The ongoing release of U.S. diplomatic communications by the Wikileaks organization is “embarrassing” and “awkward,” said Secretary of Defense Robert M. Gates yesterday, but its consequences for U.S. foreign policy are likely to be “fairly modest.”

“I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on.  I think those descriptions are fairly significantly overwrought. The fact is, governments deal with the United States because it’s in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets… Other nations will continue to deal with us. They will continue to work with us. We will continue to share sensitive information with one another.”

Coming from the Secretary of Defense, that measured statement should help to deflate some of the more extreme reactions to the Wikileaks action.

The Obama Administration should “use all legal means necessary to shut down Wikileaks before it can do more damage by releasing additional cables,” said Sen. Joe Lieberman on November 28.

Wikileaks leader Julian Assange should be designated an enemy combatant, suggested Rep. Steve King (R-IA) on the House floor yesterday.  Then he could be “moved over to a place offshore of the United States outside of the jurisdiction of the Federal courts…, and adjudicated under a military tribunal in a fashion that was designed by this Congress and directed by this Congress. That’s what I’m hopeful that we’ll be able to do.”

Such fantastic notions probably cannot survive the judgment of the U.S. Secretary of Defense that what is at stake is “embarrassment” and “awkwardness,” not the defense of the realm.

That does not mean that the policy consequences of the latest Wikileaks release will be insignificant.  Information sharing within the government is already being curtailed, and avenues of public disclosure may be adversely affected by the Wikileaks controversy. In a November 28 email message to reporters, the Pentagon spelled out several security measures that have already been implemented to restrict and monitor the dissemination of classification information in DoD networks.

“Bottom line: It is now much more difficult for a determined actor to get access to and move information outside of authorized channels,” wrote Pentagon spokesman Bryan Whitman.

Meanwhile, the Office of Management and Budget ordered (pdf) each agency that handles classified information to perform a security review of its procedures and to reinforce the traditional “need to know” requirements that strictly limit individual access to classified information.

“Any failure by agencies to safeguard classified information pursuant to relevant laws, including but not limited to Executive Order 13526, Classified National Security Information (December 29, 2009), is unacceptable and will not be tolerated,” the OMB memo stated.

The possibility of prosecuting Wikileaks as a criminal enterprise is reportedly under consideration, and has been publicly urged by some members of Congress and others.  The feasibility of such a prosecution is uncertain, and nothing quite like it has been attempted before.  The most “promising” legal avenue of attack against Wikileaks would seem to be a charge of conspiracy to violate the Espionage Act (under 18 USC 793g), based on the allegation that Wikileaks encouraged and collaborated with others in violating the terms of the Act.  But these are dangerous legal waters, fraught with undesirable consequences for other publishers of controversial information.

As confidential U.S. diplomatic documents continue to enter the public domain, it is worth remembering that not everything that is written down in a government document, even (or especially) in a classified document, is necessarily true.  “Truth telling” involves a bit more than trafficking in official records.  Any historian or archival researcher knows that.  So did the Soviet agent Kim Philby, who addressed the issue in his 1968 book “My Silent War” (p. 255):

“It is difficult, though by no means impossible, for a journalist to obtain access to original documents.  But these are often a snare and a delusion.  Just because a document is a document, it has a glamour which tempts the reader to give it more weight than it deserves. This document from the United States Embassy in Amman, for example. Is it a first draft, a second draft or the finished memorandum? Was it written by an official of standing, or by some dogsbody with a bright idea? Was it written with serious intent or just to enhance the writer’s reputation? Even if it is unmistakably a direct instruction to the United States Ambassador from the Secretary of State dated last Tuesday, is it still valid today?  In short, documentary intelligence, to be really valuable, must come as a steady stream, embellished with an awful lot of explanatory annotation. An hour’s serious discussion with a trustworthy informant is often more valuable than any number of original documents.”

“Of course, it is best to have both,” he added.

Nuclear physicist Sam Cohen died Sunday at age 89, the Washington Post reported in an obituary today. Cohen, a veteran of the Manhattan Project, conceived, designed and advocated development of the neutron bomb, a high-radiation anti-personnel weapon.

He cordially despised the Federation of American Scientists, which didn’t stop him from writing and calling us regularly to discuss his bodily ailments, the history of nuclear weapons, classification policy, and whether or not former Secretary of Energy Hazel O’Leary was the devil’s spawn.

In 2000, Sam Cohen authored and self-published a book called “Shame.” It is an almost unbearably candid memoir of the author’s abusive childhood, which left him deeply scarred, and a description of how his views of nuclear weapons emerged as a result.  It is a neglected classic.  We reviewed it here.  Rest in peace.

The massive disclosure of a quarter million diplomatic records by Wikileaks this weekend underscores the precarious state of the U.S. national security classification system.

The Wikileaks project seems to be, more than anything else, an assault on secrecy.  If Wikileaks were most concerned about whistleblowing, it would focus on revealing corruption.  If it were concerned with historical truth, it would emphasize the discovery of verifiably true facts.  If it were anti-war, it would safeguard, not disrupt, the conduct of diplomatic communications.  But instead, what Wikileaks has done is to publish a vast potpourri of records — dazzling, revelatory, true, questionable, embarrassing, or routine — whose only common feature is that they are classified or otherwise restricted.

This may be understood as a reaction to a real problem, namely the fact that by all accounts, the scope of government secrecy in the U.S. (not to mention other countries) has exceeded rational boundaries.  Disabling secrecy in the name of transparency would be a sensible goal — if it were true that all secrecy is wrong.  But if there is a legitimate role for secrecy in military operations, in intelligence gathering or in diplomatic negotiations, as seems self-evident, then a different approach is called for.

Although it has rarely been front-page news, important progress has been made this year in shifting U.S. government secrecy policy away from its cold war roots, and promoting greater discernment and discrimination in the use of national security classification.

In May, the U.S. government formally disclosed the current size of the U.S. nuclear weapons arsenal for the first time (5,113 warheads as of September 30, 2009).  Declassification of this information, which is integral to future arms control and disarmament efforts, had been sought — and resisted — for decades.  That battle for public disclosure has now been won.  Also this year, the Report of the Nuclear Posture Review, the basic statement of U.S. nuclear weapons policy, was produced and released in unclassified form for the first time.

In September, the Director of National Intelligence and the Secretary of Defense revealed the total intelligence budget ($80.1 billion in FY2010) as well as its “national” ($53.1 billion) and military ($27 billion) components.  This is a more complete and detailed disclosure of U.S. intelligence spending than has ever been provided before.  (An aggregate figure — with no further breakdown — was disclosed in 1997 and 1998.)  It also represents a major policy reversal.  Just a few years ago, intelligence community leaders swore under penalty of perjury that disclosure of this information would damage national security and compromise intelligence methods.  Now annual intelligence budget disclosure is the new norm.

These are not cosmetic changes.  They represent real discontinuities with past practice.  Stockpile secrecy and intelligence budget secrecy have each been cornerstones of entire edifices of national security classification that will now be susceptible to change.  And in each case their disclosure is the culmination and the successful fruition of years or even decades of advocacy, agitation and litigation by the Federation of American Scientists and other organizations and political leaders.

In fact, the deepest significance of these disclosures may lie in the fact that they demonstrate the feasibility of effective public advocacy in national security secrecy policy.  If a half century of nuclear stockpile secrecy and intelligence budget secrecy can be overturned in favor of public disclosure, then citizens can confidently seek the release of many other, less deeply entrenched official secrets as well as a continuing reduction in the overall scope of the secrecy system.

Of course, efforts to reduce government secrecy have not been uniformly successful.  For example, the Obama Administration’s use of the state secrets privilege to derail litigation on sensitive national security topics is indistinguishable from that of the Bush Administration, despite a September 2009 policy change promising “greater accountability” and more limited use of the privilege.  Moreover, it appears that the Obama Justice Department has failed to fulfill its own policy of referring to agency Inspectors General any legitimate cases against the government that could not be litigated because of the state secrets privilege.  (We are still attempting to confirm and to document that this is indeed the case.)  Nor has it offered any other alternative remedy to those who may have been wronged by U.S. government actions concealed by state secrets claims.

But even when the wheels of progress move slowly — or slip into reverse — proponents of greater openness are not helpless.  At Secrecy News, we have tried to shine a spotlight on the mechanics of secrecy, and to provide our own almost daily disclosures of official documents of public policy value that are somehow restricted or otherwise hard to find.  Not just because they are restricted, but because they are also of public policy value.  Over the past year, Secrecy News produced unique coverage of numerous important secrecy stories.  For example:

**  Leaking classified information may be the right thing to do in certain circumstances, suggested district court Judge T.S. Ellis III at a 2009 hearing, “but you have to stand up and take the consequences.”  We obtained and released the previously unpublished transcript of that remarkable hearing last March.  (“Judge: If You Leak Classified Info, Take the Consequences,” March 22).

**  We offered the most complete and in-depth reporting of the dispute between Congress and the executive branch over Government Accountability Office access to intelligence information.  We provided related documentation including a 1988 Office of Legal Counsel opinion and a new Department of Defense directive on GAO access to highly classified DoD special access programs.  In congressional testimony and public advocacy, we also argued in favor of an increased role for GAO in intelligence oversight.  Despite a veto threat from the White House earlier this year, a favorable resolution of the matter now seems to be within reach. (“GAO Gains a Foothold in Intelligence Oversight,” September 29).

**  We maintained and expanded our online library of reports from the JASON defense science advisory board.  Ours is the most complete public collection  of these consistently interesting and influential studies.

**  We obtained and published numerous unreleased reports from the DNI Open Source Center, such as a March 2010 report on Turkey’s mysterious underground Ergenekon movement.

**  We spent more time than we would have liked criticizing the Wikileaks organization, whose spectacular releases of large collections of classified documents continue to generate controversy.  From our perspective, Wikileaks has been inattentive to the unintended consequences of its actions, careless about putting individuals in harm’s way, particularly in the case of the Afghan war records, and ethically deficient in its invasions of personal privacy.  (In its latest release, Wikileaks did redact some names of individuals and some other sensitive information.)

**  With other like-minded organizations (and, in this case, a remarkably responsive White House), we helped prevent the creation of an ominous new information control system for so-called Controlled Unclassified Information.  Instead of constituting a fourth level of classification, the new CUI marking should simply facilitate information sharing without providing authority for any new restrictions on information. (“A New Policy on Controlled Unclassified Info,” November 4).

**  We obtained and published a previously undisclosed 2009 report from the Intelligence Science Board on the virtues of non-coercive interrogation.  We also reported that the DNI had disbanded the ISB this year.

**  We published hundreds of Congressional Research Service reports that had not previously been made available to the public, and numerous other popular records from a three-volume description of the Soviet army to the U.S. Army’s latest weapons system handbook to a speculative scientific paper on “interstellar archeology.” And quite a bit more.

It’s impossible to say whether the race to fix the classification system can be won through our kind of advocacy from the outside and by enlightened self-interest within government.  Before that happens, classification itself could be rendered moot and ineffective by leaks, abuse or internal collapse.  Or, in a reflexive response to continuing leaks, officials might seek to expand the scope of secrecy rather than focusing it narrowly, while increasing penalties for unauthorized disclosures.

But in the coming year, we see some promise in what is called the Fundamental Classification Guidance Review.  This is a procedure (mandated in executive order 13526, section 1.9) for every agency that classifies information to seek out, identify and remove classification requirements that are no longer valid.  In effect, it provides an opportunity and a mechanism for rewriting the “software” of the entire classification system.  Though success is not guaranteed, we expect the Review to produce a measurable reduction in the scope of national security classification.  We plan to monitor its progress as closely as we can.

Finally, we want to ask for your help.  If you identify with our approach and you derive value from the work that we are doing, then we encourage you to help sustain it for another year with a tax-deductible contribution.  Although we make our online resources freely available to everyone who wants them, we incur costs in collecting, analyzing, and publishing them as well as in our related advocacy activities.  If you can help us with that, please do.

Donations can be made online here (select “Government Secrecy” in the drop-down menu to allocate your donation for the FAS Project on Government Secrecy).  Donors who contribute $25 or more will automatically be enrolled as members of the Federation of American Scientists (unless you prefer not to be). Donations can also be made by sending a check made out to Federation of American Scientists and earmarked for Secrecy News to this address:

Attn: Secrecy News
Federation of American Scientists
1725 DeSales Street NW, Suite 600
Washington, DC  20036

An unclassified U.S. Army history of military intelligence that was formerly used as a textbook in officer training at the Army Intelligence Center at Fort Huachuca is now publicly available online (large pdf).

The 1973 volume has been superseded in many or even most respects by subsequent research and publication. But it retains some interest as a snapshot of the contemporary self-understanding and presentation of military intelligence. “It remains one of the best overviews of the history of Army Intelligence, although it is dated,” one admirer of the document told Secrecy News.

According to the Preface, “This history concentrates on intelligence support to tactical forces since, in truth, this is where military intelligence, per se, receives its greatest visibility and its greatest importance.”

See “The Evolution of American Military Intelligence” by Marc B. Powe and Edward Wilson, U.S. Army Intelligence Center and School, Fort Huachuca, AZ, May 1973.

A $60 billion arms sale to Saudi Arabia — the largest in U.S. history — is poised to proceed despite questions raised by some members of Congress. In a November 16 letter to Congress (pdf), Secretary of Defense Robert Gates and Secretary of State Hillary Clinton defended the deal:

“This proposed sale will directly support U.S. interests by reinforcing our longstanding defense and security partnership with Saudi Arabia, enhancing Saudi Arabia’s ability to deter and defend itself against terrorist groups and other regional threats, improving interoperability with the U.S. military, and sending a strong message to all countries that the United States is committed to supporting the security of its key partners and allies in the Gulf and broader Middle East,” they wrote.

Members of Congress had written to the Administration on November 12 (pdf) “to raise concerns and pose a number of strategic questions about the impact such sales would have on the national security interests of the United States and our allies.” The Gates-Clinton letter was written in response.

The Supreme Court will decide next year whether corporations are entitled to “personal privacy” and whether they may prevent the release of records under the Freedom of Information Act on that basis.  FOIA advocates say that assigning personal privacy rights to corporations could deal a crippling blow to the Act.

The case before the Court — known as FCC v. AT&T — arose from a FOIA request to the Federal Communications Commission for records of an investigation of a government contract held by AT&T.  The FCC found that the requested records were subject to release under FOIA.  But AT&T challenged that decision and won an appeals court ruling that the documents were law enforcement records that were exempt from disclosure because their release would constitute “an unwarranted invasion of personal privacy” — namely, the “personal privacy” of AT&T.

The appeals court noted that the word “person” is defined in the Administrative Procedures Act (APA) to include corporations, and it went on to infer from this that the FOIA exemption for “personal privacy” in law enforcement records must logically extend to corporations as well.

But “that analysis does not withstand scrutiny,” the government argued in its petition (pdf) to the Supreme Court for review of the case.  Personal privacy can only apply to individual human beings, it said, and not to other entities.  “The court of appeals’ novel construction would erroneously create a new and amorphous ‘privacy’ right not only for corporations but also for local, state, and foreign governments [which also fall under the APA definition of ‘person’].”

A concise description of the pending case as well as key case files and amicus briefs filed with the Supreme Court by several FOIA advocacy organizations are conveniently available from the Electronic Privacy Information Center.  (EPIC prepared one of the amicus briefs and I was among the signatories to it.)

Corporate information that qualifies as a “trade secret” has long been exempt from disclosure under the FOIA.  But prior to this case, no court had ever held that a corporation also has personal privacy rights.

If affirmed by the Supreme Court, the appeals court ruling “could vastly expand the rights of corporations to shield their activities from public view,” said Sen. Patrick Leahy this week, and it “would close a vital window into how our government works.”

“Congress never intended for this [personal privacy] exemption to apply to corporations,” he said.  “I also fear that extending this exemption to corporations would permit corporations to shield from public view critical information about public health and safety, environmental dangers, and financial misconduct, among other things — to the great detriment of the people’s right to know and to our democracy.”

“I sincerely hope that our nation’s highest Court… will narrowly construe the personal privacy exemption, consistent with congressional intent,” said Sen. Leahy. “Should the Court decide to do otherwise, I will work with others in the Congress to ensure that FOIA, and specifically the personal privacy exemption for law enforcement records, remains a meaningful safeguard for the American people’s right to know,” he said.

FCC v. AT&T is scheduled to be argued before the U.S. Supreme Court on January 19, 2011.

Director of National Intelligence James R. Clapper went a little out of his way to praise the Government Accountability Office at a Senate hearing on security clearance reform on November 16. “I’d be remiss if I didn’t recognize the crucial role that GAO continues to play in keeping the heat on the executive branch for security clearance reform and, also, on areas they have identified where more work is required,” DNI Clapper told a subcommittee hearing chaired by Senator Daniel Akaka.

As required by the FY2010 intelligence authorization act, the DNI is preparing a directive to authorize and regulate GAO access to intelligence information, a step that should portend an increased role for GAO in intelligence oversight. In the future, GAO access to intelligence “will be similar to the GAO’s access to the Department of Defense’s Special Access Programs,” suggested Sen. Rockefeller.

In pursuing a new cybersecurity agenda, “the government must be as transparent as possible with the American people,” said Sen. Sheldon Whitehouse yesterday. “I doubt very much that the Obama administration would abuse new authorities in cyberspace to violate Americans’ civil liberties. But on principle, I firmly and strongly believe that maximum transparency to the public and rigorous congressional oversight are essential. We have to go about this right.”

Retiring Senate Intelligence Committee Vice Chairman Christopher Bond offered his valedictory thoughts on intelligence policy on the Senate floor yesterday, launching darts in multiple directions.  Among other recommendations, he called for an increased number of prosecutions to combat leaks.

“We must first deter and neutralize the leakers. There should be significant criminal, civil, and administrative sanctions that can be imposed on leakers. Leakers should face significant jail time, pay heavy fines, forfeit any profits, lose their pensions, and be fired from their jobs. We should also not allow the first amendment to be used as a shield for criminal activity. It should be a crime to knowingly solicit a person to reveal classified information for an unauthorized purpose or to knowingly publish or possess such information. Leaks will not stop until a significant number of leakers have been appropriately punished,” Sen. Bond said.

Technically, any alert reader of national newspapers “possesses” classified information and would therefore be criminally liable under Senator Bond’s rash formulation.

Investment banker Maurice Sonnenberg was appointed this week to the National Commission for the Review of the Research and Development Programs of the U.S. Intelligence Community.  The most surprising thing about the appointment was its predictability.

If national commissions on intelligence were a TV game show, Maurice Sonnenberg would be Kitty Carlisle or Orson Bean.  In other words, he is a perennial member of a seemingly endless series of blue-ribbon panels, task forces and commissions.

He was senior adviser to the 1996 Commission on the Roles and Capabilities of the U.S. Intelligence Community (the Aspin-Brown Commission), a member of the 1997 Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission), the Vice Chairman of the 2000 National Commission on Terrorism (the Bremer Commission), and an original member of the 2003 National Commission for the Review of the Research and Development Programs of the U.S. Intelligence Community, which lapsed in 2004. The latter Commission has recently been revived, and Mr. Sonnenberg’s reappointment to it is what was announced this week.  He also previously served on the President’s Foreign Intelligence Advisory Board during the Clinton Administration.

Mr. Sonnenberg accepts his role with grace.  “I’m quite content that people ask me for my views,” he told the New York Sun in 2005. “But does that elevate me to the pantheon of great thinkers? I doubt it. My hat size hasn’t changed. If I take a bus, it still costs me $2 a ride.”

“It’s sometimes helpful to talk to people who’re at the levers of power,” he admitted. “Perhaps that way one has enjoyed some influence on policy.”

The new National Commission was restored by Congress to perform a “review of the full range of current research and development programs within the responsibility of the Intelligence Community with the goal of ensuring a unified research and development program across the entire Community.”

“Litigation Under the Federal Open Government Laws 2010” is the latest edition of a classic handbook for Freedom of Information Act litigants.  It provides an updated summary of the relevant case law and a discussion of many of the most commonly encountered issues and obstacles a FOIA litigator may face.  Any FOIA requester or attorney who is contemplating a FOIA lawsuit will want to study it closely. The new edition was edited by Harry A. Hammitt, Ginger McCall, Marc Rotenberg, John A. Verdi, and Mark S. Zaid.

“These Guys: Cold War Stories told by Cold War Warriors” is an anthology of personal reminiscences from former members of the U.S. Air Force Security Service concerning their experiences in U.S. military and intelligence service.  It was edited by Trish Schiesser.

“The Dangers of Dissent” by Ivan Greenberg explores the modern history of FBI domestic surveillance, bolstered by records obtained by the author through FOIA litigation. The book “traces the evolution of FBI spying from 1965 to the present through the eyes of those under investigation.”

The use of access control markings such as the Transportation Security Agency’s “Sensitive Security Information” (SSI) to limit disclosure of unclassified records has been criticized from time to time as arbitrary and self-serving.  But now, due to a subtle change in the recent executive order on “Controlled Unclassified Information,” SSI and other such markings should receive new oversight and scrutiny.

In a preliminary draft (pdf) of the new executive order 13556 on Controlled Unclassified Information (at section 1.3b), four existing control markings were “grandfathered” into the new CUI system — Sensitive Security Information, Critical Infrastructure Information, Chemical Vulnerability Information, and Safeguards Information.  This means that they were presumptively approved for future use without any further review.

But in the final draft of the executive order approved by the President on November 4, that provision and those presumptive approvals were withdrawn.  Consequently, SSI and the other control markings will have to go through the same external review and approval process as other controls on unclassified information in order to qualify as CUI.

SSI and several other unclassified control categories are authorized in statute, so they cannot be categorically eliminated or disapproved by the CUI Executive Agent.  But what the CUI review process can do is to help ensure that what agencies claim is SSI really does fall into that category.

This became a live issue recently when the Transportation Security Administration moved to seal a lawsuit brought by a former TSA air marshal by claiming that the names of officials who disciplined and removed the air marshal are themselves SSI.  To outside observers, this appeared to be an abuse of the SSI control marking to gain tactical advantage in the lawsuit.  See “Why Is the TSA Keeping Air Marshal Employment Disputes Under a Veil of Secrecy?” by Nick Schwellenbach, Project on Government Oversight (POGO), November 2, 2010.

Eliminating the a priori approval of SSI markings from the CUI system should mean more scrupulous use of such markings, according to a government official involved in drafting the new executive order. “Treating them as any other allows oversight…to at least try to avoid the sort of alleged absurd decisions highlighted by POGO,” the official said.

In a revealing failure of Administration commitments to transparency, an official history of the U.S. government’s post-war pursuit of (or sometimes accommodation with) Nazi war criminals was obtained by the New York Times after the Department of Justice refused to release an unexpurgated version under the Freedom of Information Act.

The secret history was reported in “Nazis Were Given ‘Safe Haven’ in U.S., Report Says” by Eric Lichtblau in the New York Times, November 14.  The Times also posted the complete text of the document online.

A side-by-side review of the leaked and the redacted versions compels the conclusion that the Department of Justice exceeded its authority to withhold information from the public, and violated the disclosure requirements of the Freedom of Information Act. “Now that we can compare the redacted document with the complete text of the original report, it is clear that the Justice Department is withholding information without legal justification,” said attorney David Sobel, who represented the National Security Archive in its request for the document. “For an administration — and an Attorney General — supposedly committed to an ‘unprecedented’ level of transparency, this case provides a troubling example of how far the reality is from the rhetoric.”

But in a paradigmatic example of “a good leak” that advances the public interest, the unauthorized disclosure of the document succeeded where normal disclosure procedures failed.