SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 130
December 21, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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NATIONAL RECONNAISSANCE OFFICE YIELDS TO FAS LAWSUIT

A government attorney indicated yesterday that the National Reconnaissance Office will cease to oppose a Freedom of Information Act request from the Federation of American Scientists for unclassified NRO budget justification documents, and that it will provide the requested records as early as next week.

Last July, a federal court ruled in favor of FAS and told the NRO that the budget documents are not "operational files" that would be exempt from processing under the FOIA. In September, the NRO filed a notice of appeal seeking to overturn the court order.

But this week, after FAS filed a motion to compel the NRO to comply with the order, the agency said it would withdraw its appeal and provide the document.

The case will have a favorable ripple effect throughout the intelligence community, since other intelligence organizations such as the National Geospatial-Intelligence Agency also claim that their budget records are "operational files" that are exempt from FOIA processing. Now that the court's order on this issue stands unchallenged, such claims will be nullified.

One Secrecy News reader wrote to express his concern that we were using the law to force NRO to disclose records that should not be disclosed in the interests of national security. But that is not the case. FOIA exemptions for properly classified national security information and for intelligence sources and methods remain in place and in effect.

But NRO has now been forced to disclose all non-exempt budget information, as the law requires.

Selected case files from Aftergood v. National Reconnaissance Office may be found here:

The anticipated receipt of NRO budget material will be noted in Secrecy News when it occurs.

AUTOMATIC DECLASSIFICATION DEADLINE LOOMS

In his March 2003 executive order 13292, President Bush affirmed that on December 31, 2006, with certain limitations, "all classified records that (1) are more than 25 years old and (2) have been determined to have permanent historical value under title 44, United States Code, shall be automatically declassified whether or not the records have been reviewed."

That December 31 deadline is now almost here, the New York Times noted in a front page story today.

See "U.S. to Declassify Secrets at Age 25" by Scott Shane, New York Times, December 21:

The automatic declassification of 25 year old records, which will continue to apply to new records each year as they become 25 years old, is a genuine innovation in classification policy. It is a credit both to the Clinton Administration, which first adopted the proposal, and the Bush Administration, which did not abandon it.

In practice, however, the impact of the policy may not be as dramatic as one might imagine, for several reasons.

First, many agencies have sought and received exemptions for one of nine categories of information (war plans, intelligence sources, WMD information, etc.) that need not be declassified. Selected agency declassification plans may be found here:

Second, records that involve the interests ("equities") of more than one agency are not subject to this month's deadline. Rather, they are to be declassified by December 31, 2009.

Third, declassification does not imply immediate disclosure. Some declassified records may still need to be reviewed for privacy data and other exempt information.

Finally, the processing of hundreds of millions or billions of declassified pages to make them publicly accessible is a logistical challenge that may exceed the capability of the National Archives, which has faced increasing budgetary pressures.

Unless Congress chooses to provide supplemental resources for the Archives, many declassified records will remain inaccessible.

In a December 21 news release, the Office of Director of National Intelligence announced the declassification of "four decades of U.S. intelligence on Yugoslavia" including 34 recently declassified National Intelligence Estimates.

The records are available through the National Intelligence Council here:

SECURITY CLEARANCES FOR "MERITORIOUS" FORMER CRIMINALS

In a well-intentioned but clumsy legislative maneuver known as the Smith Amendment, Congress in 2000 generally prohibited the Department of Defense from granting security clearances to individuals who had been convicted of a crime and sentenced to prison for more than a year.

"Because of the severity of the Amendment, many long-time, faithful employees of the government lost their clearances and their jobs for minor offenses occurring long ago," notes attorney Sheldon Cohen in a new analysis of the Smith Amendment.

The measure was modified somewhat in 2004 and both the original and the modified version allowed exceptions for "meritorious" cases. But both failed to articulate what constitutes a "meritorious" case that would justify an exception to the rule.

"There is nothing in the legislative history to indicate what standard Congress intended to be applied for granting waivers," observed Cohen, a specialist in security clearance policy.

Cohen describes the evolution of the Smith Amendment, its ambiguities and the problems it has created. He concludes with a proposed set of principles for evaluating whether a particular individual qualifies for a meritorious exception to the Smith Amendment rule.

See "Smith Amendment Update" by Sheldon I. Cohen, December 2006:

Former national security advisor Sandy Berger is prohibited from handling classified material for at least three years as a result of his illicit removal of records from the National Archives in 2003, to which he pleaded guilty last year.

Some startling new details of that case were presented in a declassified National Archives Inspector General report, obtained under the Freedom of Information Act by the Associated Press.

See "How an Ex-Aide to President Clinton Stashed Classified Documents" by Josh Gerstein, New York Sun, December 21:

The National Security Council (NSC) Policy Coordinating Committee (PCC) on Records Access and Information Security Policy this week approved a "program of instruction" to help promote reciprocity among agencies in granting security clearances. See:

KEY FOREIGN AFFAIRS ISSUES FOR THE 110TH CONGRESS (CRS)

A new report from the Congressional Research Service presents a comprehensive 80-page survey of foreign policy and national security issues that will face the next Congress.

See "Foreign Affairs, Defense and Trade: Key Issues for the 110th Congress," December 20, 2006:

Also newish from CRS is "Bioterrorism Countermeasure Development: Issues in Patents and Homeland Security," updated November 27, 2006:

COVERT ACTION AGAINST THE SOVIET UNION, 1969-1970 (FRUS)

The Nixon Administration gave high priority to covert action against the Soviet Union and its interests around the world, according to newly published declassified records.

"With respect to black operations, the President enjoined me to hit the Soviets, and hit them hard, any place we can in the world," wrote CIA director Richard Helms in a March 25, 1970 memorandum for the record.

"He said to 'just go ahead,' to keep Henry Kissinger informed, and to be as imaginative as we could. He was as emphatic on this as I have ever heard him on anything," Mr. Helms wrote.

The Helms memorandum and other records on U.S. covert action against the Soviet Union were published this week in a new volume of Foreign Relations of the United States (FRUS).

"The total cost of this program is $766,000," one document noted, in a departure from previous CIA practice of redacting almost all intelligence budget expenditures.

The newly published documents on covert action against the Soviet Union are collected and posted here:

The full text of the source volume of Foreign Relations of the United States, 1969-1976, volume XII (Soviet Union, January 1969-October 1970), may be found here:

A companion volume FRUS volume, volume XIV (Soviet Union, October 1971-May 1972), also newly published, is here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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