[Intelforum] Secrecy News -- 06/10/09

Wed Jun 10 11:42:28 EDT 2009

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 51
June 10, 2009

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

**      CLASSIFICATION AND THE "DESCENT INTO TORTURE"
**      RECENT CONGRESSIONAL ACTIONS AND PUBLICATIONS
**      CONGRESSIONAL ACCESS TO NATIONAL SECURITY INFO
**      DECLASS PANEL HELPS OVERCOME REFLEXIVE SECRECY
**      FURTHER DECLASSIFICATION OF REAGAN-ERA DIRECTIVES
**      A NEW HISTORY OF THE NATIONAL SECURITY AGENCY

CLASSIFICATION AND THE "DESCENT INTO TORTURE"

The public has been significantly misled and misinformed concerning the
practice of abusive interrogation by the U.S. government and the resulting
damage to American political institutions, said Senator Sheldon Whitehouse
(D-RI) on the Senate floor yesterday.

	http://www.fas.org/irp/congress/2009_cr/s060909.html

"I am very sorry to say this--but there has been a campaign of falsehood
about this whole sorry episode. It has disserved the American public. As I
said earlier, facing up to the questions of our use of torture is hard
enough. It is worse when people are misled and don't know the whole truth
and so can't form an informed opinion and instead quarrel over
irrelevancies and false premises. Much debunking of falsehood remains to
be done but cannot be done now because the accurate and complete
information is classified," Sen. Whitehouse said.

"I want my colleagues and the American public to know that measured
against the information I have been able to gain access to, the story line
we have been led to believe--the story line about waterboarding we have
been sold--is false in every one of its dimensions."

He itemized several statements he said were demonstrably untrue, beginning
with the declaration by President Bush that "America does not torture."

He said a structured investigation was needed into what he called
"America's descent into torture."  First, it is necessary to document what
was done, under what conditions, and to what end.  A second set of
questions concerns "how this was allowed to happen."  Finally, a rigorous
debunking of erroneous and false assertions is needed.

Classification policy is an obstacle to all of these objectives, he said,
especially the latter:  "At the heart of all these falsehoods lies a
particular and specific problem: The 'declassifiers' in the U.S.
Government are all in the executive branch.  No Senator can declassify,
and the procedure for the Senate as an institution to declassify something
is so cumbersome that it has never been used."

RECENT CONGRESSIONAL ACTIONS AND PUBLICATIONS

Senators Joe Lieberman and Lindsey Graham said they would do their utmost
to block the release under the Freedom of Information Act of photographs
documenting the abuse of detainees held in U.S. custody.  "Such a release
would be tantamount to a death sentence to some who are serving our nation
in the most dangerous and difficult spots like Iraq and Afghanistan," they
said, urging passage of an amendment to exempt any such photographs from
the FOIA.

    http://www.fas.org/irp/congress/2009_cr/lieberman060809.html

Rep. Jane Harman introduced legislation to terminate the National
Applications Office, the DHS organization that would employ intelligence
satellite imagery for homeland security and domestic law enforcement
purposes.  DHS has failed to provide a legal framework and justification
for the program, she said, and therefore "Operation of the NAO in its
current state poses serious constitutional questions and threatens to
violate the privacy of Americans and their civil liberties."

	http://www.fas.org/irp/congress/2009_cr/harman-nao.html

Senator Russ Feingold and several colleagues in both parties introduced a
resolution that would strengthen the Senate Intelligence Committee by
giving it the power to appropriate as well as authorize funds for
intelligence.  The move is needed, the resolution said, "to provide
vigilant legislative oversight over the intelligence activities of the
United States to ensure that such activities are in conformity with the
Constitution and laws of the United States."

	http://www.fas.org/irp/congress/2009_cr/sres164.html

The record of a July 2006 hearing before the Senate Judiciary Committee
entitled "Hamdan v. Rumsfeld: Establishing a Constitutional Process" was
published in April 2009, with supplementary material for the record.

	http://www.fas.org/irp/congress/2006_hr/hamdan.pdf

Another Senate Judiciary Committee hearing volume from a June 2006 hearing
on "The Use of Presidential Signing Statements" was also published in April
2009.

	http://www.fas.org/irp/congress/2006_hr/signing.pdf

CONGRESSIONAL ACCESS TO NATIONAL SECURITY INFO

Executive branch officials understandably seek to maximize their authority
to regulate the distribution and disclosure of classified national security
information, and they often cite historical precedents dating back to the
days of President George Washington to justify their claims.  But though
some members of Congress seem not to realize it, Congress has an
independent claim to access such information, a claim with its own
historical foundation.

A new analysis by Louis Fisher of the Law Library of Congress provides a
nuanced account of several episodes from the Washington Administration
that tend to refute the more expansive views of executive branch authority
over classified information.

"Upon closer examination, precedents from the Washington Administration do
not support the claim of exclusive and plenary authority by the President,"
Dr. Fisher writes.  "The scope of the President's power over national
defense and foreign affairs depends very much on what Congress does in
asserting its own substantial authorities in those areas," he concludes. 
See "Congressional Access to National Security Information: Precedents
from the Washington Administration" by Louis Fisher, Law Library of
Congress, May 22, 2009:

	http://www.fas.org/sgp/eprint/fisher3.pdf

DECLASS PANEL HELPS OVERCOME REFLEXIVE SECRECY

One of the most successful innovations in the otherwise mostly stagnant
domain of classification policy was the creation of the Interagency
Security Classification Appeals Panel (ISCAP), an executive branch entity
that was established by President Clinton's 1995 executive order 12958.

For over a decade, the ISCAP has maintained an astonishing record of
ordering the declassification of information in a majority of the
documents that have been presented for its review.  In each of those
cases, the Panel effectively overruled the classification judgment of one
of its own member agencies.  There are policy lessons to be learned from
this experience concerning the often poor quality of routine
classification actions and the value of extending declassification
authority beyond the originating agency.

Bill Burr of the National Security Archive recently prepared a thoughtful
overview of the creation and the operation of the ISCAP, together with a
compilation of several of the latest documents that it approved for
release.  See "The Secrecy Court of Last Resort: New Declassification
Releases by the Interagency Security Classification Appeals Panel
(ISCAP)," National Security Archive Electronic Briefing Book, June 5:

	http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB276/index.htm

FURTHER DECLASSIFICATION OF REAGAN-ERA DIRECTIVES

One of the minor offenses of the Obama White House is its inexplicable
failure to publish presidential directives -- now dubbed Presidential
Policy Directives -- even when they are unclassified.  But presidential
directives from prior administrations continue to enter the public domain
following repeated declassification reviews. 

Several National Security Decision Directives (NSDDs) issued by President
Reagan were released in full or with fewer redactions last April at the
Reagan Library:

NSDD 12 on "Strategic Forces Modernization Program" was released in its
entirety.  A section on submarine launched missiles that was censored in a
prior declassification review was restored, along with other redactions
(thanks to www.thereaganfiles.com):

     http://www.fas.org/irp/offdocs/nsdd/nsdd-12.pdf

NSDD 35 on "The M-X Program" was also released in full, including two
previously censored paragraphs:

     http://www.fas.org/irp/offdocs/nsdd/nsdd-35.pdf

NSDD 21 on "Responding to Floggers in Cuba" was released with one
paragraph still redacted but several previous redactions now disclosed
(Floggers are Soviet MiG-23 fighter aircraft):

     http://www.fas.org/irp/offdocs/nsdd/nsdd-21.pdf

Other NSDDs that have undergone declassification review in recent years
leading to significant additional disclosures include the following:

NSDD 135, "Los Angeles Olympic Games Counterintelligence and Security
Precautions," March 27, 1984 (reviewed in 2004).

NSDD 139, "Measures to Improve U.S. Posture and Readiness to Respond to
Developments in the Iran-Iraq War," April 5, 1984, including previously
withheld passages concerning Saudi Arabia and Egypt (2007).

NSDD 141, "Responding to Escalation in the Iran-Iraq War," May 25, 1984
(2007).

NSDD 147, "U.S. Policy Towards India and Pakistan," October 11, 1984
(2007).

These directives and other NSDDs may be found here:

     http://www.fas.org/irp/offdocs/nsdd/index.html

A NEW HISTORY OF THE NATIONAL SECURITY AGENCY

"The Secret Sentry" by Matthew Aid is a comprehensive new history of the
National Security Agency, from its origins in World War II through its
Cold War successes, failures and scandals up until the present.

Aid, an independent historian who is also a visiting fellow at the
National Security Archive, has synthesized a tremendous amount of research
into a narrative that is highly readable and sometimes gripping.  All of
the familiar stops are there, including the Truman memo of 1952 that
established the Agency, the Gulf of Tonkin incident, KAL 007, 9/11 and on
to today.

But the book also includes quite a bit of unfamiliar historical material,
and almost any reader is likely to discover something new and interesting.
 I learned, for example, that a few months after seizing the USS Pueblo in
1968, North Korea published a book in French containing the full text of
many captured NSA documents, some of which, Mr. Aid says, are still
considered to be classified today (p. 142).

What will make The Secret Sentry indispensable to researchers are its
nearly one hundred pages of endnotes, which constitute a unique finding
aid to the most current archival releases, internal agency histories, and
other valuable records.  Some of the documents gathered by Mr. Aid in the
course of his decades of research later vanished from public stacks at the
National Archives, prompting him to realize that some government agencies
were silently -- and often improperly -- reclassifying declassified
records.  Portions of those now inaccessible records have been integrated
into this new history.

Inevitably, the book contains some minor errors.  Mr. Aid repeats an
assertion by the 9/11 Commission that Osama bin Laden was alerted to NSA
monitoring of his satellite phone as the result of a 1998 news story that
appeared in the Washington Times (p. 383, note 69).  But he neglects to
note that this assertion has been effectively refuted.  (See, e.g., "File
the Bin Laden Phone Leak Under 'Urban Myths'" by Glenn Kessler, Washington
Post, December 22, 2005.)

The author is generous in his citations to the leading authors in the
intelligence field, from David Wise and David Kahn to Seymour Hersh and
Jeffrey Richelson and other less celebrated writers -- with one strange
and disconcerting exception.  There is not a single reference in the
entire book to James Bamford, whose 1983 book The Puzzle Palace, among
others, blazed the trail that The Secret Sentry follows.  Perhaps Mr. Aid
felt it was necessary to ignore Mr. Bamford so as not to be constantly
agreeing or disagreeing with him, and confirming or disputing his
accounts.  If that is the case, he ought to have said so.

The Secret Sentry is being published this week by Bloomsbury Press.

	http://www.bloomsburypress.com/books/catalog/the_secret_sentry

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

The Secrecy News Blog is at:
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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