmptyWheel.

The petition argues that not only are continuing controls on publicly available information futile, they are unjust.  That is, they inhibit the attorney’s ability to act in the best interests of his clients by correcting errors or identifying exculpatory factors.

A response by the government will follow.

Restrictions on the use of published WikiLeaks material remain in effect in much of the government, the New York Times reported yesterday, causing considerable confusion and frustration.  See “Detainees’ Lawyers Can’t Click on Leaked Documents” by Scott Shane, April 27.

“Add me to the list of grumblers,” said a respected national security analyst at the Congressional Research Service, where employees have been prohibited from accessing WikiLeaks documents online.

“This whole thing is so [expletive] stupid,” he said yesterday. “Even staff with clearances can’t read the cables, let alone quote them. One reason is that we can’t read classified materials on unclassified computers and we have no classified computers.”

“We can now quote news stories which cite the cables, but we have no way of verifying whether the article correctly quotes the cables.”

“This is hampering CRS work and management knows it,” the analyst said.  “There’s just no leadership on this issue.”

Most executive branch agencies failed to meet a December 2010 deadline set by President Obama to issue implementing regulations for his December 2009 executive order on national security classification policy, dealing a setback to the Administration’s classification reform agenda.

Despite last year’s presidential deadline, “As of March 15, 2011, only 19 of 41 agencies have issued their implementing regulations in final form,” according to the latest Annual Report to the President (pdf) from the Information Security Oversight Office (ISOO), made public today.

“Given that less than half of agencies have issued implementing regulations in the 15 months since the President issued the order and the 9 months since ISOO revised the government-wide implementing regulations for the order, it is clear that the means by which agencies modify and issue implementing regulations are not sufficient to accommodate changes in national security policy,” the ISOO Report said.

“ISOO sees this as the biggest impediment to implementing the reforms called for by the President and as a real threat to the efficient and effective implementation of the overall classification system.”

Among other things, the delayed implementation of the executive order means that many agencies have still not begun to perform the Fundamental Classification Guidance Review that requires them to seek out and eliminate obsolete classification requirements.

ISOO Acting Director William A. Cira said that even with the lag in implementation, many agencies were actually moving faster to adopt the new classification order than they had done in the past.  For example, after President Clinton issued executive order 12958 in April 1995, the Department of Defense did not issue an implementing regulation for nearly two years.  Following President Bush’s 2003 executive order 13292, the Department of Defense never got around to issuing an updated regulation at all!

On the other hand, no previous President had personally set a deadline for agencies to adopt implementing regulations, as President Obama did in a December 29, 2009 memorandum.  This creates the awkward and disturbing circumstance that most affected agencies are now out of compliance with a direct presidential order.

That’s true, said Mr. Cira of ISOO, but it should be understood as a reflection of antiquated bureaucratic procedures, not as deliberate agency defiance of the President.

“In a lot of agencies, especially the larger ones, the bureaucratic processes for publishing formal regulations tend to be quite difficult and time consuming,” he said. “This can be just as frustrating for those people in the agency that have drafted the regulation and are trying to get it through the approval process as it is for anyone outside the agency.”

The ISOO annual report is one of very few published sources of official data on classification and declassification activity in the government.  This year, for example, the report said that agencies generated 224,734 original classification decisions in FY2010, a hefty 22.6 percent increase from the year before.

But the impact of the annual reports is hard to establish.  In recent years, the President has not even acknowledged receipt of the report, much less engaged with its findings.

In Freedom of Information Act litigation, courts will almost always defer to a government agency when it asserts that national security requires that certain information remain classified.  Judges say they are reluctant to “second guess” agency national security experts, and there is a substantial body of case law that discourages them from doing so.

But earlier this month, Judge Richard W. Roberts of the DC District Court considered an agency’s national security claim, found it unpersuasive, and rejected it (pdf).

In that FOIA case, Center for International Environmental Law vs. the Office of the United States Trade Representative, the plaintiff sought a USTR document concerning the U.S. negotiating position on the Free Trade Agreement of the Americas.  USTR said the document was classified because the international negotiations were confidential and the document’s disclosure would result in damage to U.S. foreign relations.

“USTR argues that release of document 1 would constitute a breach of its agreement with the other nations participating in the FTAA negotiations. [USTR] states that [t]here is an understanding among the 34 participating governments, consistent with longstanding practice in multiparty trade negotiations, that they will not release to the public any negotiating documents they produce or receive in confidence in the course of the negotiations unless there is a consensus among the 34 governments to do so.”

But remarkably, the judge didn’t buy it, particularly since it was a question of releasing a U.S. document, not a foreign document.

USTR “has not shown it likely that disclosing document 1 would discourage foreign officials from providing information to the United States in the future because those officials would have no basis for concluding that the United States would dishonor its commitments to keep foreign information confidential,” he concluded.

“Although a court must defer to agency affidavits predicting harm to the national security, ‘[d]eference… does not mean acquiescence’,” Judge Roberts wrote.  See the April 12, 2011 Memorandum Opinion here.

The ruling that international negotiations cannot necessarily be used as a pretext for classifying U.S. government information may have important ramifications in other policy areas.

So, for example, the U.S. government currently makes less information about the makeup of the U.S. nuclear arsenal under the New START Treaty than it previously did under the START regime, observed Hans Kristensen of FAS last month.

Although such stockpile information is generated and is regularly exchanged with the government of Russia under the provisions of New START, it is currently classified and has still not been made publicly available.  If it became necessary to challenge the classification of this information in court, then Judge Robert’s new ruling might offer an apt precedent.

“Although the Constitution permits the judiciary to play a role in judging government secrecy claims and Congress has repeatedly endorsed that role, most prominently in the Freedom of Information Act, judges have been reluctant to question Executive Branch secrecy,” observed Meredith Fuchs in a 2006 law review article that argued for a more active judicial role in reviewing classification decisions. “Without judicial intervention…, the incentives on the Executive Branch to overreach far outweigh any checks on excessive secrecy.”

We were sad to learn, belatedly, of the recent deaths of two familiar figures in the rather small world of government secrecy policy.

Jeanne Schauble, the longtime director of declassification at the National Archives, died last October.  She helped oversee and implement the declassification of more than a billion pages of historical records since 1995.  Her NARA colleague Michael Kurtz said last year that “she set a high standard for government service.”

Michael Resnick was Senior Director of Information Sharing Policy at the White House until his death from cancer in February.  If the current policy on Controlled Unclassified Information is not a disaster — and so far, it’s not — that is largely because Mr. Resnick was willing to engage in sometimes heated discussions with public interest groups and to reconsider his own position.

As far as we could tell, no obituaries for Ms. Schauble or Mr. Resnick appeared in any national newspaper.  They weren’t famous.  But they were honest, honorable and skilled public servants.  Anyone who crossed their paths will remember them.

The Central Intelligence Agency announced yesterday that it had declassified six World War I-era documents describing the use of “invisible ink” to convey secret messages.  The CIA presented the new disclosure as an indication that the declassification process was functioning properly, not that it was dysfunctional.

“These documents remained classified for nearly a century until recent advancements in technology made it possible to release them,” CIA Director Leon E. Panetta said in a news release. “When historical information is no longer sensitive, we take seriously our responsibility to share it with the American people.”

“The CIA recognizes the importance of opening these historical documents to the public,” added Joseph Lambert, the Agency’s Director of Information Management Services. “In fiscal year 2010 alone, the Agency declassified and released over 1.1 million pages of documents.”

But there are a few things the CIA news release did not say.

These World War I documents remained classified not because they were forgotten or overlooked, but because the CIA had vigorously opposed their release.  In response to a 1998 FOIA lawsuit brought by the James Madison Project, the CIA argued that “some of the methods described in the documents in question are still used by the CIA, and that third parties inimical to the interests of the United States may not know which of the [invisible ink] formulas are still considered reliable by the CIA and approved for use by its agents.”  In 2002, a federal court accepted that argument and ruled (pdf) in favor of the CIA, affirming the secrecy of the documents.

It is unknown what “recent advancements in technology,” if any, might have occurred between 2002 and the present to compel a complete reversal in CIA’s view on declassification of these records.

An alternate explanation for the new release is that the records were subject to a pending mandatory declassification review (MDR) request by attorneys Mark Zaid and Kel McClanahan.  If CIA had continued to deny disclosure of the documents, that request could have been referred to the Interagency Security Classification Appeals Panel, which has been known to view extreme secrecy claims with skepticism, and often to overturn them. [Update: In fact, the request was appealed to the Panel in December 2010, but it had not yet been acted upon when CIA decided to disclose the requested documents.]

Also, if the CIA were to faithfully comply with the President’s executive order on classification — which not all executive agencies do — then it would have been obliged to release these documents (and all other records older than 75 years) by mid-2013 unless it requested and received special permission from the Interagency Panel.

There is no glass that is small enough to be made “half full” by the CIA’s new disclosures.  But the latest release may still be viewed charitably, said William J. Bosanko, executive for agency services at the National Archives and former director of the Information Security Oversight Office.

“I see this as a sign the sick system is starting to get well,” Mr. Bosanko said. He added cheerfully that there are “lots of chances to make things better.”

In the early 1990s, the massive backlog of classified historical attention was just beginning to come to broad public attention.  In those days, the scale and persistence of official secrecy often elicited embarrassment from government officials.

“Obviously it seems absurd on the surface,” said then-ISOO director Steven Garfinkel, referring to the fact that a World War I document had just been discovered to still be classified.  That document, dated April 15, 1917, had been “the oldest classified document” until it was finally declassified and released in 1992 in response to a Freedom of Information Act request from the Federation of American Scientists.  It is a substantive, lively and quite interesting account (pdf) of “the intelligence system necessary in case U.S. troops are ordered to the continent.”

“Within the next decade there’s going to be a need for a complete re-examination of the issue of secrecy,” Mr. Garfinkel told Tim Weiner of Knight-Ridder Newspapers in December 1991. “The secrecy issue is a Cold War issue and the world is changing.”

The Department of State is not fulfilling its obligation to produce a “thorough, reliable, and accurate” account of U.S. foreign policy and there is no foreseeable likelihood that it will do so, an official historical advisory committee told the Secretary of State this month.

The Department’s “Foreign Relations of the United States” (FRUS) series is required to fully document the history of U.S. foreign policy no later than 30 years after the fact, but that’s not happening.

“No progress has been made toward bringing the [FRUS] series into compliance with the statutory requirement that volumes be published 30 years after the events they document,” said the new annual report of the Advisory Committee on Historical Diplomatic Documentation.  “Indeed, the 6 volumes published in 2010 did not even meet the target set by the [State Department Historian’s] Office in 2009.”

Among other obstacles, “the CIA’s resistance to declassifying documents that are already in the public domain presents a severe challenge,” the Committee said.

But CIA is not the only obstacle.  “The Departments of Defense, Energy, and Justice (including the FBI) have often been as [culpable] if not more culpable than the CIA for the delays.”

“The HAC [Historical Advisory Committee] is pessimistic about [the Historian’s Office’s] prospects for meeting its statutory obligations if its current performance continues,” the new annual report concluded.

“The current records management system does not ensure those records of historical significance are identified in such a way as to promote their timely review for declassification and public release,” wrote Adm. William Studeman, former Acting Director of Central Intelligence, in the blog of the Public Interest Declassification Board last week.  “There is a great danger that, unless changes are made, our nation will be unable to document these historical decisions for future generations,” he said.

Last week, the National Security Archive filed a FOIA lawsuit against the Central Intelligence Agency seeking disclosure of an official CIA history of the 1961 Bay of Pigs invasion.  “The CIA is holding history hostage,” said the Archive’s Peter Kornbluh.

The American public does not have an accurate sense of the threat posed by attacks in cyberspace because most of the relevant threat information is classified, according to Sen. Sheldon Whitehouse (D-RI), who introduced legislation last week to raise public awareness of cyber security hazards.

“The damage caused by malicious activity in cyberspace is enormous and  unrelenting,” Sen. Whitehouse said on April 14. “Every year, cyber attacks inflict vast damage on our Nation’s consumers, businesses, and government agencies. This constant cyber assault has resulted in the theft of millions of Americans’ identities; exfiltration of billions of dollars of intellectual property; loss of countless American jobs; vulnerability of critical infrastructure to sabotage; and intrusions into sensitive government networks.”

“These massive attacks have not received the attention they deserve.  Instead, we as a nation remain woefully unaware of the risks that cyber attacks pose to our economy, our national security, and our privacy,” he said.

“This problem is caused in large part by the fact that cyber threat information ordinarily is classified when it is gathered by the government or held as proprietary when collected by a company that has been attacked. As a result, Americans do not have an appropriate sense of the threats that they face as individual Internet users, the damage inflicted on our businesses and the jobs they create, or the scale of the attacks undertaken by foreign agents against American interests.”

With Sen. Jon Kyl (R-AZ), Sen. Whitehouse introduced the “Cyber Security Public Awareness Act” to require government agencies to provide increased public reporting of cyber threat information.

“As of 2011, the level of public awareness of cyber security threats is unacceptably low. Only a tiny portion of relevant cyber security information is released to the public. Information about attacks on Federal Government systems is usually classified. Information about attacks on private systems is ordinarily kept confidential. Sufficient mechanisms do not exist to provide meaningful threat reports to the public in unclassified and anonymized form,” the bill stated.

Last year, Sen. Whitehouse chaired a bipartisan Senate Intelligence Committee task force on cyber security.

“The government keeps the damage we are sustaining from cyber attacks secret because it is classified,” he said last November. The private sector keeps the damage they are sustaining from cyber attacks secret so as not to look bad to customers, to regulators, and to investors. The net result of that is that the American public gets left in the dark.”

The National Security Agency published a brochure this month on “Best Practices for Keeping Your Home Network Secure” (pdf). Among other online security measures, the NSA suggested providing false answers to password recovery challenge questions.

“The cyber threat is no longer limited to your office network and work persona,” the NSA said. “Adversaries realize that targets are typically more vulnerable when operating from their home network since there is less rigor associated with the protection, monitoring, and maintenance of most home networks. Home users need to maintain a basic level of network defense and hygiene for both themselves and their family members when accessing the Internet.”

An Obama Administration initiative to curb overclassification of national security information that was announced in December 2009 has produced no known results to date.

The Fundamental Classification Guidance Review, which was mandated by President Obama’s executive order 13526 (section 1.9), requires each classifying agency to review all of its existing classification instructions prior to June 2012 and “to identify classified information that no longer requires protection and can be declassified.” While more than a year remains to complete the process, it is already behind schedule.

The Department of Defense, the most prolific classifying agency, failed to produce implementing regulations for the executive order in advance of the December 31, 2010 deadline for doing so set by the President.  As a result, most DoD components have not even started to review their classification guides, of which there are thousands.

Most recently, U.S. Central Command said that it had no records concerning the Fundamental Classification Guidance Review.  “We conducted a thorough and good faith search for responsive information,” CENTCOM told us in a March 28 letter (pdf). “Despite our extensive and careful search for documents pertaining to your request, we were unable to locate responsive information.”

U.S. European Command, on the other hand, said that it had already completed its Fundamental Review. But it concluded that its existing classification practices were already optimal, so no reductions in classification were required!

“The EUCOM Intelligence Office conducted a review as directed by E.O. 13526 for a Fundamental Classification Guidance Review,” EUCOM said (pdf) on January 18.  “No inefficiencies were found during the EUCOM review. No documents were produced during the review therefore, EUCOM reports a no records found in response to your FOIA request.”

Other agencies, including the Department of Energy, the Department of Homeland Security, and the Department of State seem to be taking a more diligent approach to the Fundamental Review, though even in those cases no specific elimination of any current classification instruction is known to have occurred thus far.

Some significant reductions in Obama Administration classification policy have occurred, including dramatic changes in intelligence budget secrecy and nuclear stockpile secrecy.  But these important developments emerged from issue-specific circumstances, and not from systematic classification reform efforts.

Last January, the director of the Information Security Oversight Office wrote to senior agency officials to emphasize the importance of the Fundamental Review and the need for rigorous implementation.

“The scope of this review needs to be systematic, comprehensive, and conducted with thoughtful scrutiny involving detailed data analysis,” wrote ISOO director William J. Bosanko.  But Mr. Bosanko has recently moved on from ISOO, which awaits appointment of a new director.  Meanwhile the Fundamental Review appears stalled and unproductive in much of the executive branch.

The Obama Administration today released the text of Presidential Policy Directive (PPD) 8 (pdf) on “National Preparedness.”  The Directive, signed by President Obama on March 30, generally calls for development of systematic response plans for natural and manmade disasters, and seeks to enlist broad engagement in the process.

“This directive is aimed at strengthening the security and resilience of the United States through systematic preparation for the threats that pose the greatest risk to the security of the Nation, including acts of terrorism, cyber attacks, pandemics, and catastrophic natural disasters. Our national preparedness is the shared responsibility of all levels of government, the private and nonprofit sectors, and individual citizens. Everyone can contribute to safeguarding the Nation from harm . As such, while this directive is intended to galvanize action by the Federal Government, it is also aimed at facilitating an integrated, all-of-Nation, capabilities-based approach to preparedness.”

From a secrecy policy perspective, two points may be noted.

First, while presidential directives are fundamental instruments of national policy, the Obama White House does not make them available on the White House web site.  You can find the names of hundreds of thousands of tourists who visited the White House and other information of questionable value and utility, but you cannot find a collection of unclassified directives issued by President Obama.  This is incongruous.

Second, it is noteworthy that the new Presidential Policy Directive is only the eighth one to be issued by the Obama Administration.  At this point in the third year of the George W. Bush Administration, around 25 presidential directives (NSPDs) had been issued.  And in the Clinton Administration, there had been around 35 directives (PDDs).  So this Administration is using directives much more sparingly, for reasons that are hard to discern from a distance.

A federal court heard pre-trial arguments last week in the case of former National Security Agency official Thomas A. Drake, who is charged with unlawful retention of NSA documents.  He allegedly relayed some of those documents to a Baltimore Sun reporter, who subsequently wrote stories about NSA waste and mismanagement.  At last week’s hearing (pdf), prosecutors and defense attorneys battled over the facts of the case, the scope of the charges, the constitutionality of the Espionage Act statutes, the nature of the evidence that may be presented at trial, and other matters.

In the end, each side got a favorable ruling on the “must win” issues it needed in order to have a chance of success at the actual trial, which is scheduled for June.  Judge Richard D. Bennett of the Maryland District Court sided with prosecutors in affirming the constitutionality of both the Espionage Act and the Classified Information Procedures Act, and he declined to dismiss any of the multiple charges against Mr. Drake.  But he ruled for the defense in deciding that Mr. Drake could present evidence that he was acting as a whistleblower, and that he could also introduce newspaper articles from the Baltimore Sun reflecting his input.

The arguments themselves were at least as interesting as the resulting decisions, and they recapitulated many longstanding disagreements about using the espionage statutes to prosecute leaks.  “Both sides have presented excellent legal briefings…, and the quality of the legal argument is obvious for all to see,” said Judge Bennett.

The court rejected defense motions arguing that the espionage statutes were unconstitutionally vague or overbroad, and also refused to dismiss five counts against Mr. Drake charging him with unlawful retention of information protected by the Espionage Act.

But crucially for the defense, the court ruled that “the fact that your client was acting as a whistleblower” could be introduced at trial because it relates to the question of the defendant’s “intent.”  To gain a conviction, prosecutors must prove that the defendant acted with specific intent to violate the law. (The court also admitted an amicus brief [pdf] prepared by the Government Accountability Project which argued that Mr. Drake’s whistleblower role was entitled to First Amendment protection.)

And the court granted a defense motion to introduce certain newspaper articles, over prosecution objections.  “We need to be able to the show the jury that none of the classified information that the Government alleges they found in our client’s home is in the articles,” defense attorney James Wyda said.

However, Judge Bennett indicated that former Baltimore Sun reporter Siobhan Gorman, who wrote the news stories involving information she allegedly obtained from Mr. Drake, would not be called to testify.  “We’re not going down the path of having reporters called to the witness stand, because, you know, I’m not inclined to incarcerate a reporter who asserts a privilege,” the judge said.  “That’s the last thing we need right now…. To the extent that we even think about calling a reporter to the witness stand, I think we’re really going down a deep, dark hole here in terms of how this case would proceed and assertions of privilege and everything else.”

Prosecutors defended their proposal to employ the so-called “silent witness” rule, by which some evidence would be presented to a jury but not revealed in open court.  That would be tantamount to closing the trial, objected defense attorney Deborah L. Boardman, and would place the defense at a significant disadvantage.  “It is fraught with constitutional peril,” she said, “and the practical problems associated with it are incalculable.”  The court deferred a ruling on that question.

A copy of the transcript of the March 31 hearing on pre-trial motions in USA v. Thomas Drake was obtained by Secrecy News.

Before Mr. Drake’s trial begins, the court must hear arguments and issue rulings on the classified information (or agreed-upon substitutes for it) that may be introduced at trial under the provisions of the Classified Information Procedures Act.  The Congressional Research Service recently prepared an overview of that statute.  See “Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act” (pdf), March 31, 2011.

Next week, Mr. Drake will be awarded the “Ridenhour Prize for Truth-Telling” from the Nation Institute and the Fertel Foundation.

The Whistleblower Protection Enhancement Act (S.743), which would extend whistleblower protection to intelligence community employees, was introduced in the Senate yesterday.