Updated below.

The Central Intelligence Agency did provide a copy of intelligence files relating to the Bay of Pigs to President Nixon in response to his request, an official of the National Archives and Records Administration said yesterday.  He said that the statement to the contrary in Secrecy News on January 5, citing the new book “Family of Secrets,” was in error.

“The CIA did not refuse the Nixon administration’s request for records on the Bay of Pigs and other topics,” John Powers of the National Archives said.  What happened, rather, is that “[Director of Central Intelligence Richard M.] Helms insisted that if the President wanted these records, he would only give them to the President himself.”

“There is a fascinating Oval Office taped conversation of this meeting in October 1971 that is publicly available.  You can hear Helms putting the papers down on Nixon’s desk,” Mr. Powers said.

He identified the conversation as tape number 587-7 dated October 8, 1971.  “Helms enters during [Ehrlichman’s] briefing and they quickly change the topic, then get down to the issue of the papers.”

Mr. Powers added that the CIA papers provided by Mr. Helms to President Nixon are contained in Boxes 36 and 37 of the John D. Ehrlichman files at the Nixon Presidential Library.

Mr. Powers said that some of the material may have been declassified and released since he departed from the Nixon Project nearly two years ago.  “But my recollection is that most of the two [Ehrlichman] boxes were still classified. They are awaiting a researcher to file a Mandatory Declassification Review request.”

Update: Audio tape 587-7 from October 8, 1971 can be downloaded here, courtesy of Prof. Luke A. Nichter of Tarleton State University-Central Texas and Nixontapes.org. An outline of the taped conversation is posted here (pdf).

The Congressional Research Service has issued — but has not publicly released — a new report on “Terrorist Attacks in Mumbai, India, and Implications for U.S. Interests” (pdf), December 19, 2008.

The history of official secrets legislation in the United Kingdom is set forth in a new memorandum (pdf) from the UK House of Commons Library, which also provides background on notable cases involving unauthorized disclosures of classified government information (flagged by Docuticker.com).  See “Official Secrecy,” December 30, 2008.

The challenges and benefits of improving intelligence sensor data integration are discussed in a new joint report from the Defense Science Board and the Intelligence Science Board.  See “Integrating Sensor-Collected Intelligence” (pdf), November 2008.

A 1957 account (pdf) of centrifuge research in the Soviet Union by Austrian physicist Gernot Zippe, translated (and partially redacted) by the Central Intelligence Agency, is now available online. See “The Problem of Uranium Isotope Separation by Means of Ultracentrifuge in the USSR,” 8 October 1957.

The impending transfer of Bush Administration records to the custody of the National Archives and Records Administration (NARA) will challenge the capacity of the Archives to absorb them because of their enormous volume and the diverse formats of various electronic records.

But there is also a fundamental question concerning the integrity of the transfer process, which relies on the good faith of executive branch officials and which can be subverted by design or neglect.

“There really is no practical way we know of for NARA to be assured that every document in paper or electronic form has been received from an agency,” Dr. Allen Weinstein, the former Archivist of the United States, told Congress last year (pdf, at p. 136).  “Nor can NARA police the records management practices of over 300 federal agencies to ensure that permanent records are not purposefully or unintentionally withheld from the National Archives. Federal agencies are expected to fulfill their statutory responsibilities.”

“NARA must rely on the agency records officers, other agency officials, and a vigilant public and press to inform us of any such failure to act,” he said.

As for presidential records in particular, Dr. Weinstein said “the incumbent President is solely responsible for ensuring that … components of the Executive Office of the President adhere to the records requirements set out in [the Presidential Records Act].”  Although the President is supposed to obtain the written views of the Archivist prior to any proposed destruction of non-permanent records, “the final disposal authority rests with the incumbent president… regardless of the Archivist’s views.”

See “National Archives Oversight: Protecting Our Nation’s History for Future Generations,” hearing before the Senate Committee on Homeland Security and Governmental Affairs, May 14, 2008 (esp. pp. 131-136).

An estimated 25,000 boxes of White House documents are to be transferred to the Archives, R. Jeffrey Smith of the Washington Post reported (“Bush E-Mails May Be Secret a Bit Longer,” December 21).  Electronic records of the Bush White House are believed to total 100 terabytes of information, or about 50 times the volume of electronic records left behind by the Clinton White House in 2001, Robert Pear and Scott Shane reported (“Bush Data Threatens to Overload Archives,” New York Times, December 27, 2008).

Volume aside, the White House electronic records were often generated in non-standard formats using proprietary software that somehow must be accommodated by NARA.

“The biggest risk facing NARA that could disrupt a successful transition is our ability to ingest the electronic records of the White House,” Dr. Weinstein said.  A plan to address this risk was approved November 7, the New York Times reported.

Vice President Richard B. Cheney recently argued (pdf, at p. 24) that “The Vice President alone may determine what constitutes vice presidential records or personal records, how his records will be created, maintained, managed and disposed, and are all actions that are committed to his discretion by law” (as reported by Pamela Hess of Associated Press on December 18).

That view was disputed by Citizens for Responsibility and Ethics in Washington and historians who filed a lawsuit seeking to ensure compliance with the Presidential Records Act (PRA).  “[The Vice President’s] demand for unchecked discretion not only contravenes binding Circuit precedent, but … is repugnant to our democratic ideals and the rule of law,” they argued in a December 22 pleading.

What does it say about the American political system that someone like George W. Bush was able to ascend to the highest office in the land, despite his meager and ambiguous record?

In pursuit of an answer to that question, investigative journalist Russ Baker has constructed a full-fledged counterhistory of the last half-century as it pertains to the Bush family.  He writes in his new book “Family of Secrets” that he discovered a “dimension of power” that conditions and distorts the American political process.  It lies at the intersection of corporate oil interests, finance and intelligence, and the Bushes have been at the heart of it.

With a brief apology to the reader, Baker revisits the JFK assassination (and George H.W. Bush’s peculiar response to it) and he embraces a radical reinterpretation of Watergate in which President Nixon is the target and victim of the conspiracy rather than its instigator.

“Family of Secrets” postulates a network of politically and financially powerful individuals working behind the scenes to advance their interests at the expense of the nation.  Because the book consciously challenges the generally accepted record of several decades of public events, it assumes a burden of proof that it cannot fully discharge.  It relies heavily on insinuation based on isolated facts, it emphasizes “relationships” as a primary manifestation of political allegiance and influence, and in the end it does not clearly state a significant hypothesis that could be corroborated or refuted by further investigation.

But Baker is an energetic reporter and a good storyteller.  He has conducted prodigious research and interviewed both familiar and unfamiliar sources to produce riveting (if occasionally appalling) revisions of the JFK assassination and Watergate stories.  Even readers who find his methodology unsound may profit from the fruits of his research.  It is astonishing to learn, for example, that ousted CIA Director Allen Dulles was a contributor to the 1963 Encyclopedia Britannica yearbook entry on the Bay of Pigs.  And I had forgotten, or never knew, that the Central Intelligence Agency refused a direct request from President Nixon to provide documents concerning the Bay of Pigs and other topics.

Baker makes a cogent case for a “deep” interpretation of the JFK assassination, Watergate and other events.  He stresses the fact that Kennedy and Nixon each had real personal and political enemies who benefitted when these presidents were removed from office.  In each case, he says, the Bush family was among the beneficiaries.

Because of its undisciplined use of historical data and the absence of rebuttal (the Bush family did not agree to be interviewed), “Family of Secrets” should not be the only book of recent history that anyone reads.  But at its best, it provides a reader with an arsenal of new questions with which to interrogate and rethink the historical record.

A federal appeals court in Oregon will hold a hearing next month on a government appeal of a 2007 judicial ruling that said the Foreign Intelligence Surveillance Act (FISA) is unconstitutional.

The FISA is a statute that regulates domestic intelligence, and generally requires judicial authorization for intelligence search and surveillance within the United States.  Critics of Bush Administration electronic surveillance activities such as the “Terrorist Surveillance Program” have argued that they unlawfully circumvented the provisions of the FISA.

But the FISA itself, as modified by the USA PATRIOT Act, is unconstitutional, a federal court ruled on September 26, 2007 (pdf).

That ruling came in response to a challenge by Brandon Mayfield, who was erroneously arrested in connection with the Madrid bombings in 2004 based on a false fingerprint match and subsequent surveillance under the Foreign Intelligence Surveillance Act.  The FBI later apologized for his mistaken arrest and provided a financial settlement.  But Mayfield continued to challenge the legal foundation of the arrest.

He successfully argued that FISA, as modified by the PATRIOT Act, violates the Fourth Amendment because it eroded the requirement of probable cause as a pre-condition for obtaining a search warrant, and because it permitted warrants to be issued under FISA without a showing that the “primary purpose” of the search is to obtain foreign intelligence information (as summarized by Judge Vaughn Walker in a July 2008 opinion [pdf], at pp. 39-41).

Judge Ann Aiken of the District Court of Oregon agreed with this assessment in her September 2007 order and declared FISA unconstitutional.

The government promptly appealed that ruling, but the case has been dormant since May 2008.  A hearing on the appeal has now been scheduled for February 5, 2009 at the Ninth Circuit Court of Appeals in Portland, Oregon.

It is not known whether the incoming Obama Administration will reconsider the pending appeal of the lower court ruling.

An improved understanding of the dynamics of the conflict between Hamas and Israel — one that goes beyond “they started it” — is probably a prerequisite to any enduring reduction of the violence and the terrible human suffering that the conflict now entails.

A detailed new assessment (pdf) by an analyst at the U.S. Army Strategic Studies Institute traces the evolution of the Israel-Hamas conflict prior to the end of the recent ceasefire and identifies steps that both sides would likely have to take in order to arrive at a long-term truce.

“Neither Israel nor the Palestinians have a unified position towards the other,” writes Sherifa Zuhur, professor of Islamic and regional studies at the Strategic Studies Institute. “Each group is socialized in particular ways, through the educational system, employment experiences; and for Israelis, in the military, in political parties, families, and bureaucracies.”

Based on her own interviews and analyses, the author attempts to elucidate the social, cultural and political factors at work.

A struggle to control the narrative of the conflict is itself part of the conflict and Prof. Zuhur’s account may not be fully embraced by anyone.  On the whole, her analysis seems more sympathetic to Hamas, whose objective, she says rather incongruously, “is not the destruction of Israel” but only the “liberation of Palestine.”

But even those who cannot accept her terms or the way she frames some of the issues may find food for thought in her 100-page paper (which does not represent an official U.S. Army position).

She concludes optimistically that “each side is still capable of revising its desired endstate and of the necessary concessions to establish and preserve a long-term truce, or even a longer-term peace.”

See “Hamas and Israel: Conflicting Strategies of Group-Based Politics” by Sherifa Zuhur, U.S. Army Strategic Studies Institute, December 2008.

Many of the roots of today’s conflicts in the Middle East can be discerned in the crises of the past, some of which are newly documented in the latest volume of the official Foreign Relations of the United States (FRUS) series.

The new FRUS volume includes a section on the Nixon Administration’s response to the intense fighting between the Jordanian military and the Palestine Liberation Organization in September 1970, which threatened to topple the monarchy of King Hussein.

Another section treats “the Nixon administration’s efforts to replace the political and military structure left by the former British Empire with a newer structure that met America’s … needs,” as well as “the Nixon administration’s efforts to articulate a grand strategy toward the Middle East region through arms sales and military modernization for its regional allies.”

See Foreign Relations of the United States, 1969-1976, Volume XXIV, Middle East Region and Arabian Peninsula, 1969-1972; Jordan, September 1970 (published December 23, 2008).

The new FRUS volume was completed earlier this year, prior to the unexpected departure of Dr. Edward C. Keefer from the State Department Office of the Historian.  He had served for years as General Editor of the series, but left abruptly in what was perceived as a sign of mounting turmoil in the Historian’s Office.

Widespread concerns about continuing upheaval in the Historian’s Office were addressed by Secretary of State Condoleezza Rice in a meeting with historians on December 22.

Secretary Rice announced that she had established “an outside Review Team to provide recommendations about how to ensure the FRUS series remains the gold standard for diplomatic history scholarship.”

Aside from its importance to diplomatic historians and other specialists, the FRUS series embodies the vital principle that all U.S. foreign relations activities, no matter how highly classified they may initially be, will eventually be brought to light and published for the world to see.  Thanks to a remarkable 1991 statute, it is actually against the law for the FRUS series to be anything other than “thorough, accurate, and reliable.”

The importance and the hazards of government secrecy are now widely understood.  But the principles and practices of secrecy policy as it has developed over the years remain obscure to many.  A new anthology published this week aims to present “the best that has been thought and written” on the subject.

“Government Secrecy: Classic and Contemporary Readings” presents an impressive cross-section of views, from many competing and complementary perspectives.  They include the theoretical (Georg Simmel), the sociological (Max Weber, Edward Shils), the adversarial (Howard Morland), and a lot more (from William Colby, Morton Halperin, Harold Relyea, Howard Zinn, James X. Dempsey, Thomas Blanton, William Weaver, Joseph Stiglitz, Lee Strickland, Herbert Foerstel, myself and others).

It is the distillation of an entire library’s worth of material that should be of interest to students of government and political science, as well as concerned citizens who find themselves confronting official secrecy.

“Government Secrecy” was edited Dr. Susan L. Maret of San Jose State University and Dr. Jan Goldman of the National Defense Intelligence College.

Legal opinions issued by the Justice Department Office of Legal Counsel that interpret the law for the executive branch on questions of surveillance, detention and other disputed national security policies are among the Bush Administration records that are most urgently sought by members of Congress and others, and are often among the records that are most tightly withheld.

More than four years after it was first requested by Congress, the Justice Department last week finally delivered a copy of a 2001 opinion issued by the Office of Legal Counsel (OLC) on the “Legality of the Use of Military Commissions to Try Terrorists” (pdf) to the Senate Judiciary Committee.

Senator Patrick Leahy, chairman of the Committee, said the Justice Department had also promised to provide his Committee with six other OLC opinions related to terrorism, detention and interrogation policy, but then declined to do so, instead offering an opportunity for Committee staff to review the documents at the Justice Department.  He criticized the Department for “going back on its word.”

Senator Leahy had originally requested the 2001 OLC memorandum in a June 15, 2004 letter to then-White House counsel Alberto Gonzales.

The newly disclosed memorandum, which was always unclassified, is believed to have been “part of the deliberative process of the Executive Branch in connection with the establishment of military commissions,” according to John P. Elwood of the OLC.  He noted, in response (pdf) to a question from Sen. Russ Feingold, that “The conclusions of the memorandum have been affected by subsequent case law, most particularly the Supreme Court’s decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006).”

Attorney General Michael Mukasey said on December 3 that certain OLC opinions may be withheld from the Obama transition team until the new Administration takes office on January 20, either because the documents are privileged or because of their high classification level, the Washington Post reported on December 4.

“The Bush administration talks about working together, but they care more about continuing their secretive practices,” Senator Leahy said.  “Just as there is no justification for denying the incoming administration legal opinions that were the basis for Executive Branch policy, there is no justification for denying them to the Senate Judiciary Committee.”

“We will be working hard to have the Justice Department leadership team in place as soon as possible so we can begin to peel back the layers of secrecy that has defined this administration,” he said.

Noteworthy publications from the Congressional Research Service that have not been made readily available online include the following (all pdf).

“Executive Branch Reorganization and Management Initiatives: A Brief Overview,” updated November 26, 2008.

“Islamist Militancy in the Pakistan-Afghanistan Border Region and U.S. Policy,” November 21, 2008 (new format, with map).

“Section 1206 of the National Defense Authorization Act for FY2006: A Fact Sheet on Department of Defense Authority to Train and Equip Foreign Military Forces,” updated November 25, 2008.

“Department of Defense ‘Section 1207’ Security and Stabilization Assistance: A Fact Sheet,” updated November 25, 2008.

“Water Infrastructure Needs and Investment: Review and Analysis of Key Issues,” updated November 24, 2008.

“Whales and Sonar: Environmental Exemptions for the Navy’s Mid-Frequency Active Sonar Training Program,” updated November 14, 2008.

“Afro-Latinos in Latin America and Considerations for U.S. Policy,” updated November 21, 2008.

“Party Leaders in the United States Congress, 1789-2009,” updated November 25, 2008.

“Containing Financial Crisis,” updated November 24, 2008.

“The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme Court Progeny,” updated November 18, 2008.

“Presidential Appointee Positions Requiring Senate Confirmation and Committees Handling Nominations,” updated March 18, 2008.

“Recess Appointments Made by President George W. Bush, January 20, 2001-October 31, 2008,” updated November 3, 2008.

“Nominations to Article III Lower Courts by President George W. Bush During the 110th Congress,” updated October 20, 2008.

“The Motion to Recommit in the House of Representatives: Effects, Recent Trends, and Options for Change,” November 20, 2008.

“Organic Agriculture in the United States: Program and Policy Issues,” updated November 25, 2008.

A proposed new Department of Energy regulation would eliminate the so-called “public interest” balancing test that encourages DOE officials to release information under the Freedom of Information Act even when it is legally exempt from disclosure if doing so would serve the public interest.

“This proposed rule would remove the so-called ‘extra balancing test’… which states: ‘To the extent permitted by other laws, the DOE will make records available which it is authorized to withhold under [the FOIA] whenever it determines that such disclosure is in the public interest’,” according to the December 9 proposal published in the Federal Register.

“This additional [public interest balancing] test requires DOE to make available records that could be withheld under the FOIA exemptions, if DOE determines that disclosure would be in the public interest.  DOE is proposing to remove the extra balancing test, because it goes beyond the requirements of the FOIA, and imposes unnecessary administrative requirements on DOE.”

It is true, by definition, that the balancing test in the existing DOE regulation “goes beyond the requirements of the FOIA,” because it encourages disclosure of records the release of which is not legally required.

But in an apparent non-sequitur, DOE also said that “the extra balancing test does not alter the outcome of the decision to withhold information, as DOE already incorporates Department of Justice guidance in applying exemptions when determining whether or not to make a discretionary release of information.”

The difficulty with that statement is that current Department of Justice guidance on discretionary release does not require explicit consideration of the public interest in disclosure of exempt information.  To the contrary, it promotes withholding of exempt information and promises to defend agencies whenever they legally withhold such information.

In effect, the existing DOE regulation incorporates the 1993 FOIA policy enunciated by then-Attorney General Janet Reno (and long since abandoned by other agencies) which encouraged discretionary disclosures unless there was a “foreseeable harm” to a legitimate government interest.  And the proposed new DOE revision reflects the 2001 FOIA policy of Attorney General John Ashcroft, who discouraged discretionary releases (though he did not prohibit them) and urged withholding of records whenever there was a “sound legal basis” for doing so.  As noted in a November 19, 2001 Defense Department memo (pdf), under the Ashcroft FOIA policy “Discretionary disclosures are no longer encouraged.”

It is interesting to observe that with the current DOE FOIA regulation in effect there has been a striking difference in FOIA implementation between the Department of Energy and other agencies.

Earlier this year, for example, President Bush ordered executive branch agencies to provide comments on the recommendations of the Public Interest Declassification Board for improving declassification practices.  Requests under the Freedom of Information Act for copies of these comments were consistently rejected by the Office of the Director of National Intelligence, the Department of Defense, the Department of Homeland Security and other agencies.  These agencies correctly noted that the comments were inter-agency deliberative materials that were exempt from disclosure under FOIA exemption (b)(5).

But one agency released its comments in full, despite the availability of an exemption:  the Department of Energy. (See “Energy Dept is ‘Committed’ to Improving Declassification,” Secrecy News, June 5).  In other words, it appears that the public interest balancing test and the approach to FOIA that it represents do alter the outcome of the disclosure decision process at DOE.

In comments on the proposed regulation submitted by the Federation of American Scientists, we argued that “there is a widespread and well-founded expectation that the incoming Obama Administration will rescind the Ashcroft FOIA policy and define a more forthcoming disclosure policy.  In light of that probable scenario, I would urge DOE to cancel its proposed revision of [the public interest balancing test], or else to suspend action on it for six months while the new Administration prepares new government-wide FOIA guidance.”

The elite JASON defense science advisory panel dismissed claims that high frequency gravitational waves (HFGW) could pose any kind of national security threat.

In a study (pdf) prepared for the Office of the Director of National Intelligence, the JASONs concluded that “No foreign threat in HFGW is credible, including: communication by means of HFGW; object detection or imaging (by HFGW radar or tomography); vehicle propulsion by HFGW; or any other practical use of HFGW.”

Gravitational waves were predicted by Einstein’s general theory of relativity and their existence has been indirectly confirmed by experiment.  But up to now they have never been directly measured.

“Unfortunately, relativity and gravitation theory have, over the last century, been the subject of a great deal of pseudo-science, in addition to real science. Therefore, in evaluating ambitious claims about gravitational applications, one must consider the possibility that the claims are misguided and wrong,” the JASONs advised.  “There is no substitute for seeking expert scientific and technical opinion in such matters.”

A copy of the new JASON report was obtained by Secrecy News.  See “High Frequency Gravitational Waves,” October 2008.

Update: Noah Shachtman has more here.