[Intelforum] Secrecy News -- 06/18/09

Thu Jun 18 16:47:51 EDT 2009

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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 54
June 18, 2009

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

**      2010 INTELLIGENCE AUTHORIZATION PENDING
**      CONGRESSIONAL ACTION ON SECRECY
**      RESOURCES ON NUCLEAR POLICY

2010 INTELLIGENCE AUTHORIZATION PENDING

Last month the Director of National Intelligence transmitted to Congress
the Obama Administration's proposed language for next year's Intelligence
Authorization Act.  This week, the Administration forwarded several
additional proposals.  To its credit, the Senate Intelligence Committee
has made this material available for public review on its web site.

	http://intelligence.senate.gov/intelauth2010.html

Unsurprisingly, the proposed language would generally tend to expand
intelligence agency authority while relaxing existing controls.

For example, the draft bill would grant the DNI a new exemption under the
Freedom of Information Act for "operational files."  Under this provision,
if an intelligence agency that has its own operational file exemption
transfers an operational file to the ODNI, the transferred information
would retain its exempt status.  (Normally, operational file information
that is disseminated beyond the originating agency would lose its
exemption from review under FOIA.)

In order to preserve the security of intelligence sources and methods and
to promote information sharing, DNI Blair testified last month, "It is
imperative that those [operational] files are accorded the same
protections at the ODNI as they are accorded at the CIA [for example]."

Recent experience suggests otherwise, however.  In 2005, FAS sought
certain unclassified budget records from the National Reconnaissance
Office, which the NRO denied because it said they were "operational
files."  We challenged that position in a FOIA lawsuit and a court ruled
that the NRO's claim to an operational file exemption was not valid due in
part to the fact that the document had been disseminated outside of the
agency to the ODNI.  More than a hundred partially redacted pages were
found to be releasable.

	http://www.fas.org/sgp/foia/nro-cbjb/index.html

At least a few lessons emerge from this episode:  First, it appears that
intelligence agencies have a tendency to invoke the operational files
exemption more broadly than is justified, in an attempt to exclude
releasable records from processing under the FOIA.  Second, the loss of
the NRO's operational file exemption in this case had no adverse effect on
information sharing within the intelligence community.  The NRO did not and
could not have stopped sharing its budget documents with the ODNI.  Third,
the processing of these records under FOIA did not result in any
uncontrolled release of classified information or of sensitive
intelligence sources and methods.  It just didn't.

Aside from the operational files exemption, the Administration's draft
intelligence authorization bill also would exempt the ODNI from the open
meeting requirements of the Federal Advisory Committee Act.  It would
cancel several existing reporting requirements.  And so forth.

Here are a few hypothetical secrecy reform provisions that were *not*
included in the Administration's draft bill:

**  A requirement that intelligence agencies perform a top-to-bottom
review of all of their classification guides with the objective of
eliminating all obsolete or unnecessary classification requirements. 
Modeled on the 1995 Fundamental Classification Policy Review at the
Department of Energy, such a process should include appropriate channels
for public input and review, along with the participation of subject
matter experts other than the original classifier.

**  A revision of the National Security Act of 1947 to clarify that the
requirement to protect intelligence sources and methods is limited only to
those sources and methods that would be jeopardized or compromised to the
detriment of national security if revealed.

**  An instruction to the DNI Open Source Center that OSC products that
are neither classified nor copyrighted should be made available to the
public.

CONGRESSIONAL ACTION ON SECRECY

The Senate on June 17 passed a bill sponsored by Senators Joseph Lieberman
and Lindsey Graham that would exempt from the Freedom of Information Act
certain photographs documenting the abuse of detainees held in U.S.
custody.  Senator Graham said that if the bill was not enacted into law,
the Obama Administration had assured him it would classify the photos to
prevent their release.  "Rahm Emanuel has indicated to me that the
President is committed to not ever letting these photos see the light of
day," he said.

	http://www.fas.org/sgp/congress/2009/s061709.html

Strictly speaking, however, classification alone is not sufficient to
exempt any such record from the FOIA.  It must also be "properly
classified," and that is a determination that is to be made by a court of
law.

Senate Jay Rockefeller introduced a bill to limit the abuse of the
"sensitive security information" (SSI) marking to withhold certain health
and safety information from the public.  "When an industrial emergency
happens and threatens the lives of residents, workers and first
responders, I absolutely believe the public has the right to receive
important information about what it means for them and their health," he
said. "Period."

	http://www.fas.org/sgp/congress/2009/rock061709.html

Strictly speaking, again, the bill does not modify the definition of
"sensitive security information" nor does it place public health and
safety considerations on an equal footing with security.  Rather, it
simply prohibits the deliberate, witting abuse of the SSI control
marking.

The Senate Judiciary Committee again postponed its consideration of the
State Secrets Protection Act (S.417) that would limit the ability of the
executive branch to terminate litigation by invoking the privilege. 
Senator Orrin Hatch outlined his opposition to the bill in a floor
statement last week.  "Unless serious changes are made to this legislation
and the amendments offered by myself and my Republican colleagues are
adopted, I cannot in good conscience vote this bill out of committee," he
warned on June 10.

	http://www.fas.org/sgp/congress/2009/hatch061009.html

RESOURCES ON NUCLEAR POLICY

The U.S. Air Force last month issued revised doctrine on "nuclear
operations," incorporating the conclusions of the 2001 Nuclear Posture
Review. But it is nearly obsolete upon release, since a new Nuclear
Posture Review that will presumably lead to a revised policy is already
underway.  The new Air Force doctrine may be of interest nevertheless,
since it presents an Air Force perspective on enduring issues of nuclear
deterrence and nuclear command and control in easily understandable,
mostly jargon-free terms.  See "Nuclear Operations," Air Force Doctrine
Document 2-12, May 7, 2009:

	http://www.fas.org/irp/doddir/usaf/afdd2-12.pdf

The text of a proposed agreement between the United States and the United
Arab Emirates concerning cooperation in the peaceful uses of nuclear
energy was transmitted by the White House to Congress last month, along
with assorted supporting materials.

	http://www.fas.org/man/eprint/uae-nuclear.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