[Intelforum] Secrecy News -- 10/03/05 (IF)

Mon Oct 3 12:05:45 EDT 2005

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 94
October 3, 2005

**	CONGRESS PUSHES BACK ON "SENSITIVE SECURITY INFORMATION"
**	THE FRANKLIN/AIPAC CASE AND THE PRESS
**	SSCI MARKUP OF 2006 INTEL AUTHORIZATION ACT
**	COURT ORDERS RELEASE OF ABU GHRAIB IMAGES
**	SELECTED CRS REPORTS

CONGRESS PUSHES BACK ON "SENSITIVE SECURITY INFORMATION"

In a rare defense of public access to government information, Congress
has instructed the Department of Homeland Security to clarify and
tighten its procedures for generating so-called "sensitive security
information" (SSI), to reduce subjective factors in marking documents
as SSI, and to provide Congress with the titles of all documents that
are so designated.

SSI refers generally to transportation security information that is
exempt by law from public disclosure.  It includes airport security
plans, vulnerability assessments, and related airline security data,
but also undefined "other" information that may be considered too
sensitive for public release.

"Because of insufficient management controls, information that should
be in the public domain may be unnecessarily withheld from public
scrutiny," members of Congress wrote in the new conference report on
the 2006 Homeland Security Appropriations Act.

The congressional conferees directed DHS to "promulgate guidance that
includes common but extensive examples of SSI" so as to "eliminate
judgment ... in the application of the SSI marking."

See the report language here:

     http://www.fas.org/sgp/congress/2005/dhs-ssi.html

SSI has been a source of controversy because it has been invoked in
seemingly arbitrary ways to deflect public requests for information.

For examples of some SSI disputes and for further background, see my
article "The Secrets of Flight" in Slate, November 18, 2004:

     http://slate.msn.com/id/2109922/

SSI is only one of several dozen types of controls on unclassified
information, and not the most common.  Because they are mostly
informal and discretionary, such controls are also more susceptible to
abuse than the comparatively rigorous classification system.

Lately, the Centers for Disease Control has been criticized for
withholding data needed for flu vaccine production and for adopting
aggressive controls on "sensitive but unclassified" information.

See "CDC locks up flu data" by Rebecca Carr, Cox News, in the Atlanta
Journal-Constitution, October 3:

    http://www.ajc.com/news/content/news/stories/1005/03natcdc.html

THE FRANKLIN/AIPAC CASE AND THE PRESS

The recent indictment of two former employees of the American Israel
Public Affairs Committee (AIPAC) for mishandling classified
information is an abrupt departure from established practice because
it treats members of the public as if they were cleared government
employees who are obliged to protect classified secrets.

For the same reason, it poses an extraordinary challenge to the ability
of the press to report on national security affairs.

"Steve Rosen and Keith Weissman repeatedly sought and received
sensitive information, both classified and unclassified, and then
passed it on to others in order to advance their policy agenda and
professional standing," said U.S. attorney Paul McNulty at a press
conference announcing their indictment (along with former defense
official Larry Franklin, who will reportedly plead guilty).

"But," writes Eli Lake in The New Republic, "if it's illegal for Rosen
and Weissman to seek and receive 'classified information,' then many
investigative journalists are also criminals."

"While most administrations have tried to crack down on leaks, they
have almost always shied away from going after those who receive
them--until now."

"At a time when a growing amount of information is being classified,
the prosecution of Rosen and Weissman threatens to have a chilling
effect--not on the ability of foreign agents to influence U.S. policy,
but on the ability of the American public to understand it," writes
Lake.

See "Low Clearance" by Eli J. Lake, The New Republic, October 10
(subscription required):

     http://www.tnr.com/doc.mhtml?i=20051010&s=lake101005

See also "Israeli lobby spy case suggests new push to keep leaks from
reporters" by John Byrne, Raw Story, September 30:

     http://rawstory.com/admin/dbscripts/printstory.php?story=1250

SSCI MARKUP OF 2006 INTEL AUTHORIZATION ACT

The authority of the Director of National Intelligence over U.S.
intelligence policy would be further consolidated under the 2006
intelligence authorization act as marked up by the Senate Select
Committee on Intelligence.

Among other notable provisions, the new bill would assign authority to
the DNI to manage access to human intelligence information (sec. 403),
previously a function of the Director of Central Intelligence.

The bill would authorize defense intelligence officers to conduct
intelligence "assessment contacts" within the United States without
disclosing their own identity (sec. 431).

The bill would exempt "operational files" of the Defense Intelligence
Agency from the Freedom of Information Act (sec. 434).  Such an
exemption was rejected by a less compliant Congress when it was first
requested by DIA in 2000.

The 2006 intelligence authorization act, S. 1803, as marked up by the
Senate Intelligence Committee, is available here:

     http://www.fas.org/irp/congress/2005_cr/s1803.html

COURT ORDERS RELEASE OF ABU GHRAIB IMAGES

In a decision full of ruminative commentary on the pitfalls of
unchecked secrecy, a federal judge last week ruled that photographic
images of abuses committed by American military personnel at Abu
Ghraib prison in Iraq are not exempt from the Freedom of Information
Act.

Judge Alvin K. Hellerstein decided in favor of the ACLU, which had
sought the images, and against the Department of Defense, which
opposed their release.

"Suppression of information is the surest way to cause its significance
to grow and persist," the judge opined.  "Clarity and openness are the
best antidotes, either to dispel criticism if not merited or, if
merited, to correct such errors as may be found."

"The fight to extend freedom has never been easy, and we are once again
challenged, in Iraq and Afghanistan, by terrorists who engage in
violence to intimidate our will and to force us to retreat.  Our
struggle to prevail must be without sacrificing the transparency and
accountability of government and military officials. These are the
values FOIA was intended to advance, and they are at the very heart of
the values for which we fight in Afghanistan and Iraq."

The 50 page ruling includes discussions of the Glomar response (i.e.
neither confirming nor denying the existence of requested
information), the consequences of unwarranted secrecy, and the state
of FOIA law.  A copy of the decision, which is likely to be appealed,
is posted here:

     http://www.fas.org/sgp/jud/aclu092905.pdf

SELECTED CRS REPORTS

Some recent reports of the Congressional Research Service obtained by
Secrecy News include the following:

"The Middle East Peace Talks," updated September 29, 2005:

     http://www.fas.org/sgp/crs/mideast/IB91137.pdf

"Air Force Aerial Refueling," updated September 19, 2005:

     http://www.fas.org/sgp/crs/weapons/RS20941.pdf

"Material Support of Terrorists and Foreign Terrorist Organizations:
Expiring Amendments in Brief," August 16, 2005:

     http://www.fas.org/sgp/crs/terror/RS22222.pdf

"Material Support of Terrorists and Foreign Terrorist Organizations:
Sunset Amendments," August 11, 2005:

     http://www.fas.org/sgp/crs/terror/RL33035.pdf

"Free Mail for Troops Overseas," July 22, 2005:

     http://www.fas.org/sgp/crs/misc/RS22203.pdf

"Detainees at Guantanamo Bay," updated July 20, 2005:

     http://www.fas.org/sgp/crs/natsec/RS22173.pdf

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

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood at fas.org
voice:  (202) 454-4691