Last week, prosecutors in the case of Thomas A. Drake, the former NSA official who is charged with unlawfully retaining classified information that he allegedly disclosed to a reporter, asked the court to hold a pre-trial conference on the use of the Classified Information Procedures Act (CIPA) in that case.

CIPA was passed by Congress in 1980 to regulate the disclosure of classified information in criminal prosecutions, such as espionage cases, and to prevent so-called “graymail,” in which a defendant threatens to release classified information in the hope of forcing the government to abandon the case.

In a nutshell, CIPA requires the defense to notify prosecutors and the court of any classified evidence it intends to introduce.  Courts must then determine if the classified evidence is admissible. If so, the government may propose an unclassified substitution that does not involve classified information.  But if the court finds that the unclassified substitution is inadequate to preserve the defendant’s right to a fair trial, and if the Attorney General objects to disclosure of the classified version, then the indictment may be dismissed.

Perhaps assuming that the judge (or the defense) was unfamiliar with the law, prosecutors in the Thomas Drake case filed a motion (pdf) explaining the meaning of each section of CIPA.

The purpose of their CIPA tutorial was “to inform the Court of the applicability of CIPA and its procedures to issues involving classified information that will arise before and during the trial of this case,” they wrote. See “Government’s Motion for Pretrial Conference Under Section 2 of the Classified Information Procedures Act,” May 5, 2010.

The development and early history of CIPA were reviewed by the Congressional Research Service in a March 2, 1989 report entitled “Classified Information Procedures Act (CIPA): An Overview.”

The use of CIPA to preserve defendants’ rights while protecting classified information in criminal trials presents a stark contrast with the absence of any comparable procedure in civil trials, particularly those in which the government invokes the state secrets privilege to prevent the use of classified evidence.

“For almost 30 years, courts have effectively applied [CIPA] to make criminal trials fairer and safer,” the Senate Judiciary Committee noted in a 2008 report on the pending State Secrets Protection Act.  “Yet in civil cases, litigants have been left behind.”

“Congress has failed to provide clear rules or standards for determining whether evidence is protected by the state secrets privilege. We’ve failed to develop procedures that will protect injured parties and also prevent the disclosure of sensitive information. Because use of the state secrets privilege has escalated in recent years, there’s an increasing need for the judiciary and the Executive to have clear, fair, and safe rules,” the Judiciary Committee report said.

A legislative response to the problems posed by the unilateral use of the state secrets privilege by the executive branch remains to be accomplished.

New reports on nuclear policy prepared by the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“The New START Treaty: Central Limits and Key Provisions,” May 3, 2010.

“2010 Non-Proliferation Treaty (NPT) Review Conference: Key Issues and Implications,” May 3, 2010.

“Securing Nuclear Materials: The 2010 Summit and Issues for Congress,” April 16, 2010.

Officials of the Environmental Protection Agency intentionally stopped keeping records concerning potentially hazardous landfills in New Mexico in order to circumvent the disclosure requirements of the Freedom of Information Act.  They also marked unclassified records as “confidential” in order to restrict their dissemination, a report (pdf) from the EPA Inspector General found.

One EPA official told the IG that “her section discontinued record keeping in favor of undocumented phone calls and conversations … to prevent the production of documents…. [She] informed us that her section had discontinued record keeping… because of … requests for information under the Freedom of Information Act” that had been filed by Citizens Action New Mexico, a public interest group investigating potential contamination of Albuquerque’s groundwater.

The Inspector General report said that failure to document agency activities is a violation of EPA policy and federal law, which require the preparation and preservation of “adequate and proper” records of agency functions, decisions and transactions.

Another EPA official “withheld [a document] from the public by marking it Confidential, a security classification category” even though it “contained no classified information.”  Officials said they only meant to indicate that the document was a deliberative draft, not that it was classified.  But the IG said that too is a violation of agency policy, which prohibits the use of classification markings on unclassified records.

The Inspector General said that because of defective record keeping, it was unable to determine whether EPA oversight of the New Mexico landfills was actually satisfactory or not.

In a response to the IG, the regional EPA office firmly “denied its staff took inappropriate steps to withhold information from the public.”  But the EPA response “did not address evidence presented in the report that … staff intentionally stopped documenting discussions to avoid responding to the public’s FOIA requests,” the IG countered.

The EPA also replied that “the term ‘confidential’ is commonly used throughout the Agency for many documents” and does not imply that the documents are classified.  But if so, this practice is “in violation of EPA security policies,” the IG said, since the “confidential” label is strictly reserved for classified records.

In a lengthy reply appended to the IG report, the regional EPA office said it did not concur with the findings or the recommendations of the Inspector General, and that local EPA officials had done nothing wrong.  Because of the non-concurrence and the resulting impasse, the issue will be elevated to the EPA deputy administrator for resolution.  See “Region 6 Needs to Improve Oversight Practices,” Office of Inspector General, U.S. Environmental Protection Agency, April 14, 2010.

The IG report was first reported by John Fleck of the Albuquerque Journal on April 16, and was also covered by Superfund Report on May 3.

From a secrecy policy point of view, the new report illustrates the potential for active Inspector General oversight of agency classification practices, but also the possible limitations of such oversight.  The IG pursued its mandate fearlessly and relentlessly, and presented its conclusions forthrightly, even though they were unwelcome to the agency.  On the other hand, the IG investigation did not succeed in resolving the issues it raised, at least not yet.  Worse, “the estimated cost of this report… is $272,846,” the 28-page IG report stated, which is equivalent to an astounding and unsustainable $10,000 per page.

The latest volume of the official “Foreign Relations of the United States” (FRUS) series was published by the State Department yesterday on the topic of Korea, 1969-1972.  It covers U.S. relations with the Republic of Korea as well as disputes with North Korea during the Nixon Administration.

Remarkably, declassification of the 489-page FRUS volume (pdf) took no less than six years.

“The declassification review of this volume, which began in 2003 and was completed in 2009, resulted in the decision to withhold 1 document in full, excise a paragraph or more in 5 documents, and make minor excisions of less than a paragraph in 17 documents,” according to the Preface of the new volume.  Another FRUS volume on Japan during the same period also entered declassification review in 2003, but has still not emerged into the light of day.

This is no way to run a history program, historians and archivists agree.  But without profound changes in declassification procedures the current backlog of records awaiting declassification is going to grow, not shrink, said Michael J. Kurtz of the National Archives.  The Archives typically processes 11 million pages per year for declassification, Mr. Kurtz told the Public Interest Declassification Board on April 22, but it takes possession of an additional 15 million pages of classified records each year, for a net increase in classified historical files.

In December 2009, President Obama ordered that the backlog of more than 400 million pages of 25 year old classified records must be declassified and made publicly available by the end of December 2013.  Meeting that deadline will require the new National Declassification Center to increase the current declassification capacity tenfold to 100 million pages per year, Mr. Kurtz said.  To achieve this ambitious goal, the Archives is subjecting its declassification practices to a “business process reengineering” review that is supposed to eliminate repetitious, wasteful or counterproductive declassification activities and improve productivity.

Leaders of more than a dozen public interest organizations and professional societies wrote to Defense Secretary Robert M. Gates to applaud two recent achievements in nuclear weapons transparency: the publication of the Nuclear Posture Review Report for the first time in unclassified format and the disclosure of the size of the U.S. nuclear stockpile.

“We believe that the public release of the unclassified NPR Report is a significant and long-overdue step in the maturation of our national nuclear policy,” the public interest groups wrote.  “Release of the unclassified NPR Report will not resolve the continuing debate over the future of nuclear weapons policy, but it will enable it to proceed on a more informed basis.”

“Similarly, the declassification of the current nuclear stockpile is an historic milestone both in nuclear weapons policy and in classification policy…. We believe this disclosure will serve to strengthen what should be an international norm of increasing transparency on nuclear matters.  By leading through example, we hope the U.S. action will elicit a response in kind from other nuclear nations.”

“We also look forward to further steps, including the Department’s future implementation of the Fundamental Classification Guidance Review that was required by the President’s executive order…. This initiative should help to eliminate other obsolete or unnecessary classification restrictions.”

The May 4 letter was coordinated by OpenTheGovernment.org.

Updated below

In an historic step, the U.S. Government will formally reveal the number of nuclear weapons in the U.S. arsenal.

Until now, the shifting size of the nuclear arsenal had only been declassified from 1945 up to 1961.  Current stockpile figures were the subject of more or less informed speculation.  The pending disclosure was first reported by the Washington Post.

Among other things, the declassification of the nuclear stockpile is a milestone in secrecy reform.  It means that what must be the single most significant number in the domain of national security policy will now be in the public domain.  It will also set a standard by which the nuclear transparency policies of other nations may be assessed.

If there is any cause for dismay in today’s announcement, it is that it took so long to accomplish.  The Department of Energy, which has the highest concentration of nuclear weapons expertise in the federal government, had proposed declassification of stockpile size as early as 1992, as noted in a 2000 DOE fact sheet on the subject.  But the DOE proposal was blocked by the Department of Defense.

Other DOE declassification proposals that have been stymied would have disclosed the explosive yield of retired or dismantled nuclear weapons (blocked by DOD), and the locations of former nuclear weapons storage sites abroad (blocked by DOD and State).  An Energy Department classification official told Secrecy News last week that the Department also favors public disclosure of the budget of the DOE Office of Intelligence (which had been public information up until 2004), but that the Director of National Intelligence had vetoed the move.

“We get blamed for a lot of stuff that’s not our fault,” the DOE official said.

Update: The newly declassified stockpile data were released by the Department of Defense in Fact Sheet: Increasing Transparency in the U.S. Nuclear Weapons Stockpile (pdf), May 3, 2010. A DoD background briefing on the new disclosure is here.

A federal court ruled (pdf) last year that the Department of Energy was obliged to disclose certain records concerning the Advanced Test Reactor (ATR) in Idaho after they were requested under the Freedom of Information Act by a public interest group, Keep Yellowstone Nuclear Free.  The court said that the exemptions to the FOIA claimed by DOE were not applicable in this case, and that the requested documents therefore must be released.

In order to prevent that from happening, DOE decided to designate portions of the records as “Unclassified Controlled Nuclear Information” or UCNI, which is protected by the Atomic Energy Act, and beyond the reach of FOIA.  “The documents have not previously been treated as UCNI,” DOE admitted to the court (pdf) last year, “and information related to the ATR has not been treated as UCNI since 1992, but” — prompted by the judge’s adverse FOIA ruling — “DOE has now determined that redacted portions of these documents fall within the statutory definition of UCNI.”

While there is abundant historical reason (pdf) to be skeptical of such opportunistic attempts to evade public disclosure, there is no specific reason to doubt that DOE acted in good faith in this case.  It may well be true that release of the withheld portions of the records — describing high consequence accident scenarios and locations of vital safety and security systems — could facilitate a “potentially catastrophic” act of sabotage, as DOE officials contended.

The FOIA requesters themselves agreed to accept the documents as redacted for UCNI.  The parties reached a settlement and the case was dismissed. Keep Yellowstone Nuclear Free declared victory with the receipt of some 1100 pages documenting ATR safety issues.

Last week, DOE’s Karl Hugo, who participated as a government classification expert in the case, presented his view of the issues (pdf) to a conference of DOE classification officers in Germantown, Maryland.  Two months ago, DOE issued an updated Order on “Identification and Protection of Unclassified Controlled Nuclear Information” (pdf) (DOE Order O471.1B, March 1, 2010).  Within weeks, the Obama Administration is expected to issue a somewhat controversial new executive order that is intended to standardize the use of controls on unclassified information across the government.

The Chief Justice of the United States has appointed Judge Martin L.C. Feldman of the Eastern District of Louisiana to a seven-year term on the Foreign Intelligence Surveillance Court, effective May 19, 2010.  He replaces Judge George P. Kazen, whose term on the Court ends this month.

Judge Feldman’s appointment to the FISA Court has not been publicly announced, but it was confirmed for Secrecy News on Friday by Mr. Sheldon L. Snook of the DC District Court, who also serves as a spokesman for the secretive FISA Court.

The FISA Court reviews and approves government applications for counterintelligence surveillance and physical search under the Foreign Intelligence Surveillance Act.  The updated Court membership for 2010 may be found here.

Judge Feldman was appointed to the bench by President Reagan in 1983.  Among his various other credentials and affiliations, he has served as an advisor to the “Court Appointed Scientific Experts” program of the American Association for the Advancement of Science, which assists courts in identifying scientific experts who can serve in judicial proceedings.

Judge Feldman was in the news earlier this year after he ruled in favor of the non-profit journalism organization ProPublica, finding that it had not committed libel in a news story about the mistreatment of medical patients following Hurricane Katrina.  The news story in question, written by ProPublica reporter Sheri Fink and published in the New York Times Magazine, subsequently won a Pulitzer Prize for Investigative Reporting.

The pending prosecution of former National Security Agency official Thomas A. Drake, who was alleged to be a source of classified information in a series of newspaper articles about the NSA, will present “novel” legal issues for the court to consider, prosecutors and defense attorneys said in a joint motion last week.

“The indictment raises complex factual and legal issues and novel questions of law relating to, among other things, the retention of classified materials,” they wrote in an April 29 motion (pdf) to waive the right to a speedy trial.

Unlike former DoD official Larry Franklin in the troubled AIPAC case (which was abandoned by the government before trial last year), Mr. Drake was not charged with unauthorized disclosure of classified information.  Instead, he is accused of “willful retention of classified information.”  The precise nature of this offense, and the threshold for culpability in this case, remain to be litigated.

“The prosecution of this case will involve classified documents,” the joint motion stated, and the defense “may involve classified documents,” necessitating that defense counsel obtain the required security clearances.  “The pre-indictment investigation in this case spanned more than two years,” the motion noted, though defense counsel was not appointed until after the indictment (pdf) issued.

A trial date has been tentatively scheduled for October 18, 2010.

Incidents of fratricide in the U.S. war on terrorism increased in recent years, according to a new report (pdf) from the U.S. Army.

“Fratricide” — the unintended killing or injury of friendly forces — “is a harsh reality during combat operations,” the study states.  “Over the course of 2004-2007, the number of fratricide incidents increased, and experts speculate this is due to the high operational tempo and the reliance on technology during the current war.”

According to official data, “there were 55 U.S. Army fratricide incidents from 11 September 2001 to 30 March 2008.  Forty of these were Class A accidents” — involving damage costs of $2 million or more and/or destruction of an Army aircraft, missile or spacecraft and/or fatality or permanent total disability — “resulting in the deaths of 30 U.S. Army personnel.”

Human error is a primary causal factor in many fratricide incidents, the study indicated, and “therefore, human error must be considered in the design and development of fratricide countermeasures, including both technical and human-centric solutions… Improved supervision and leadership may have the greatest potential to reduce U.S. fratricide incidents.”

See “An Analysis of U.S. Army Fratricide Incidents during the Global War on Terror (11 September 2001 to 31 March 2008)” by Catherine M. Webb and Kate J. Hewett, U.S. Army Aeromedical Research Laboratory, March 2010.

Although the U.S. Constitution assigned the power to declare war to Congress, the use of armed forces has often been initiated by the President without congressional authorization.  The enactment of the War Powers Resolution in 1973 was an attempt by Congress to reassert its constitutional role and to regulate military action by the executive branch.  For the most part, it failed to accomplish those goals.

“The main purpose of the Resolution was to establish procedures for both branches to share in decisions that might get the United States involved in war,” a new report (pdf) from the Congressional Research Service (CRS) observes. “The drafters sought to circumscribe the President’s authority to use armed forces abroad in hostilities or potential hostilities without a declaration of war or other congressional authorization, yet provide enough flexibility to permit him to respond to attack or other emergencies.”

“But the record of the War Powers Resolution since its enactment has been mixed, and after 30 years it remains controversial,” the CRS report said.

The new report documents that mixed record, listing all of the instances from 1973 to December 2009 in which Presidents submitted reports to Congress under the Resolution, as well as instances of the use of U.S. armed forces that were not reported.  See “The War Powers Resolution: After Thirty-Six Years,” April 22, 2010.

For reasons that defy easy comprehension, Congress does not believe that CRS reports should be made readily available to members of the public, so identifying and acquiring reports of interest takes a bit of extra effort.  Noteworthy new CRS reports obtained by Secrecy News include the following (all pdf).

“Monitoring and Verification in Arms Control,” April 21, 2010.

“Emergency Communications: Broadband and the Future of 911,” April 27, 2010.

“Unauthorized Aliens in the United States,” April 27, 2010.

“Bangladesh: Political and Strategic Developments and U.S. Interests,” April 1, 2010.

“Guinea’s New Transitional Government: Emerging Issues for U.S. Policy,” April 23, 2010.

The Department of Defense denied security clearances to 8,065 individuals in 2008, according to a recent congressional hearing volume.  “These numbers represent a small percentage of the total number of security clearance investigations.  The vast majority of investigations are adjudicated favorably.”  See “Security Clearance Reform: Moving Forward on Modernization,” Senate Homeland Security and Governmental Affairs Committee, September 15, 2009 (published April 2010). (Update: The statistics on clearance denials are given on page 92 of the PDF version of the hearing.)

Among other recently published congressional hearing volumes on national security topics are these:

“An Uneasy Relationship: U.S. Reliance on Private Security Firms in Overseas Operations” (pdf), Senate Homeland Security and Governmental Affairs Committee, February 27, 2008 (published March 2010).

“Reauthorizing the USA PATRIOT Act: Ensuring Liberty,” Senate Judiciary Committee, September 23, 2009 (published April 2010).

“A Strategic and Economic Review of Aerospace Exports” (pdf), House Foreign Affairs Committee, December 9, 2009 (published April 2010).