SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 24
March 17, 2005THE AGE OF MISSING INFORMATION
- THE AGE OF MISSING INFORMATION
- SENSITIVE BUT UNCLASSIFIED: A POLICY ANALYSIS
- WAXMAN ON SENSITIVE BUT UNCLASSIFIED
- RECALLING THE THOMAS BUTLER AFFAIR
- MILITARY INTELLIGENCE PROFESSIONAL BULLETIN
One of the most striking features of the government information landscape today is the continuing withdrawal of unclassified information from the public domain. More of a reflex than a policy, it has left gaping holes in the public record of government activity.
The scope of the problem is surveyed in an article I wrote in Slate today. See "The Age of Missing Information":http://slate.msn.com/id/2114963/
SENSITIVE BUT UNCLASSIFIED: A POLICY ANALYSIS
The problem posed by unclassified information that is deemed a potential threat to security is the subject of an extended new policy analysis from the University of Maryland.
Government controls on so-called sensitive but unclassified information have multiplied since September 11, 2001, in often arbitrary and conflicting ways. "Sometimes the potential danger is pretty clear and other times it's a difficult call," said Jacques Gansler, a former Under Secretary of Defense and co-author with William Lucyshyn of the new Maryland study. "Advanced biotechnology research is an area of particular concern where we probably need to increase oversight. In other cases, precautions can seem excessive or capricious." The study provides a useful analysis of the problem, which has numerous complicating features, such as the fact that much of the information in question is generated outside of government control or even internationally. Written with evident good will, the study will nevertheless leave many readers uneasy with its recommendation that the President establish a new class of restricted materials to be termed CUSI -- Controlled Unclassified Security Information. Some of the problems with the authors' proposal, in Secrecy News' view, include the following:The authors do deserve credit for tackling a difficult subject, and illuminating it, and perhaps initiating a conversation that has been long overdue. See "The Unintended Audience: Balancing Openness and Secrecy" by Jacques S. Gansler and William Lucyshyn, Center for Public Policy and Private Enterprise, University of Maryland, dated September 2004 but released last week and posted here:
- The current Administration does not share the "bias in favor of openness" that the authors insist is needed to ensure the credibility and feasibility of any new system of control of unclassified information. (See "The Age of Missing Information" above.) Asking this Administration to impose new controls on unclassified information is inviting an addict to indulge his habit.
- The authors assign a lead role to the Department of Homeland Security in fleshing out and implementing their proposal. But when it comes to security policy, DHS has over-reached (e.g. by requiring non-disclosure agreements for unclassified information) and under-performed (e.g. by failing to produce procedures for protecting sensitive homeland security information more than two years after they were mandated to do so). It is doubtful that it is up to the task.
- Most fundamentally, the authors assume that the consequences of withholding or releasing particular types of unclassified information are knowable in advance, or can be established by consensus. In many cases, that is unlikely to be true.
- The authors commendably prescribe an appeals process in order to correct any misapplication of the new controls, but such processes do not function reliably today. Thus, for example, when the CIA says that the 1997 intelligence budget can be declassified but the 1957 or 1967 budget cannot be, all of the available appeal mechanisms -- the ISCAP, a federal judge, congressional intelligence committees (by their acquiescence) -- say that the CIA is correct. But it isn't.
- The authors occasionally lapse into prejudice, as when they glibly state that "seemingly benign information can be used easily to endanger the national security" (p.42). But the national security is not easily endangered. Anyway, this presumes what needs to be demonstrated. It is the characteristic defect of much security policy analysis that in the absence of validated threat data, analysts assume a ubiquitous and hyper-competent adversary. That is a poor foundation for public policy.
http://www.cpppe.umd.edu/Bookstore/Documents/UnintendedAudience_3.05.pdf
WAXMAN ON SENSITIVE BUT UNCLASSIFIED
Burgeoning controls on "sensitive" information "are being invoked improperly to block the release of information that is not classified," wrote Rep. Henry Waxman (D-CA) in a March 1 letter reporting the findings of a staff study.
"Some of the examples we reviewed involve absurd overreactions to vague security concerns. In other examples, the Administration appears to have invoked the [sensitive but unclassified] designations to cover up potentially embarrassing facts, rather than to protect legitimate security interests." Rep. Waxman identifies several of those examples in his 12 page letter, a copy of which is posted here (500 KB PDF file):http://www.fas.org/sgp/congress/2005/waxman030105.pdf
RECALLING THE THOMAS BUTLER AFFAIR
Thomas C. Butler is the distinguished expert on infectious diseases who was aggressively prosecuted by the government and convicted for improperly shipping plague samples and for contract violations. Credited with helping to save literally millions of lives through his medical research, Butler is now serving a two year jail term.
The Butler case should be studied in government sponsored public workshops in order to "illustrate how rules and norms have been changed," Gansler and Lucyshyn suggest in their new University of Maryland study (p. 42). But many scientists and other observers reject the idea that the Butler case constitutes a new norm. Rather, they say, it is a miscarriage of justice that should be repudiated. In an open letter, Butler's supporters argue that "Incarcerating Dr. Butler has and will continue to adversely impact the national security." "Knowing that even a technical violation or disputing a university's claim to funds can result in criminal charges, [scientists] will decline to work on research critical to national security, such as plague or anthrax." "One author of this letter has already destroyed all plague samples held in his lab for exactly this reason." The letter calls for new efforts to free Butler on appeal. See a copy here:http://www.fas.org/butler/letter0305.pdf
MILITARY INTELLIGENCE PROFESSIONAL BULLETIN
When the U.S. Army started moving its online content behind a password-protected portal called Army Knowledge Online in 2001, untold thousands of Army records ceased to be publicly available online.
One of those was a quarterly journal called Military Intelligence Professional Bulletin. A July 2004 Freedom of Information Act request to the Army for electronic copies of the unclassified journal was denied (although the Army noted that hardcopy subscriptions may be purchased through the Government Printing Office). But in response to an appeal, the Army this month conceded that it is legally obliged to provide the requested publication in softcopy format, and it did so. Back issues of Military Intelligence Professional Bulletin, a small token of the countless unclassified Army publications that have been withdrawn from online public access, are now once again available here:http://www.fas.org/irp/agency/army/mipb/index.html
******************************Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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