A federal court last week rejected most of the objections raised by the Federal Bureau of Investigation to publication of a 500-page manuscript critical of the FBI counterterrorism program that was written by retired FBI Special Agent Robert G. Wright.  The manuscript had been submitted for pre-publication review in October 2001.

“This is a sad and discouraging tale,” wrote Judge Gladys Kessler in a May 6 order (pdf), referring to the FBI’s handling of the manuscript.

“In its efforts to suppress this information, the FBI repeatedly changed its position, presented formalistic objections to release of various portions of the documents in question, admitted finally that much of the material it sought to suppress was in fact in the public domain and had been all along, and now concedes that several of the reasons it originally offered for censorship no longer have any validity,” Judge Kessler observed.

The 41-page, partially redacted court ruling reviewed the facts of the pre-publication review dispute as well as the legal standards for official censorship of such materials, and dismissed all but one government objection to the manuscript.  The court also dismissed other government objections to release of written answers to interview questions submitted by then-New York Times reporter Judith Miller.

Three and a half years have passed since President Bush called for the establishment of a standardized government-wide format for the handling of “controlled unclassified information” (CUI) that would replace the dozens of different, incompatible controls on what had been known as “Sensitive But Unclassified” (SBU) information.  More than a year has passed since President Bush declared that the new CUI framework was established.

But in practice, little has changed because the implementing policies and procedures have not yet been devised.  An initial draft for comment is expected sometime this summer.  Meanwhile, agencies continue to follow their previous, often problematic approaches.

“Department of Defense components are not to use any of the new CUI markings until the national level interagency policy has been issued, the DoD-level implementation guidance has been published, and the DoD CUI Transition Plan is completed,” wrote Under Secretary of Defense James R. Clapper, Jr. in an internal memorandum (pdf) last month.  “Until such time, existing policy guidance pertaining to information such as For Official Use Only (FOUO), SBU, and DoD Unclassified Controlled Nuclear Information… must be strictly adhered to,” Gen. Clapper wrote.

The National Archives has requested $1.9 million for the Controlled Unclassified Information Office in FY 2010.  “The office will establish standards and guidance for this type of information, and monitor department and agency compliance.”

Aside from increasing uniformity of controls on information, limits on the authorized use of such controls and other policy provisions remain to be defined.

The CIA Historical Review Panel, an advisory group which is composed of academic historians and political scientists, provides the CIA with recommendations on its declassification policies and priorities.  The role of the Panel was described lately by its chairman, Prof. Robert Jervis, in the latest issue of Passport (pdf, at pp. 10-13), the newsletter of the Society for Historians of American Foreign Relations.

Prof. Jervis is a brilliant political scientist, but under his leadership the Historical Review Panel has not been notably effective and his description of the Panel’s activities suggests why this may be so.

As a matter of policy, he writes, the Panel operates in secret and does not disclose “the substance of the recommendations we have made” concerning CIA declassification policy.  Why not?  Because “heads of agencies are entitled to confidential advice.”  But while this may often be true of advice from agency employees, it is not true of all advice from anyone.  Panel members do not work for the CIA.  In fact, they are supposed to represent a broad public interest, not merely a personal or professional self-interest, and so they reasonably could be expected to interact with those they represent.  Instead, by yielding to CIA’s preference for secrecy, the Panel not only severs its connection with its own constituency, it also neutralizes its primary source of leverage, namely public opinion.

Thus Prof. Jervis notes in passing that some recent episodes of “bad publicity” generated by inappropriate CIA reclassification actions had taught agency officials to “realize… [the] high cost” of spurious classification activity.  But since the Historical Review Panel deliberately operates without publicity, it is unlikely to inspire any similar realizations on the part of agency officials.

Prof. Jervis writes that the Panel has “spent hours talking to top CIA officials” about the declassification of historical intelligence community budget figures, although “I cannot reveal the positions we took.”  But there are a limited number of possibilities here.  If the Panel took the position that historical budget figures should remain classified indefinitely, then indeed it has been marvelously effective.  But if, as seems more likely, Panel members argued that such old budget numbers should be declassified, then its efforts have been in vain.

Declassification advisory panels that include public representation can serve a constructive role in shaping and overseeing agency declassification programs.  But the CIA Historical Review Panel serves mainly as a negative example of how the utility and the influence of such panels can be compromised.

See “The CIA and Declassification: The Role of the Historical Review Panel” by Robert Jervis, Passport, April 2009.

The White House should intervene to block the impending release of certain photographs showing detainees abused by U.S. military personnel, Senators Joseph Lieberman and Lindsey Graham wrote in a letter to President Obama yesterday.  Release of the photos is expected by May 28 in response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union.

“The release of these old photographs of past behavior that has now been clearly prohibited will serve no public good, but will empower al-Qaeda propaganda operations, hurt our country’s image, and endanger our men and women in uniform,” the Senators wrote.

“We urge you in the strongest possible terms to fight the release of these old pictures of detainees in the war on terror, including appealing the decision of the Second Circuit in the ACLU lawsuit to the Supreme Court and pursuing all legal options to prevent the public disclosure of these pictures,” they wrote in the May 6 letter (pdf).

The ACLU said release of the photos was imperative.

“These photographs provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib,” said ACLU attorney Amrit Singh. “Their disclosure is critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”

The disagreement reflects conflicting assessments of which is more dangerous and objectionable– the release of the photographs or the abusive behavior that they depict.  It also turns on unresolved questions concerning the scale of prisoner abuse by U.S. personnel, and the nature of the public accounting that can or should be required.

A response to the appeal from Sen. Lieberman and Sen. Graham was not immediately forthcoming from the White House.

Questions of secrecy and disclosure are increasingly prominent in congressional interactions with the executive branch, particularly on the part of Republican members of Congress.

House Republicans wrote (pdf) to Defense Secretary Gates this week to complain about what they called “a disturbing trend of restricting budget and inspection information within the Department of Defense.”

They complained specifically about a recent policy of classifying reports of ship inspections that were previously unclassified.  “It is sometimes only through the media and public awareness… that we learn of the urgent need to address some of the shortfalls the military has…. If these reports are classified, we are unable to communicate these needs to the public,” wrote Rep. J. Randy Forbes (R-VA) and several Republican colleagues from the House Armed Services Committee on May 5.

Meanwhile, the Obama Administration has a “moral obligation” to declassify records concerning Uighur detainees who might be released into the United States from Guantanamo, insisted Rep. Frank Wolf (R-VA).

“This administration has already shown that it has no qualms about releasing selected classified documents,” Rep. Wolf said on May 4, referring to the release of Office of Legal Counsel memos on torture. “The White House cannot just pick and choose what classified information it deems worthy of releasing…. I call on the Obama administration to declassify and release all the information that they have available [about the Uighur detainees] so the American people can make a judgment.”

The U.S. Army yesterday issued a revised and updated safety policy for microbiology and biomedical laboratories.  The new policy “prescribes the technical safety requirements for the use, handling, transportation, transfer, storage, and disposal of infectious agents and toxins (IAT) rated at biosafety level 2 (BSL–2) and above.”  It applies to “all U.S. Army activities and facilities in which IAT are used.”

“Microbiological and biomedical activities are conducted by the U.S. Army in developing measures to identify, detect, diagnose, treat, and protect against IAT,” the 45 page document explains.  See “Safety Standards for Microbiological and Biomedical Laboratories” (pdf), U.S. Army Pamphlet 385-69, May 6, 2009.

The Classified Information Procedures Act (CIPA) was enacted in 1980 to provide a mechanism for handling classified information that was likely to arise in criminal trials.  The Act provided for the identification of such information, provisions for establishing its relevance and admissibility, and for introducing unclassified substitutions that could be openly discussed at trial.

The CIPA has figured prominently in numerous trials, most recently in the now-concluded case against two former officials of the American Israel Public Affairs Committee.  It also serves as a possible model and inspiration for resolving other conflicts between national security secrecy and due process in civil cases, such as those involving state secrets.

“As Congress recognized when it passed the Classified Information Procedures Act, courts have many tools at their disposal to move litigation forward even when some of the evidence cannot be disclosed,” said Sen. Russ Feingold earlier this year in endorsing the State Secrets Protection Act (S.417).

A report on the CIPA, including discussion of its shortcomings and limitations, was prepared by the Congressional Research Service in 1989.  That report has not been updated to include recent developments, and it has been withdrawn from distribution by CRS.  A copy was obtained by Secrecy News.

See “Classified Information Procedures Act (CIPA): An Overview,” March 2, 1989.

New reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf):

“Sending Mail to Members of the Armed Forces at Reduced or Free Postage: An Overview,” April 27, 2009.

“State, Foreign Operations Appropriations: A Guide to Component Accounts,” March 30, 2009.

“Foreign Operations Appropriations: General Provisions,” April 30, 2009.

“Taiwan-U.S. Relations: Developments and Policy Implications,” May 1, 2009.

“Proposals for a Congressional Commission on the Financial Crisis: A Comparative Analysis,” April 29, 2009.

“Assessment in Elementary and Secondary Education: A Primer,” April 9, 2009.

“U.S. Circuit and District Court Nominations: Senate Rejections and Committee Votes Other Than to Report Favorably, 1939-2009,” March 24, 2009.

“The 2009 Influenza A (H1N1) Outbreak: Selected Legal Issues,” May 4, 2009.

It is possible to discern potentially significant patterns in terrorist activity through an analysis of geospatial intelligence information concerning terrorist incidents, the DNI Open Source Center (OSC) says.

A recent OSC study of terrorism in Afghanistan (large PDF) illustrates the growing sophistication of geointelligence analysis tools.  By analyzing parameters such as location, timing, frequency, lethality and other such characteristics, the OSC study identified “hotspots” for terrorist activity and changes over time.  It also provided data for evaluating an OSC predictive model of terrorism in Afghanistan.

The study “revealed spatial patterns and a distribution of incidents that would be valuable to those interested in the dynamics of Afghanistan’s security.”

Some of the resulting conclusions are trivial or obvious.  Thus, OSC found that terrorist incidents are more likely to occur in populated areas of the country than in barren wastelands.  Other conclusions concerning seasonal variations and changes in target distributions may have more practical significance.

The OSC study has not been approved for public release, but a copy was obtained by Secrecy News.  See “Afghanistan — Geospatial Analysis Reveals Patterns in Terrorist Incidents 2004-2008,” Open Source Center, April 20, 2009 (in a very large 19 MB PDF file).

The study features “interactive GeoPDFs” that are embedded in the document.  In order to open them, it is necessary to activate the “Layers” function in Adobe Reader.  To do so, click on “View,” then select “Navigation Tabs” and click on “Layers.”

“Tactics in Counterinsurgency” (pdf), a new U.S. Army Field Manual, expands upon the Counterinsurgency doctrine of the best-selling December 2006 manual (pdf) on that subject.

The new manual was previously circulated in an interim, draft form and then abruptly withdrawn from public access.  (“‘Tactics in Insurgency’ Again Online,” Secrecy News, April 6, 2009).  Now it has been finalized and formally released.

“At its heart, a counterinsurgency is an armed struggle for the support of the population,” the manual declares. “This support can be achieved or lost through information engagement, strong representative government, access to goods and services, fear, or violence. This armed struggle also involves eliminating insurgents who threaten the safety and security of the population.”

“However, military units alone cannot defeat an insurgency. Most of the work involves discovering and solving the population’s underlying issues, that is, the root causes of their dissatisfaction with the current arrangement of political power. Dealing with diverse issues such as land reform, unemployment, oppressive leadership, or ethical tensions places a premium on tactical leaders who can not only close with the enemy, but also negotiate agreements, operate with nonmilitary agencies and other nations, restore basic services, speak the native (a foreign) language, orchestrate political deals, and get ‘the word’ on the street.”

See “Tactics in Counterinsurgency,” Field Manual 3-24.2, April 21, 2009 (300 pages, 10 MB PDF).

Algeria is one of the Middle Eastern North African nations that has the scientific and technological capacity to develop nuclear weapons if legal, political and other barriers to nuclear weapons proliferation decline and lose their efficacy.  “Algeria has the expertise and the means to produce nuclear weapons” should it decide to do so, said independent researcher Mark Gorwitz, and he added that it might be able to accomplish the task in just a couple of years.

Mr. Gorwitz prepared an updated open source bibliography of Algerian nuclear science and engineering publications, which is posted here (pdf).

To the shock and bewilderment of those who knew him, Christopher Bolkcom, a distinguished analyst at the Congressional Research Service, died suddenly May 1 at age 46.

Twenty years ago, Christopher was a research assistant working for John Pike here at FAS.  He quickly went on to become a national expert on military aviation and other aspects of defense policy.  When looking over a bibliography of studies prepared for the secretive Office of Net Assessment, I was impressed to see that Christopher had co-authored several papers for the influential Pentagon group more than fifteen years ago. More recently, as a CRS analyst, he wrote dozens of authoritative reports on military aircraft and all kinds of related topics.  He was much in demand.  As noted by the Project on Government Oversight, he testified at a hearing of the Senate Armed Services Committee just last Thursday, the day before he died.

But Christopher’s testimony (pdf) and his publications on “Tactical Air Modernization” (pdf) and the like don’t begin to capture the depth and vitality of the man.  He knew enough discord in his own life to make him thoughtful and forgiving towards the weaknesses of others.  (Well, sometimes.)  He had a mischievous sense of humor and he liked to live on the edge.  He pursued the martial arts, he rode a motorcycle to work, and he listed me as a reference for his security clearance renewal.

Above all, Christopher was a loving father to his two young children, Jessica and Max.  He  was also a generous and devoted friend.  His family has invited those who remember him to make a donation in his name to the Falls Church Presbyterian Church Youth Program, 225 E. Broad Street, Falls Church, Virginia 22046.