SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 116
November 6, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** COVERT ACTION POLICY MAY NEED UPDATING, SAYS CRS
** ARMY PRESENTS STANDARD CLASSIFICATION METHODOLOGY


COVERT ACTION POLICY MAY NEED UPDATING, SAYS CRS

U.S. intelligence policy on covert action, including presidential
authorization and congressional notification requirements, is "less
than clear," according to a new report from the Congressional
Research Service, and may need to be updated to encompass activities
performed by the Department of Defense.

Covert action generally refers to CIA operations undertaken abroad
against foreign targets in which U.S. sponsorship is concealed. But
increasingly, some DoD special operations seem to fit the criteria
for covert action.

"Senior U.S. intelligence community officials have conceded that the
line separating CIA and DOD intelligence activities has blurred,
making it more difficult to distinguish between the traditional
secret intelligence missions carried out by each," according to the
new CRS report.

The Department of Defense contends that there is a difference between
its "clandestine operations," which do not entail any unique
oversight requirements, and CIA "covert actions," which cannot be
conducted without a written presidential finding and congressional
notice, mandated by a 1991 statute.

As explained by CRS, "a clandestine operation is an operation
sponsored or conducted by governmental departments or agencies in
such a way as to assure secrecy or concealment. Such an operation
differs from a covert action in that emphasis is placed on
concealment of the operation rather than on the concealment of the
identity of the sponsor."

In certain DoD special operations, however, "an activity may be both
covert and clandestine."

The CRS report presents a menu of policy questions for lawmakers to
consider in evaluating whether to modify U.S. policy on covert
action.

A copy of the report was obtained by Secrecy News.

See "Covert Action: Legislative Background and Possible Policy
Questions," November 2, 2006:

http://www.fas.org/sgp/crs/intel/RL33715.pdf


ARMY PRESENTS STANDARD CLASSIFICATION METHODOLOGY

U.S. Army intelligence (G2) has developed a new methodology for
applying national security classification controls and for training
personnel in the proper use of classification restrictions.

Failure to classify correctly has consequences, a tutorial on the new
approach points out.

"Over-classification is costly, inefficient and can cause slow downs
to development/operation. Under-classification can cause compromise,
inadvertent disclosures and confusion."

But getting it right is easier said than done, because it involves the
conscious exercise of informed judgment.

"The descriptors used in addressing damage at the confidential
(damage), secret (serious damage) or top secret (exceptionally grave
damage) levels are subjective."

The new Army methodology "provides a standardized method of making an
objective decision about a subjective issue," wrote Lt. Gen. John F.
Kimmons, U.S. Army Deputy Chief of Staff for Intelligence, in a cover
memorandum.

See "Standardized Methodology for Making Classification Decisions,"
Office of the Army Deputy Chief of Staff, G-2, October 25, 2006:

http://www.fas.org/sgp/othergov/dod/methodology.pdf

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 117
November 8, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** A GLIMPSE OF ARMY SPECIAL OPERATIONS FORCES
** FIRED AIR MARSHAL DEFENDS DISCLOSURE OF SENSITIVE SECURITY INFO


A GLIMPSE OF ARMY SPECIAL OPERATIONS FORCES

The role of special operations forces in the U.S. military is
steadily increasing but relatively little is publicly known about
the activities and performance of these specialized units.

A new U.S. Army manual fills in some of the gaps in the public record
with a description of the structure, capabilities and missions of
U.S. Army Special Operations Forces (ARSOF).

The manual has not been approved for public release, but a copy was
obtained by Secrecy News.

"ARSOF are specially organized, trained, and equipped military
forces," it explains. "They conduct SO [special operations] to
achieve military, political, economic, or informational objectives
by generally unconventional means in hostile, denied, or politically
sensitive areas."

According to the Army, special operations forces can leap tall
buildings in a single bound.

"They provide to the Nation an array of deployable, agile, versatile,
lethal, survivable, and sustainable formations, which are affordable
and capable of rapidly reversing the conditions of human suffering
and decisively resolving conflicts."

Counterterrorism missions are a particular focus of special
operations today.

"ARSOF are, and will be for the near future, continuously engaged
against terrorists whose goal is the destruction of American
freedoms and the American way of life," the new manual says.

Special operations also support intelligence collection.

"ARSOF are a key enabler in the WOT [war on terror] by conducting SO,
which obtain actionable intelligence.... The results of these
activities may be fed directly to a commander or Country Team or may
be input into the intelligence process for processing, analysis, and
dissemination to military and other government agencies (OGAs)."

There is also a domestic component to Army special operations, though
it is not clearly specified in the manual.

"The United States employs ARSOF capabilities at home and abroad in
support of U.S. national security goals in a variety of operations."

The manual spells out the principles of special operations warfare,
including preemption, dislocation, disruption, and so forth.

"SO [special operations] are frequently clandestine or low-visibility
operations, or they may be combined with overt operations. SO can
be covert but require a declaration of war or a specific finding
approved by the President or the SecDef," the manual states.

(The asserted ability of the Secretary of Defense to authorize covert
operations has not been explicitly claimed before, to Secrecy News'
knowledge.)

"Significant legal and policy considerations apply to many SO
activities," the manual observes.

The new Army manual is unclassified, but its distribution is formally
restricted "to protect technical or operational information."

In view of the possible sensitivity of the document, Secrecy News is
only posting the preface and the first of the eight chapters from
the 119 page manual.

See "Army Special Operations Forces," U.S. Army Field Manual FM 3-05,
September 20, 2006:

http://www.fas.org/irp/doddir/army/fm3-05-overview.pdf

The Congressional Research Service noted earlier this year that "The
2006 Quadrennial Defense Review (QDR) has called for a 15% increase
in special operations forces beginning in FY 2007."


FIRED AIR MARSHAL DEFENDS DISCLOSURE OF SENSITIVE SECURITY INFO

A former Federal Air Marshal who was fired by the Transportation
Security Administration last April for disclosing "sensitive
security information" (SSI) to the press has filed suit against the
government arguing that his disclosure was protected under the
Whistleblower Protection Act.

SSI is unclassified information regarding transportation security
that is protected from disclosure by statute.

"Your release of SSI to the media was unauthorized and not protected
by the First Amendment of the U.S. Constitution," a TSA official
wrote to Air Marshal Robert McLean, notifying him of his
termination. See:

http://www.fas.org/sgp/othergov/tsa041006.pdf

But whistleblower advocacy groups, including the Government
Accountability Project and the Project on Government Oversight, have
rallied to the support of Mr. McLean.

"The Federal Air Marshal Service is in blatant violation of the
Whistleblower Protection Act, which protects the disclosure of
unclassified information that an employee feels endangers public
health and safety, and Robert certainly did that," said Adam Miles,
legislative director of GAP, in a Washington Times story.

See "Ex-air marshal to sue over 'SSI' label" by Audrey Hudson,
Washington Times, October 30:

http://washingtontimes.com/national/200610...8718r_page2.htm

See also "Air marshal's firing prompts whistleblower suit" by Stephen
Losey, Federal Times, November 7:

http://federaltimes.com/index.php?S=2331806
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 118
November 13, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** REVIVING CONGRESSIONAL OVERSIGHT
** ROBERT GATES ON OPENNESS, OVERSIGHT


REVIVING CONGRESSIONAL OVERSIGHT

"I believe that the first order of business when we reorganize after
the first of the year is congressional oversight," said Senate
Democratic Leader Sen. Harry Reid (D-NV) on November 10 after it
became clear that Democrats would control the Senate and House in
the next Congress.

"There simply has been no oversight in recent years," Sen. Reid said.

That of course is an exaggeration. Even on the narrow subject of
government secrecy, for example, Rep. Christopher Shays (R-CT) held
multiple oversight hearings over the last two years that
substantially enriched the public record.

But it is nevertheless true that congressional oversight atrophied
under Republican leadership and that many fateful national policy
decisions escaped scrutiny or challenge. That is expected to change
as Democrats take charge in January.

New members and staff may need to learn or relearn the tools and
techniques of oversight.

Beginning with the basics, the Congressional Research Service
explains: "Congressional oversight refers to the review, monitoring,
and supervision of federal agencies, programs, activities, and
policy implementation."

More simply still: "Oversight is a way for Congress to check on, and
check, the executive."

A 146 page manual prepared by CRS in 2004 describes the purposes and
practices of congressional oversight in detail.

See "Congressional Oversight Manual," October 21, 2004:

http://www.fas.org/sgp/crs/misc/RL30240.pdf

See also "Congressional Oversight," updated January 3, 2006:

http://www.fas.org/sgp/crs/misc/97-936.pdf

ROBERT GATES ON OPENNESS, OVERSIGHT

As Director of Central Intelligence from 1991-1993, Robert M. Gates,
the nominee to be the next Secretary of Defense, grappled with
questions of government secrecy more than almost any other agency
head and helped to inaugurate a decade of increasing openness in
intelligence and elsewhere.

Though he said the term "CIA openness" was "an oxymoron," Mr. Gates
also expressed the view that the interests of the CIA would best be
served by eliminating unnecessary restrictions on disclosure of
Agency information.

He undertook several initiatives to increase openness in U.S.
intelligence, some of which did not fail.

He directed the publication of unclassified and declassified articles
from the CIA journal Studies in Intelligence; he began the process
of declassifying records concerning major U.S. covert actions during
the cold war; he signaled the CIA's willingness to cooperate in a
government-wide program of declassifying records pertaining to the
assassination of President Kennedy; and he initiated a program of
declassification of National Intelligence Estimates on the former
Soviet Union.

"Over the years, CIA's approach to dealing with the media and the
public has been, at best, uneven," he said in a 1992 speech. It
"took place against a backdrop of overall continuing and
undifferentiated secrecy.... This is going to change."

Mr. Gates laid out his views on the subject and his new initiatives
in "CIA and Openness," a speech to the Oklahoma Press Association,
on February 21, 1992:

http://www.fas.org/irp/eprint/gates1992.html

Most of Mr. Gates's changes in intelligence disclosure policy were
incremental and did not fundamentally transform either internal or
external communications. Many of the proposed changes were adopted
half-heartedly or inconsistently, or later abandoned. Some were not
implemented at all.

For example, at his 1991 confirmation hearing, Mr. Gates expressed
support for the idea of declassifying the intelligence budget total,
but he never did so.

An excellent proposal that he presented in his 1992 speech -- to
"publish on an annual basis an index of all documents [CIA] has
declassified" -- was never accomplished, though it remains a
valuable and perfectly achievable objective, for CIA and other
national security agencies.

Mr. Gates' halting efforts to increase openness were explicitly
motivated by bureaucratic self-interest, but they were not less
effective for that reason. To the contrary, he seemed to understand
what few agency heads do: that openness and responsiveness to the
public can advance the interests of an agency over the long run.

Mr. Gates has also displayed an appreciation for the role of
congressional oversight that may yet serve him and the nation well.

"I sat in the Situation Room in secret meetings for nearly twenty
years under five Presidents, and all I can say is that some awfully
crazy schemes might well have been approved had everyone present not
known and expected hard questions, debate, and criticism from the
Hill," he wrote in his 1996 memoir "From the Shadows" (p. 559).

"And when, on a few occasions, Congress was kept in the dark, and
such schemes did proceed, it was nearly always to the lasting regret
of the Presidents involved. Working with the Congress was never
easy for Presidents, but then, under the Constitution, it wasn't
supposed to be. I saw too many in the White House forget that."




_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 119
November 15, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** CONFRONTING SECRET LAW
** THE LIMITS OF TRANSPARENCY
** ARMY DOCTRINE ON URBAN OPERATIONS
** IN OTHER NEWS
** ILLUMINATING RUSSIA'S MAIN DIRECTORATE OF SPECIAL PROGRAMS


CONFRONTING SECRET LAW

The U.S. Supreme Court should reject the idea of a secret law or
directive that purports to regulate public behavior yet cannot be
disclosed, several public interest groups argued yesterday.

The groups filed amicus curiae briefs in support of a petition by
John Gilmore, who challenged a government requirement that he
produce official identification in order to board an airplane and
was told that he could not see the underlying policy document
because it is "sensitive security information."

The government says that Mr. Gilmore had adequate notice of the ID
requirement without inspecting the written policy.

But "The laws of the United States do not permit the Executive
Branch to govern public conduct through secret laws," wrote Marcia
Hofmann of the Electronic Frontier Foundation (EFF), and the Court
should therefore agree to review the Gilmore matter. The FAS
Project on Government Secrecy signed on to the EFF brief.

Other amicus briefs were filed by the Reporters Committee for
Freedom of the Press and the Electronic Privacy Information Center.

The latest briefs, and other background on the case, can be found
here:

http://papersplease.org/wp/category/secret-law/

See also "Groups ask high court to review aviation ID policies," by
Andrew Noyes, National Journal's Technology Daily, November 14:

http://www.govexec.com/story_page.cfm?articleid=35494


THE LIMITS OF TRANSPARENCY

Openness in government is a prerequisite to democratic self-rule and
is the best available antidote to official corruption.

Yet greater transparency, particularly on the international level,
"is not an unmitigated good," argues Kristin M. Lord in a new,
somewhat contrarian book.

"In all likelihood, the trend toward greater transparency will be at
once positive and pernicious," she writes, particularly since some
disputes are based on real conflicts of interest and are not simple
misunderstandings that could be resolved through greater disclosure.

"More information about the military capabilities of other states may
show vulnerability and encourage aggression by the strong against
the weak. Greater transparency can highlight hostility and fuel
vicious cycles of belligerent words and deeds.... Transparency
sometimes can make conflicts worse."

The author illustrates her thesis with case studies of the role of
information in the unfolding of the Rwanda genocide, and of
information policy in Singapore's relatively open yet rather
authoritarian society. She seeks to distinguish between the means
of openness and the hoped-for ends that are implicitly believed to
follow from them, sometimes without justification.

For more information, including the first chapter of the book, see
"The Perils and Promise of Global Transparency" by Kristin M. Lord,
State University of New York Press, 2006:

http://www.sunypress.edu/details.asp?id=61337

The ill effects of too much transparency are still a rather
hypothetical problem, since national and international efforts to
control disclosure of information persist and in some cases are
growing.

In another recent book, author Alasdair Roberts identifies several
factors that are inhibiting transparency, including the
privatization of certain categories of government information, the
increasing influence of international organizations with restrictive
information policies, and the growing international collaboration of
security agencies.

See "Blacked Out: Government Secrecy in the Information Age" by
Alasdair Roberts, Cambridge University Press, 2006:

http://www.cambridge.org/us/catalogue/cata...isbn=0521858704


ARMY DOCTRINE ON URBAN OPERATIONS

The conduct of military operations in urban areas is the subject of a
new Army doctrinal manual.

"Of all the environments in which to conduct operations, the urban
environment confronts Army commanders with a combination of
difficulties rarely found elsewhere [due to its] intricate
topography and high population density."

The hazards and threats posed by the urban environment, and the
spectrum of potential responses to mitigate or exploit them, are
considered at length in the 315-page unclassified manual.

See "Urban Operations," U.S. Army Field Manual FM 3-06, 26 October
2006 (a large 14 MB PDF file):

http://www.fas.org/irp/doddir/army/fm3-06.pdf


IN OTHER NEWS

"For those who believe in transparent government and fact-driven
legislation, the power shift in the U.S. Congress represents a
unique opportunity to open up one important Congressional
institution -- the Congressional Research Service -- and bring back
another one -- the Office of Technology Assessment -- twelve years
after it was disbanded," suggests Christian Beckner in Homeland
Security Watch:

http://www.hlswatch.com/2006/11/13/free-th...g-back-the-ota/

The Army Science Board has drastically reduced public disclosure of
its unclassified advisory studies, Inside the Army reported. And by
doing so, it may have undermined the impact of its own work. See
"Citing Security, Army Tightens Reins On Science Board Research" by
Fawzia Sheikh, Inside the Army, November 13:

http://defense.iwpnewsstand.com/insider_sp...ssue=11132006sp

The unprecedented prosecution of two former pro-Israel lobbyists who
are charged with improperly receiving and disseminating classified
information has unpleasant implications for reporters who cover
national security, among others. The case was reviewed by civil
libertarian Nat Hentoff in "Bush Revives Espionage Act," Village
Voice, November 10:

http://villagevoice.com/news/0646,hentoff,75002,6.html

"The mainstream news media is too fond of articles in which it is
said some flavor of demonical terror menace can be put together from
cookbooks found on the Internet," George Smith blasts in his Dick
Destiny blog and in the UK's The Register.

http://www.theregister.co.uk/2006/11/10/dd_nuke_cookbooks/

Federal Computer Week did a profile this week of, ahem, me. See "A
career as a secrecy watchdog" by Aliya Sternstein, FCW, November 13:

http://www.fcw.com/article96769-11-13-06-Print


ILLUMINATING RUSSIA'S MAIN DIRECTORATE OF SPECIAL PROGRAMS

The Main Directorate of Special Programs (Russian acronym: GUSP) is a
somewhat mysterious Russian security organization that was
established as one of the various successors to the former KGB.

"The directorate's specialists have a great deal of experience in
building fortified structures and tunnels and know how to handle
explosives," according to an article in Moskovskiy Komsomolets (16
September 1999).

"Moreover, the GUSP is the president's very own special service and
is accountable only to the head of state."

In a neat bit of detective work, the Open Source Center (OSC) of the
Office of the Director of National Intelligence noticed that new
details of GUSP's internal structure could be gleaned from official
badges sold by commercial vendors of military paraphernalia.

"Russian commercial websites specializing in the sale of military
insignia provided identifying information for a number of military
units belonging to the Special Facilities Service (SSO) of the Main
Directorate for Special Programs of the Russian Federation President
(GUSP)," the Open Source Center reported this week.

"[This] is in most instances the only available public reference for
these units and their affiliation with the Special Facilities
Service," the OSC said.

In another neat bit of work, Allen Thomson retrieved images of those
telltale military insignia and combined them with other published
material to produce "A Sourcebook on the Russian Federation Main
Directorate of Special Programs (GUSP)" which may be found here:

http://www.fas.org/irp/world/russia/gusp.pdf

Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 120
November 27, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** SOME NOTABLE CRS REPORTS
** TACKLING SENSITIVE BUT UNCLASSIFIED INFORMATION
** REVISITING THE STATE SECRETS PRIVILEGE


SOME NOTABLE CRS REPORTS

When new leadership takes control in the 110th Congress, the
public may finally gain routine online access to finished
products of the Congressional Research Service.

The prospects for adopting this simple change in disclosure
policy are enhanced by the fact that such a move would not
require Bush Administration concurrence.

For the time being, however, congressional policy prohibits
direct public access to CRS reports.

Some notable new CRS reports obtained by Secrecy News that are
not otherwise available online include the following.

"Intelligence Estimates: How Useful to Congress?", November 21,
2006:

http://www.fas.org/sgp/crs/intel/RL33733.pdf

"Iraqi Civilian Deaths Estimates," November 22, 2006:

http://www.fas.org/sgp/crs/mideast/RS22537.pdf

"Televising Supreme Court and Other Federal Court Proceedings:
Legislation and Issues," updated November 8, 2006:

http://www.fas.org/sgp/crs/secrecy/RL33706.pdf

"Anti-Terrorism Authority Under the Laws of the United Kingdom
and the United States," September 7, 2006:

http://www.fas.org/sgp/crs/intel/RL33726.pdf


TACKLING SENSITIVE BUT UNCLASSIFIED INFORMATION

The proliferation of new restrictions on the disclosure of
information that is designated "sensitive but unclassified"
(SBU) has been the subject of much churning within the national
security policy apparatus this year.

Last December, President Bush ordered the development of
recommendations to standardize procedures for marking
information as SBU. By some counts, there are more than one
hundred different SBU-type categories used in executive branch
agencies.

"The growing and non-standardized inventory of SBU designations
and markings is a serious impediment to information sharing
among agencies, between levels of government, and, as
appropriate, with the private sector," according to a recent
report to Congress.

The recommendations to reduce and standardize this hypertrophied
tangle of restrictions were due last July. But the initial
submission was deemed unsatisfactory and an interagency working
group was sent back to the drawing board with a new deadline of
January 2007.

The latest official word on the subject is contained in Chapter
10 of the "Information Sharing Environment Implementation
Plan," published by the Office of the Director of National
Intelligence, November 2006:

http://www.fas.org/irp/agency/ise/plan1106.pdf

Extensive background on the challenges posed by SBU and the
options for dealing with it can be found in a newly updated
report on the subject from the Congressional Research Service.
See "Sensitive But Unclassified Information and Other Controls:
Policy and Options for Scientific and Technical Information,"
updated November 14, 2006:

http://www.fas.org/sgp/crs/secrecy/RL33303.pdf

A focused look at the handling and mishandling of SBU information
within the Department of Justice was provided by the Government
Accountability Office in a new report last week. See "Managing
Sensitive Information: DOJ Needs a More Complete Staffing
Strategy for Managing Classified Information and a Set of
Internal Controls for Other Sensitive Information" [GAO-07-83],
October 2006:

http://www.fas.org/sgp/gao/gao-07-83.pdf


REVISITING THE STATE SECRETS PRIVILEGE

A new assessment of the "state secrets privilege" disputes the
claim presented in several other recent critiques that
government reliance on the privilege to curtail or terminate
sensitive litigation has increased in recent years.

"I find that the Bush Administration does not differ
qualitatively or quantitatively from its predecessors in its use
of the privilege," concludes Robert M. Chesney in a forthcoming
paper in the George Washington Law Review.

Along with a survey of the origins and the history of the state
secrets privilege, the author, a law professor at Wake Forest
University, challenges the contentions of legal scholars such as
William Weaver and Louis Fisher who argue that there has been a
distinct increase in use of the privilege.

In large part, the dispute reflects definitional differences
regarding what constitutes a state secrets case, when the
privilege is asserted, and how complete the available data are.

In a useful appendix to his paper, Prof. Chesney provides a
tabulation of 89 opinions in which the state secrets privilege
has been asserted since 1954. But these only include published
opinions, a subset of the unknown total. And for technical
reasons, he excludes some cases that have been previously cited
as state secrets cases but includes others that have not been.

Fundamentally, he writes, "The reality is that we simply do not
know, and have no way of finding out, just how frequently the
privilege may have been asserted during any particular period."

After reviewing how the government has used privilege over the
years, he concludes that "the pattern of implementation of the
state secrets privilege does not depart significantly from its
past usage."

Yet Prof. Chesney adds that "To say that the privilege has long
been with us and has long been harsh is not to say, however,
that it is desirable to continue with the status quo."

He considers the feasibility of enacting reforms to limit or
modify the assertion of the privilege and finds reason to
conclude that such reforms may be appropriate, particularly
"where the legality of government conduct is itself in issue."

The abstract and a link to the full text of "State Secrets and
the Limits of National Security Litigation" by Robert Chesney
may be found here:

http://ssrn.com/abstract=946676




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

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 121
November 29, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** BURDEN OF PROOF IN AIPAC CASE IS "NOT INSUBSTANTIAL," COURT SAYS
** NRC IS NOT SECRETIVE ENOUGH, SAY NBC NEWS


BURDEN OF PROOF IN AIPAC CASE IS "NOT INSUBSTANTIAL," COURT SAYS

A federal court this month denied a motion that would have eased the
government's prosecution of two former officials of the American
Israel Public Affairs Committee who are charged with mishandling
classified information.

Prosecutors had argued that they should not be obliged to prove that
the defendants "actually knew the disclosure of the information was
potentially harmful to the United States."

But in a ruling from the bench on November 16, Judge T.S. Ellis III
denied the motion and said they must prove the defendants had such
knowledge.

The transcript of the November 16 hearing was placed in the court
docket yesterday and a copy was obtained by Secrecy News.

http://www.fas.org/sgp/jud/rosen111606.pdf

The latest ruling followed a momentous August 9 decision that
non-government personnel who are not accused of espionage could be
tried under the Espionage Act for receipt and transmission of
classified information. In that decision, Judge Ellis denied a
defense motion to dismiss the case altogether on constitutional and
other grounds.

But he also imposed significant requirements on the prosecution to
show that the defendants knew they were obtaining closely held
national defense information; knew that it was unlawful to disclose
that information; knew that the recipients in the press and a foreign
embassy were not authorized to receive it; and that the defendants
knew that disclosure of the information would be potentially damaging
to the United States.

In an August 18 motion for clarification, prosecutors objected to the
last requirement.

"Case law does not support the notion that 'willful' intent requires
the government to prove that a defendant actually knew the
information was potentially harmful to the United States," the
government argued. See a copy of the motion for clarification here:

http://www.fas.org/sgp/jud/rosen081806.pdf

But it does now, Judge Ellis said.

"To the extent that the motion seeks clarification that the Government
need not prove at all that the defendants knew that their disclosure
was potentially harmful to the United States, that's not
clarification, that's reconsideration. So, I will deny it."
(Transcript, page 10).

As a result of the ruling, the prosecution faces a considerable,
possibly insurmountable obstacle.

"You prevailed in significant part [against the defendants' earlier
motion to dismiss]," Judge Ellis told prosecutors on November 16.
But "in prevailing, you have a burden that is not insubstantial."

Likewise, "in losing [the motion to dismiss, defense attorneys] Mr.
Nassikas and Mr. Lowell see some benefits to them," Judge Ellis
observed.

Given the difficulty of meeting the Court's requirements, the fear
that this unprecedented case would have a chilling effect on
reporters and public interest advocates who depend upon unauthorized
access to classified information has been muted somewhat.

Today, it might be noted, the New York Times published the full text
of a classified November 8 memorandum from National Security Advisor
Stephen Hadley regarding Iraq.

http://www.nytimes.com/2006/11/29/world/mi...st/29mtext.html

A trial date in the AIPAC case had originally been set for August
2006. But due to the complexity of the case the date has been
repeatedly deferred. Judge Ellis said he would reserve May and June
2007 for a possible trial.

He also said that a leak investigation into who disclosed
pre-indictment reports of the case to CBS News in August 2004 is
"ongoing."


NRC IS NOT SECRETIVE ENOUGH, SAYS NBC NEWS

Thousands of sensitive Nuclear Regulatory Commission documents
regarding nuclear power plant security and vulnerability are
available in public document rooms across the country, NBC News
reported on November 27 in a rather breathless "hidden camera"
investigation that illustrates the difficulty that some people have
in thinking clearly about secrecy and security.

"Many of the documents we were able to access were among the thousands
of files the NRC pulled from its Web site after 9/11, deemed too
sensitive to be available to the public. But that same effort to
clean out sensitive information, it seems, was never made with NRC's
document collections in public libraries across the country,"
reported Lisa Myers of NBC.

http://www.msnbc.msn.com/id/15922717/

"What this means is that we've given the terrorists an easy map in
order to find out about our nuclear facilities," former New Jersey
Governor and 9/11 Commission Chair Thomas Kean told NBC. "It's the
worst possible thing we could be doing."

In fact, however, it is simple to think of worse possible things,
beginning with publicizing the supposed existence of "an easy map"
for terrorists.

"It is baffling to me that the NRC would consider this information so
sensitive that it should be pulled from its on-line database, yet
apparently the information was considered safe enough to be left in
more than 80 public libraries scattered throughout the nation," wrote
Rep. Bart Gordon (D-TN) of the House Science Committee on October 27.

http://www.fas.org/sgp/news/2006/10/gordon102706.pdf

But the distinction should not be hard to understand: The local public
document rooms serve the communities that are most directly affected
by nuclear plant safety and security issues. In contrast, an on-line
database is globally accessible to anyone with an internet
connection. It is not surprising that this elementary difference
would be reflected in official disclosure policy.

"The NRC is aware that a limited amount of [sensitive] information
continues to exist in the public domain," according to an official
statement from the Nuclear Regulatory Commission responding to the
NBC News report.

"However, NRC believes that the usefulness of this information is
minimal given its age and subsequent changes to and improvements in
security programs and physical modifications that have been made to
nuclear facilities since Sept. 11."

"The agency decided not to attempt to retrieve or restrict access to
this information and instead has focused its actions on more recent
and relevant information available in public electronic systems," the
NRC said.

http://www.fas.org/sgp/news/2006/11/nrc112706.pdf

That's not good enough, fumed David Lochbaum, a nuclear safety
engineer with the Union of Concerned Scientists, who echoed the views
of Rep. Gordon.

"I fail to understand why I cannot obtain documents from the NRC's
[main] Public Document Room that I can access from ... any of the
dozens of other local public document rooms across the nation. This
profound inconsistency tells me loud and clear that NRC is wrong,
either in denying access to the documents in the Public Document Room
or in not restricting access to the documents elsewhere."

http://www.fas.org/sgp/news/2006/11/ucs112806.pdf

If NRC had unlimited resources and no other responsibilities, then
absolute consistency of the kind advocated by the Union of Concerned
Scientists might be a virtue. But that is not the case.

In Secrecy News' view, all of these individuals and NBC News have
misconstrued the situation. The NRC has acted appropriately under the
circumstances.

The fact is that unclassified NRC reports on power plant security and
vulnerability -- some of them quite graphic and detailed -- have been
deposited in public reading rooms for decades. Their purpose is to
address community concerns about safety and security at local nuclear
power plants.

There has never been a single case in which the availability of such
reports caused or contributed to a public health, safety or security
hazard.

Meanwhile, we are living in an era of unprecedented growth in official
secrecy. Unclassified government records on a wide variety of matters
affecting public health and national policy are increasingly marked
"for official use only" and off-limits to citizens and taxpayers.

Scolding government bureaucracies for not being secretive enough
undermines efforts to achieve the increased openness that the 9/11
Commission said was needed to prevent future terrorist attacks.

More fundamentally, there are an infinite number of ways to cause
destruction and wreak havoc. Using the media to ratchet up public
fear over the nightmare scenario du jour is the work of terrorists.
It would be a pity to help them.

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 122
December 1, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** KILLING HABEAS CORPUS
** NEW FROM JASON
** NAVY MIND CONTROL
** OTHER ODDS AND ENDS


KILLING HABEAS CORPUS

Habeas corpus refers to the right of a person who has been detained by
the government to challenge his detention in a court of law.
Although the U.S. Constitution does not permit the suspension of
habeas corpus except in case of invasion or rebellion, last September
Congress did so anyway at the behest of the Bush Administration.

In a startling display of how easy it can be to disable even the most
elementary constitutional protections, Congress enacted the Military
Commissions Act of 2006, which would deprive suspected enemy
combatants held abroad of their ability to seek judicial review of
their status.

Proposed limits on habeas corpus were the subject of an intense and
contentious hearing before the Senate Judiciary Committee recently,
the record of which has just been published.

See "Examining Proposals to Limit Guantanamo Detainees' Access to
Habeas Corpus Review," Senate Judiciary Committee, September 25:

http://www.fas.org/irp/congress/2006_hr/habeas.html

Some of the more electric moments in the hearing were recounted in The
New Yorker this week in a profile of Sen. Arlen Specter, who
inexplicably condemned the proposed new restrictions on habeas corpus
and then voted in favor of them.

See "Killing Habeas Corpus" by Jeffrey Toobin, The New Yorker,
December 4:

http://www.newyorker.com/fact/content/articles/061204fa_fact

"In my view, [the Military Commissions Act] has dishonored our
Nation's proud history," said Sen. Christopher Dodd (D-CT), who
introduced legislation on November 16 that would repeal several of
the Act's provisions. See:

http://www.fas.org/irp/congress/2006_cr/dodd111606.html


NEW FROM JASON

The elite JASON defense science advisory panel, most of whose
deliberations and conclusions are classified, surfaced publicly for a
moment with two new releases.

One new JASON report addresses the feasibility of reducing Defense
Department dependence on fossil fuels.

"In light of an increasing U.S. dependence on foreign oil, as well as
rising fuel costs for the U.S. and the DoD, and implications with
regard to national security and national defense, JASON was charged
in 2006 by the DDR&E [Director, Defense Research and Engineering]
with assessing pathways to reduce DoD's dependence on fossil fuels."

A copy of the report was obtained by Secrecy News.

See "Reducing DoD Fossil-Fuel Dependence," JASON report JSR-06-135,
September 2006 (105 pages, 4.5 MB PDF):

http://www.fas.org/irp/agency/dod/jason/fossil.pdf

The second release is an unclassified summary of a JASON review of
plutonium aging in nuclear weapons, which found that most plutonium
weapon "pits" have "credible lifetimes of at least 100 years." This
important conclusion diminishes the case for any new nuclear weapon
development.

See the unclassified executive summary of the JASON report on "Pit
Lifetime" here (flagged by ArmsControlWonk.com):

http://www.nukewatch.org/facts/nwd/JASON_ReportPuAging.pdf


NAVY MIND CONTROL

U.S. Navy research on "mind control techniques" cannot be performed on
human subjects without the authorization of the Under Secretary of
the Navy, according to a new Navy Instruction.

"The Under Secretary of the Navy (UNSECNAV) is the Approval Authority
for research involving ... severe or unusual intrusions, either
physical or psychological, on human subjects (such as
consciousness-altering drugs or mind-control techniques)."

The nature and scope of any such Navy research could not be
immediately discovered.

See "Human Research Protection Program," Secretary of the Navy
Instruction 3900.39D, November 6, 2006 [at section 7(a)(2), page 9]:

http://www.fas.org/irp/doddir/navy/secnavinst/3900_39d.pdf


OTHER ODDS AND ENDS

U.S. Air Force policy on "information operations" -- which includes
electronic warfare, psychological operations, military deception,
counter-propaganda and more -- is described in a recently updated Air
Force Policy Document.

See "Information Operations," AFPD 10-7, 6 September 2006 (revised 8
Oct 06):

http://www.fas.org/irp/doddir/usaf/afpd10-7.pdf

The apparent involvement of the North Korean government in drug
trafficking and the implications of such activity for U.S. policy are
the subject of a newly updated report from the Congressional Research
Service (first reported by U.S. News and World Report).

See "Drug Trafficking and North Korea: Issues for U.S. Policy,"
updated November 27, 2006:

http://www.fas.org/sgp/crs/row/RL32167.pdf

Now that the 109th Congress is drawing to a close, the Senate Select
Committee on Intelligence has belatedly issued a report summarizing
its activities during the 108th Congress (2003-2004). See, if you
care to, "Committee Activities," Senate Report 109-360, November 16:

http://www.fas.org/irp/congress/2006_rpt/srpt109-360.html

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 123
December 4, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** ODNI SURVEYS INTEL COMMUNITY EMPLOYEES
** DEMOCRATIC REPS TELL EPA TO SUSPEND CLOSURE OF LIBRARIES
** COURT ORDERS EXPEDITED HANDLING OF FOIA REQUEST ON LEAKS
** DOD UPDATES POLICY ON GAO INVESTIGATIONS
** FBIS VIEWS THE FUTURE OF SOVIET SPACE (1987)


ODNI SURVEYS INTEL COMMUNITY EMPLOYEES

The Office of the Director of National Intelligence is conducting an
annual survey of intelligence community employees to lay a
foundation for future reforms of personnel practices.

The survey asks IC employees to evaluate a range of issues from
workplace environment and job satisfaction ("How satisfied are you
with the policies and practices of your senior leaders?") to
attitudes towards other intelligence agencies ("How easy or
difficult is it for you to collaborate with members of the IC who
are outside your own IC agency?")

"The purpose for collecting this information is to study and report
attitudes and perceptions of the Intelligence Community workforce
regarding their work environments, with a focus on various
management policies and practices that affect them," according to
the survey form.

"The results will help your organization develop strategies to
improve the quality of that work environment -- one of the goals of
your senior leadership and the Director of National Intelligence."

Specifically, an official source indicated, the survey will support
alignment of the Intelligence Community with the DNI Strategic
Human Capital Plan, which envisions increased integration of U.S.
intelligence agencies (Secrecy News, 10/18/06). It is the second
such annual survey to be performed by the ODNI.

A copy of the survey was obtained by Secrecy News.

See "Intelligence Community Annual Employee Climate Survey," Office
of the Director of National Intelligence, November 2006:

http://www.fas.org/irp/news/2006/12/icsurvey.pdf


DEMOCRATIC REPS TELL EPA TO SUSPEND CLOSURE OF LIBRARIES

In what may be a harbinger of new rigor in Congressional oversight,
four Democratic members of Congress told the Environmental
Protection Agency to cease and desist from closing public document
libraries and dispersing or destroying their contents unless and
until EPA obtains specific approval from Congress.

Public interest groups including the Union of Concerned Scientists
and the American Library Association had expressed alarm over the
closure of EPA libraries and the reported destruction of documents.
EPA said that it was modernizing and digitizing its collections
and that no information has been destroyed.

"We request that you maintain the status quo of the libraries and
their materials while this issue is under investigation and review
by Congress," wrote Ranking Members Reps. Bart Gordon (D-TN), John
Dingell (D-MI), Henry A. Waxman (D-CA) and James Oberstar (D-MN) in
a November 30 letter to EPA Administrator Stephen Johnson.

http://www.fas.org/sgp/congress/2006/epa113006.pdf

"It is imperative that the valuable government information
maintained by EPA's libraries be preserved," the Congressmen wrote.


COURT ORDERS EXPEDITED HANDLING OF FOIA REQUEST ON LEAKS

A federal judge ordered the Central Intelligence Agency and the
National Security Agency to respond within 30 days to a Freedom of
Information Act request from reporter Joshua Gerstein for a copy of
records regarding unauthorized disclosures of classified
information ("leaks").

Gerstein, a reporter with the New York Sun, had requested all
"criminal referrals" regarding classified leaks filed since 2001;
all responses to such referrals from the Justice Department; damage
assessments of the unauthorized disclosures; and various other
related records.

The CIA and NSA had granted Gerstein's request for expedited
processing but then failed to produce any records for eight months.
Nor did they offer a justification for their dereliction.

Judge Maxine M. Chesney of the Northern District of California
therefore ordered the agencies "to produce all non-exempt records
and non-exempt portions of records that are responsive to
Gerstein's FOIA requests" within 30 days. See:

http://www.fas.org/sgp/jud/gerstein112906.pdf

In a separate ruling, Judge Chesney also ordered the Department of
Defense, the Department of Justice and the FBI to respond within 30
days to similar requests from Gerstein regarding leaks.

Neither order precludes agencies from invoking lawful exemptions to
the Freedom of Information Act and withholding documents
accordingly.

See "Reporter Wins A Court Battle With Government," New York Sun,
December 4:

http://www.nysun.com/article/44507


DOD UPDATES POLICY ON GAO INVESTIGATIONS

A newly updated Department of Defense Instruction sets forth
Pentagon policy on interactions with the Government Accountability
Office, the congressional investigative agency.

"It is DoD policy that the Department of Defense cooperate fully
with the GAO and respond constructively to, and take appropriate
corrective actions on the basis of, GAO reports," the new
Instruction says.

But DoD will also "be alert to identify errors of fact or erroneous
interpretation in GAO reports, and to articulate the DoD position
in such matters, as appropriate."

See "Government Accountability Office (GAO) Reviews and Reports,"
DoD Instruction 7650.02, November 20, 2006:

http://www.fas.org/irp/doddir/dod/i7650_02.pdf


FBIS VIEWS THE FUTURE OF SOVIET SPACE (1987)

"The USSR is publicly discussing an ambitious array of manned and
unmanned space missions ... planned over the next quarter
century," the CIA's Foreign Broadcast Information Service reported
in a 1987 internal assessment.

"Recent items in the Soviet press and scientific literature... have
provided new details on Soviet space plans from the present through
the end of this century," said the FBIS analysis, which was marked
"For Official Use Only."

The Soviet Union ceased to exist in 1991. FBIS was absorbed into
the DNI Open Source Center in 2004.

See "Soviet Space Missions Planned Through the Year 2000," Foreign
Broadcast Information Service Science and Technology Perspectives,
April 8, 1987 (4.5 MB PDF file, thanks to Allen Thomson):

http://www.fas.org/irp/cia/product/fbis-sovspace1987.pdf

Some other historical U.S. intelligence assessments of Soviet space
programs can be found here:

http://www.fas.org/irp/cia/product/index.html#sovsp

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 124
December 6, 2006

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

Support Secrecy News:
http://www.fas.org/static/contrib_sec.jsp


** PATENT SECRECY ORDERS LIFTED ON ROCKET PROPELLANTS
** GAO WARNS OF POSSIBLE UNIVERSITY EXPORT CONTROL VIOLATIONS
** SPECTER, LEAHY INTRODUCE BILL TO "RESTORE" HABEAS CORPUS
** AIR FORCE SPACE OPERATIONS, AND ORBITAL DEBRIS
** SOME RANDOM CRS REPORTS


PATENT SECRECY ORDERS LIFTED ON ROCKET PROPELLANTS

A Florida company called Space Propulsion Systems, Inc. announced
this week that it had successfully petitioned the U.S. Government
to lift secrecy orders that had been imposed on two of its rocket
propellant concepts.

Under the Invention Secrecy Act of 1951, the government may
restrict the publication and dissemination of information about
new inventions if their disclosure could be "detrimental to the
national security."

At the end of fiscal year 2006, there were 4942 invention secrecy
orders in effect, according to statistics obtained by Secrecy
News from the Patent and Trademark Office. There were 108 new
orders imposed in FY 2006, while 81 existing orders were
rescinded.

It is usually difficult if not impossible to identify patents and
patent applications that were subject to invention secrecy orders
which have been rescinded, though doing so would make an
interesting construct for a historical research project.

But in this case, the applicant identified itself.

"Space Propulsion Systems, Inc. is pleased to announce that the
Patent and Trademark Office of the Department of Commerce has
rescinded the Secrecy Orders that had been imposed with respect
to both its WREEM homogeneous propellant and the Supercritical
Fluids fabricated Micro Fuel Cell composite rocket propellant in
the light of guidance provided by U.S. defense agencies,"
according to a company news release.

"Although SPS intends to work with the US Government in any way
required to protect this technology, SPS believed that the
Company needed to develop this technology for the sake of the US,
the stockholders of SPS, and the Company. SPS therefore
requested our patent attorneys to petition the US Government to
rescind the Secrecy Orders on these products. It took over a
year, but SPS was finally successful in this effort."

http://www.fas.org/sgp/news/2006/12/sps120406.html

Copies of Secrecy Order forms of various types issued by the
Patent Office are available here (courtesy of Michael Ravnitzky):

http://www.fas.org/sgp/othergov/invention/orders.pdf

Some other background on invention secrecy may be found here:

http://www.fas.org/sgp/othergov/invention/index.html


GAO WARNS OF POSSIBLE UNIVERSITY EXPORT CONTROL VIOLATIONS

A new Government Accountability Office study warns darkly that the
Departments of State and Commerce are not doing enough to police
university research to ensure that export control violations are
not occurring on campus.

State and Commerce "have not fully assessed the potential for
transfers of export-controlled information to foreign nationals
in the course of U.S. university research," the GAO study said.
The study urged closer attention to available data on foreign
students at U.S. universities.

The negative tone of the report is somewhat surprising since the
GAO investigation did not identify a single export control
violation, nor did it discover any misinterpretation or
misapplication of existing law committed by university
researchers.

But the study may reopen a fierce debate that seemed to be nearly
settled regarding "deemed exports," referring to the transfer of
export-controlled information to foreign persons residing in the
United States. A strict interpretation of "deemed export"
controls could cause massive disruption of university research,
many academic scientists argued in the last two years. In May
2006, the Department of Commerce withdrew a proposed rule on the
subject in response to widespread academic criticism. (SN,
05/31/06).

Buried deep in the new report, the GAO did note the significant
fact that "government and industry contracting officials are
increasingly inserting restrictive language in contracts for
research that universities consider to be fundamental [including]
language that prohibits the contractor from releasing
information, even unclassified information, outside of the
contractor's organization." (Page 10).

Such pre-publication restrictions are obviously inconsistent with
the university environment. Regrettably, the GAO report did not
pursue this issue or recommend the more discriminating use of
disclosure restrictions by contracting agencies.

See "Export Controls: Agencies Should Assess Vulnerabilities and
Improve Guidance for Protecting Export-Controlled Information at
Universities," Government Accountability Office report GAO-07-70,
December 2006:

http://www.fas.org/sgp/gao/gao-07-70.pdf

See also a companion report on "Export Controls: Agencies Should
Assess Vulnerabilities and Improve Guidance for Protecting
Export-Controlled Information at Companies," Government
Accountability Office report GAO-07-69, December 2006:

http://www.fas.org/sgp/gao/gao-07-69.pdf


SPECTER, LEAHY INTRODUCE BILL TO "RESTORE" HABEAS CORPUS

In another sign of shifting ground in the post-election Congress,
Senators Arlen Specter and Patrick Leahy yesterday introduced the
"Habeas Corpus Restoration Act of 2006," which would reinstate
federal court jurisdiction over Guantanamo detainees and other
suspected enemy combatants.

The bill would repeal two provisions of the Military Commissions
Act of 2006 enacted in September that limit habeas corpus.
"Habeas corpus" refers to the ability of a detainee to seek
judicial review of his case.

"The Constitution of the United States is explicit that habeas
corpus may be suspended only in time of rebellion or invasion,"
observed Sen. Specter. "We are suffering neither of those
alternatives at the present time. We have not been invaded, and
there has not been a rebellion."

"This bill would restore the great writ of habeas corpus, a
cornerstone of American liberty for hundreds of years that
Congress and the President rolled back in an unprecedented and
unnecessary way with September's Military Commissions Act," said
Senator Leahy.

See the introduction of the Habeas Corpus Restoration Act here:

http://www.fas.org/irp/congress/2006_cr/s4081.html


AIR FORCE SPACE OPERATIONS, AND ORBITAL DEBRIS

U.S. Air Force doctrine on space operations is elaborated in a new
publication. See "Space Operations," Air Force Doctrine Document
AFDD 2-2, November 27, 2006:

http://www.fas.org/irp/doddir/usaf/afdd2_2.pdf

The threat posed by debris in Earth orbit is the subject of a
recent Master's Thesis, which provides a convenient introduction
to the subject and a review of recent literature. See "Orbital
Debris: Technical and Legal Issues and Solutions" by Michael W.
Taylor, Institute of Air and Space Law, McGill University,
Montreal, August 2006:

http://www.fas.org/spp/eprint/taylor.pdf


SOME RANDOM CRS REPORTS

Recent publications of the Congressional Research Service include
the following.

"Taiwan: Major U.S. Arms Sales Since 1990," updated November 9,
2006:

http://www.fas.org/sgp/crs/weapons/RL30957.pdf

"Panama: Political and Economic Conditions and U.S. Relations,"
updated November 16, 2006:

http://www.fas.org/sgp/crs/row/RL30981.pdf

"Thailand: Background and U.S. Relations," updated October 2,
2006:

http://www.fas.org/sgp/crs/row/RL32593.pdf

"Iraqi Police and Security Forces Casualty Estimates," November
16, 2006:

http://www.fas.org/sgp/crs/mideast/RS22532.pdf

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 125
December 8, 2006

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

"Special year-end opportunity to support Secrecy News!"
http://www.fas.org/static/contrib_sec.jsp


** THE TRAVAILS OF SEA-BASED MISSILE DEFENSE
** IMPLEMENTING THE 9/11 COMMISSION RECOMMENDATIONS, OR NOT
** EVEN MORE FROM CRS
** CORRECTIONS
** PUBLIC INTEREST DECLASS BOARD FALTERS


THE TRAVAILS OF SEA-BASED MISSILE DEFENSE

The flight test of a sea-based missile defense system in the Pacific
was aborted yesterday after an interceptor missile failed to launch
from an Aegis cruiser, the Pentagon's Missile Defense Agency said.

It was the latest setback in an ambitious sea-based missile defense
program that will cost more than one billion dollars in 2007.

"In developing a global ballistic missile defense (BMD) system, the
Department of Defense (DOD) currently is modifying 18 Navy cruisers
and destroyers for BMD operations, and has placed a large BMD radar
-- the Sea-Based X-Band Radar (SBX) -- on a modified floating oil
platform," according to a new report of the Congressional Research
Service.

But sea-based systems are still far from providing a satisfactory
resolution to the quest for a reliable missile defense.

The new CRS report (which does not fail to mention that Aegis "is
named after the mythological shield carried by Zeus") is a superb
presentation of the current state of sea-based missile defense.
Full of hard-to-find details, the 37 page document asks and begins
to answer a range of questions about the future of this program.

CRS does not release its reports to the public. A copy was obtained
by Secrecy News.

See "Sea-Based Missile Defense -- Background and Issues for
Congress," December 4, 2006:

http://www.fas.org/sgp/crs/weapons/RL33745.pdf


IMPLEMENTING THE 9/11 COMMISSION RECOMMENDATIONS, OR NOT

In a major new report that could serve as an appendix to the Final
Report of the 9/11 Commission, the Congressional Research Service
performed a detailed assessment of the implementation of the
Commission's recommendations.

"The discussions herein are organized on the basis of policy themes
that are at the core of the 9/11 Commission's recommendations,
rather than through a review of each numbered item set out in the
Commission's final report," the 73 page CRS report says.

"Each section of the report summarizes the pertinent elements of the
9/11 Commission's recommendation relevant to the section's policy
theme. Then a review is made of responses made by the Congress to
implement, in whole or in part, the given recommendation. Where
appropriate, notice is taken of Executive branch actions regarding
the policy matter."

A copy of the report was obtained by Secrecy News.

See "9/11 Commission Recommendations: Implementation Status,"
December 4, 2006:

http://www.fas.org/sgp/crs/homesec/RL33742.pdf


EVEN MORE FROM CRS

Some other noteworthy new products of the Congressional Research
Service that are not widely available to the public include the
following:

"Nuclear Fuel Reprocessing: U.S. Policy Development," November 29,
2006:

http://www.fas.org/sgp/crs/nuke/RS22542.pdf

"Homeland Security: Evolving Roles and Missions for United States
Northern Command," updated November 16, 2006:

http://www.fas.org/sgp/crs/homesec/RS21322.pdf

"U.S. Strategic Nuclear Forces: Background, Developments, and
Issues," updated October 17, 2006:

http://www.fas.org/sgp/crs/nuke/RL33640.pdf

"National Emergency Powers," updated November 13, 2006:

http://www.fas.org/sgp/crs/natsec/98-505.pdf

"Navy Littoral Combat Ship (LCS) Program: Oversight Issues and
Options for Congress," November 30, 2006:

http://www.fas.org/sgp/crs/weapons/RL33741.pdf

"The United States and Europe: Current Issues," updated November 21,
2006:

http://www.fas.org/sgp/crs/row/RS22163.pdf


CORRECTIONS

There were at least two errors in the December 4 issue of Secrecy
News.

We mistakenly wrote that the CIA and NSA agreed to reporter Joshua
Gerstein's request for expedited processing of his FOIA request on
records concerning unauthorized disclosures. They did not. But a
court granted his motion to compel a prompt response.

The DNI Open Source Center was established in November 2005, not in
2004.


PUBLIC INTEREST DECLASS BOARD FALTERS

The Public Interest Declassification Board was established by
Congress in 2000 "to promote the fullest possible public access to
a thorough, accurate, and reliable documentary record of
significant United States national security decisions." (FY 2001
Intelligence Authorization Act, Section 703).

Six years later, it has still done no such thing.

In its first practical test, members of Congress asked the Board to
review the classification of two recent reports on pre-war Iraq
intelligence to determine if more of the text could be disclosed.

But the Board concluded that it could not proceed without White
House approval, which was not forthcoming.

This week, reported Rebecca Carr of Cox News, the Board asked
Congress to modify its charter to make clear that White House
approval is not required for this purpose.

See "Anti-secrecy board unable to gain traction" by Rebecca Carr,
Cox News Service, December 8:

http://www.azstarnet.com/allheadlines/159482

The Board will hold its next meeting on December 15 at the National
Archives in Washington, DC.

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 126
December 12, 2006

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

"Special year-end opportunity to support Secrecy News!"
http://www.fas.org/static/contrib_sec.jsp


** ARMY DEFINES LEGITIMATE AND QUESTIONABLE INTEL ACTIVITIES
** NAVY GUIDE TO DETENTION FACILITIES
** ODDS AND ENDS FROM CRS
** INJECTING POLONIUM INTO HUMANS


ARMY DEFINES LEGITIMATE AND QUESTIONABLE INTEL ACTIVITIES

A recently updated U.S. Army regulation defines the parameters of
legitimate military intelligence activities and outlines procedures
for identifying "questionable" intelligence operations.

Among the permissible activities, for example, military intelligence
"may conduct nonconsensual physical surveillance of U.S. persons
who are-- military personnel on active duty status; present or
former intelligence component employees; present or former
intelligence component contractors and their present or former
employees; applicants for intelligence component employment or
contracting" and "persons in contact with those who fall into [the
above categories] to the extent necessary to identify the person in
contact" (sect. 9-2).

"Nothing in this procedure will be interpreted as authorizing the
collection of any information relating to a U.S. person solely
because of that person's lawful advocacy of measures opposed to
Government policy" (sect. 2-5).

However, "commonly reported questionable intelligence activities
[include] improper collection, retention, or dissemination of U.S.
person information [such as] gathering information about U.S.
domestic groups not connected with a foreign power or international
terrorism" (sect. 15-4).

Other "commonly reported questionable activities" include "searching
or monitoring a U.S. person's private internet account, under the
guise of determining if the individual was passing classified
information, without an authorized counterintelligence or law
enforcement investigation and proper search or electronic
surveillance authority."

Also considered "misconduct" is "coaching a source or subject of an
investigation prior to an intelligence polygraph examination in an
effort to help the individual pass the polygraph."

In one new provision, the regulation notes that intelligence
personnel must ordinarily use government computers for official
government business. But, it says, "if operational security so
requires, such as to protect a Government computer from hacker
retaliation, a ... commander may approve nonattributable internet
access" (sect. 1-9).

The 2005 regulation was released in its entirety this week in
response to a Freedom of Information Act request from Secrecy News.

See "U.S. Army Intelligence Activities," Army Regulation 381-10, 22
November 2005 (2.7 MB PDF):

http://www.fas.org/irp/doddir/army/ar381-10.pdf


NAVY GUIDE TO DETENTION FACILITIES

A new U.S. Navy instruction offers a "guide to the operation and
administration of detention facilities."

Detention means "the temporary holding of persons in custody in a
detention facility pending a decision to officially charge them
with a criminal offense. Detention is distinctly different from
confinement that includes pretrial or post-trial confinement."

See "Guide for the Operation and Administration of Detention
Facilities," OPNAV Instruction 1640.9A, December 11, 2006:

http://www.fas.org/irp/doddir/navy/opnavinst/1640_9a.pdf

Another new Navy instruction concerns information assurance.

See "Navy Implementation of Department of Defense Intelligence
Information System (DODIIS) Public Key Infrastructure (PKI)," OPNAV
Instruction 5239.3, November 27, 2006:

http://www.fas.org/irp/doddir/navy/opnavinst/5239_3.pdf


ODDS AND ENDS FROM CRS

A recent Congressional Research Service report observed
irregularities in government spending on military space.

"Tracking the DOD space budget is extremely difficult since space is
not identified as a separate line item in the DOD budget.
Additionally, DOD sometimes releases only partial information
(omitting funding for classified programs) or will suddenly release
without explanation new figures for prior years that are quite
different from what was previously reported."

See "U.S. Military Space Programs: An Overview of Appropriations and
Current Issues," updated August 7, 2006:

http://www.fas.org/sgp/crs/space/RL33601.pdf

Pending proposals to restructure Foreign Service personnel
compensation policy are described in "The Foreign Service and a New
Worldwide Compensation System," updated November 16, 2006:

http://www.fas.org/sgp/crs/misc/RL33721.pdf

U.S. economic sanctions that are currently imposed against North
Korea and the potential application of additional restrictions are
addressed in another recent CRS report, provided courtesy of the
National Committee on North Korea (www.ncnk.org). See "North
Korea: Economic Sanctions," updated October 17, 2006:

http://www.fas.org/sgp/crs/row/RL31696.pdf


INJECTING POLONIUM INTO HUMANS

The apparent murder of former Russian intelligence officer Alexander
Litvinenko through polonium poisoning seemed like an outlandish
innovation in crime. But it was not the first time that polonium
had been deliberately administered to human subjects.

In 1944 at the University of Rochester in New York, "tracer amounts
of radioactive polonium-210 were injected into four hospitalized
humans and ingested by a fifth," according to a 1995 retrospective
account.

Four men and one women who were already suffering from a variety of
cancers reportedly volunteered for the dangerous experiment. One
patient died from his cancer six days after the injection.

See "Polonium Human-Injection Experiments," Los Alamos Science,
Number 23, 1995:

http://www.fas.org/sgp/othergov/doe/lanl/p...00326640-po.pdf

That polonium article appeared as a sidebar in a larger paper called
"The Human Plutonium Injection Experiments" by William Moss and
Roger Eckhardt, which follows on the work of reporter Eileen
Welsome, builds on the declassification activities of Energy
Secretary Hazel O'Leary and complements the research of the
Advisory Committee on Human Radiation Experiments. See the Moss
and Eckhardt paper from Los Alamos Science here:

http://www.fas.org/sgp/othergov/doe/lanl/pubs/00326640.pdf

Polonium was classified in July 1945, the authors note, and given
the code name "postum."

The basic chemistry and physics of polonium were declassified in
1946. The fact that polonium-210 was used in nuclear weapon
initiators was declassified in 1967, according to a Department of
Energy historical account.

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

As reported in today's FAS Secrecy News:

INJECTING POLONIUM INTO HUMANS

The apparent murder of former Russian intelligence officer Alexander

Litvinenko through polonium poisoning seemed like an outlandish

innovation in crime. But it was not the first time that polonium

had been deliberately administered to human subjects.


In 1944 at the University of Rochester in New York, "tracer amounts

of radioactive polonium-210 were injected into four hospitalized

humans and ingested by a fifth," according to a 1995 retrospective

account.

Four men and one women who were already suffering from a variety of

cancers reportedly volunteered for the dangerous experiment. One

patient died from his cancer six days after the injection.


See "Polonium Human-Injection Experiments," Los Alamos Science,

Number 23, 1995:


http://www.fas.org/sgp/othergov/doe/lanl/p...00326640-po.pdf


That polonium article appeared as a sidebar in a larger paper called

"The Human Plutonium Injection Experiments" by William Moss and

Roger Eckhardt, which follows on the work of reporter Eileen

Welsome, builds on the declassification activities of Energy

Secretary Hazel O'Leary and complements the research of the

Advisory Committee on Human Radiation Experiments. See the Moss

and Eckhardt paper from Los Alamos Science here:


http://www.fas.org/sgp/othergov/doe/lanl/pubs/00326640.pdf

Polonium was classified in July 1945, the authors note, and given

the code name "postum."

The basic chemistry and physics of polonium were declassified in

1946. The fact that polonium-210 was used in nuclear weapon

initiators was declassified in 1967, according to a Department of

Energy historical account.

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 127
December 14, 2006

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

"Special year-end opportunity to support Secrecy News!"
http://www.fas.org/static/contrib_sec.jsp


** GOVT SUBPOENAS ACLU TO RECOVER CLASSIFIED DOCUMENT
** CRS ON RELIABLE REPLACEMENT WARHEAD, AND MORE
** POLONIUM AND THE HISTORY OF SPACE NUCLEAR POWER
** JASON ON ENGINEERING MICROORGANISMS FOR ENERGY PRODUCTION


GOVT SUBPOENAS ACLU TO RECOVER CLASSIFIED DOCUMENT

Government attorneys reached deep into their legal bag of tricks
to devise a subpoena against the American Civil Liberties Union
demanding "any and all copies" of a classified document that was
leaked to the ACLU in October.

Questioned by an ACLU attorney as to the authority for this
demand, a government attorney cited the espionage statutes in 18
USC 793 and 798.

Such an action is unprecedented, the ACLU said in a motion to
quash the subpoena, and it is also an improper use of subpoena
authority.

If successful, this tactic could be used to confiscate classified
documents from news organizations, effectively imposing prior
restraint on publication and curtailing freedom of the press.

"No official secrets act has yet been enacted into law, and the
grand jury's subpoena power cannot be employed to create one,"
the ACLU said. See its motion to quash here:

http://www.aclu.org/images/asset_upload_file251_27648.pdf

The subpoena against the ACLU is the latest in a series of new
government efforts to tighten controls on classified information
and to punish those who disclose such information.

A recent issue of The News Media & The Law, published by the
Reporters Committee for Freedom of the Press, focuses on
"Journalists and the Espionage Act" and provides updates on
several ongoing cases and controversies. See:

http://www.rcfp.org/news/mag/30-4/_contents.html


CRS ON RELIABLE REPLACEMENT WARHEAD, AND MORE

In considering the future of the U.S. nuclear weapons stockpile,
the government must decide between two basic courses of action,
explains a new report from the Congressional Research Service:
either it must seek to extend the functional lifetime of
existing nuclear weapons, or it must develop a new generation of
warheads.

The CRS report compares and contrasts the pros and cons of these
two options.

Another potential option, abolition of nuclear weapons, is not
considered by the CRS, since "it has garnered no support in
Congress or the Administration."

The CRS does not make its products directly available to the
public. A copy of the new report was obtained by Secrecy News.

See "Nuclear Warheads: The Reliable Replacement Warhead Program
and the Life Extension Program," December 13, 2006:

http://www.fas.org/sgp/crs/nuke/RL33748.pdf

Some other notable recent reports from the CRS include the
following.

"The Military Commissions Act of 2006: Analysis of Procedural
Rules and Comparison with Previous DOD Rules and the Uniform
Code of Military Justice," October 12, 2006:

http://www.fas.org/sgp/crs/natsec/RL33688.pdf

"FY2007 Appropriations for State and Local Homeland Security,"
updated October 6, 2006:

http://www.fas.org/sgp/crs/homesec/RS22383.pdf

"Civil Reserve Air Fleet (CRAF)," October 18, 2006:

http://www.fas.org/sgp/crs/weapons/RL33692.pdf

"Uganda: Current Conditions and the Crisis in North Uganda,"
October 20, 2006:

http://www.fas.org/sgp/crs/row/RL33701.pdf


POLONIUM AND THE HISTORY OF SPACE NUCLEAR POWER

When the New York Times mentioned in passing recently that
polonium-210 had once been used to power U.S. spacecraft, it
caused a furrowing of the brow among the seven or so people who
dwell on the history of space nuclear power, since it is almost
certainly not correct.

"President Eisenhower, eager to promote 'atoms for peace,' had
the high heats of polonium 210 turned into electricity for
satellites," wrote the estimable William J. Broad in a recent
Times Week in Review piece ("Polonium, $22.50 Plus Tax,"
December 3). "But the batteries lost power relatively fast
because of the material's short half-life, just 138 days. The
United States made few such spacecraft."

Not so, according to Gary L. Bennett, who devoted much of his
career at the Department of Energy and NASA to the development
of space nuclear power sources.

"As far as I know, the U.S. never flew a spacecraft powered by
polonium-210," Dr. Bennett told Secrecy News.

Dr. Bennett identified one documentary source that claimed
otherwise, a history of isotope production at the Mound
Laboratory in Ohio. It is consistent with the New York Times
account, but he said it too was in error.

That Mound history described the use of polonium in an early
radioisotope power supply called SNAP 3A:

"The first SNAP-3A, fueled with polonium-210, provided power to a
satellite radio transmitter. The use of satellites powered by
SNAP for global communication was first demonstrated under
President Eisenhower in 1961, at which time the President's
peace message was broadcast via a satellite containing a radio
transmitter powered by the SNAP-3A RTG." See (at page 4):

http://www.fas.org/nuke/space/mound.pdf

But all other historical accounts agree that the first SNAP-3A
was launched on June 29, 1961 (on the Transit 4A spacecraft),
after President Eisenhower had left office, and it was fueled
with plutonium-238, not polonium-210.

It is true that the SNAP-3A was originally designed with polonium
fuel, because of Atomic Energy Commission restrictions on
plutonium, according to a deeply researched official history of
space nuclear power prepared for the Department of Energy.

A photograph of President Eisenhower in the Oval Office
enthusiastically examining a polonium-fueled SNAP battery
appeared on the front page of the Washington Evening Star on
January 16, 1959. ("Nuclear critic Ralph Lapp complained that a
highly lethal item had been placed on the President's desk.")

But "the AEC eventually relaxed its policy and agreed to provide
the plutonium fuel and SNAP-3A, as a result, was converted from
polonium-210 to plutonium-238," the official history stated (at
page 23).

"Despite the president's enthusiasm [in January 1959], the first
RTG [radioisotope thermoelectric generator] flight came two and
a half years after the White House demonstration," the official
DOE history states (page 18).

It was the plutonium-fueled version that was launched into space
in June 1961, not the original polonium-fueled design.

See "Atomic Power in Space: A History," prepared for U.S.
Department of Energy, March 1987 (188 pages, 8.5 MB):

http://www.fas.org/nuke/space/history.pdf

Polonium-fueled radioisotope power or heater units were used on
spacecraft launched by the former Soviet Union on a number of
occasions, Dr. Bennett noted.


JASON ON ENGINEERING MICROORGANISMS FOR ENERGY PRODUCTION

A recent report from the secretive JASON scientific advisory
group considers the feasibility of using microorganisms to
produce fuels as a metabolic product, such as hydrogen or
ethanol.

"Microorganisms present a great opportunity for energy science,"
the JASON report to the Department of Energy said.

"Microorganisms are simpler than plants; they have smaller
genomes and proteomes, and are easier to manipulate and culture.
The enormous biodiversity of microorganisms presents a broad
palette of starting points for engineering. Microorganisms
already make many metabolic products, some of which are useful
fuels."

"Boosting the efficiency of fuel formation from microorganisms is
an important research challenge for the twenty first century."

The JASONs do not publish even their unclassified reports in an
orderly or consistent fashion. A copy of the new report was
obtained by Secrecy News.

See "Engineering Microorganisms for Energy Production,"
JSR-05-300, June 23, 2006 (92 pages, 1.1 MB):

http://www.fas.org/irp/agency/dod/jason/micro.pdf

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 128
December 15, 2006

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

"Special year-end opportunity to support Secrecy News!"
http://www.fas.org/static/contrib_sec.jsp


** ARMY COUNTERINSURGENCY DOCTRINE CHARTS A NEW COURSE
** DSB REPORT WARNS OF UNCERTAINTY IN U.S. NUCLEAR CAPABILITIES


ARMY COUNTERINSURGENCY DOCTRINE CHARTS A NEW COURSE

The U.S. Army has completed a long-awaited new manual presenting
military doctrine on counterinsurgency. It is the first revision
of counterinsurgency doctrine in twenty years.

In several respects, the new doctrine implicitly repudiates the
Bush Administration's approach to the war in Iraq.

"Conducting a successful counterinsurgency campaign requires a
flexible, adaptive force led by agile, well-informed, culturally
astute leaders," the foreword states.

The new manual emphasizes the importance of planning for
post-conflict stabilization, and it stresses the limited utility
of conventional military operations.

"The military forces that successfully defeat insurgencies are
usually those able to overcome their institutional inclination
to wage conventional war against insurgents."

A copy of the new 282 page unclassified manual was obtained by
Secrecy News.

See "Counterinsurgency," U.S. Army Field Manual 3-24, December 15,
2006 (12.9 MB PDF):

http://www.fas.org/irp/doddir/army/fm3-24.pdf


DSB REPORT WARNS OF UNCERTAINTY IN U.S. NUCLEAR CAPABILITIES

There is an urgent need to reach consensus on how to configure
the future U.S. nuclear weapons stockpile, says a new report
of the Defense Science Board (DSB).

"We are already late in addressing [stockpile] needs and the
current pace of progress in defining, approving, and
implementing the needed capabilities is not encouraging."

The sources of the present urgency, the DSB report says, are
several:

"We are behind on weapons surveillance, which is essential to
continuing confidence in the reliability, safety, and security
of weapons."

"We are behind on dismantling unneeded weapons which adds to
the security and safety concerns and burdens."

"We have an inadequately defined and funded capability for
replacement, over time, of aging weapons in the stockpile."

In short, according to the DSB, "The current nuclear organization,
management and programs do not provide for a nuclear weapons
enterprise capable of meeting the nation's minimum needs."

The DSB proposes a series of recommendations that it says would
help sustain the nuclear stockpile, transform the weapons
production complex, and instigate needed organizational changes.

See Report of the Defense Science Board Task Force on "Nuclear
Capabilities," unclassified Report Summary, December 2006:

http://www.fas.org/irp/agency/dod/dsb/nuclear.pdf

An analysis of the new report by Hans Kristensen of FAS may be
found on the Strategic Security blog here:

http://www.fas.org/blog/ssp/2006/12/us_nuc...at_a_crossr.php

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

SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 129
December 19, 2006

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

"Special year-end opportunity to support secrecy news!"
http://www.fas.org/static/contrib_sec.jsp


** FAS ASKS COURT TO COMPEL NRO COMPLIANCE WITH FOIA
** GOVT WITHDRAWS SUBPOENA AGAINST ACLU
** COUNTERINSURGENCY MANUAL FLIES OFF THE SHELF
** STRAY BITS FROM THE CONGRESSIONAL RESEARCH SERVICE
** THE GRANDEUR OF ERROR CORRECTION


FAS ASKS COURT TO COMPEL NRO COMPLIANCE WITH FOIA

The Federation of American Scientists yesterday asked a federal
court to enforce a court order directing the National
Reconnaissance Office (NRO) to process a Freedom of
Information Act request for unclassified budget information
after the NRO said it had "decided" not to do so.

In a July 24, 2006 order, D.C. District Judge Reggie B. Walton
rejected an NRO claim that the requested budget information
was an "operational" file that is exempt from the FOIA. He
ordered the agency to process the request.

On September 20, the NRO filed notice that it would appeal that
ruling.

Last month, the agency said that in light of the pending appeal
it had "decided not to produce the document(s) in question."

By law, however, the NRO is not entitled to make such a
decision. Rather, it must request and receive a stay of the
court order, which it failed to do.

In a December 18 motion in the case, Aftergood v. National
Reconnaissance Office, we asked Judge Walton to enforce his
July 24 order. See:

http://www.fas.org/sgp/foia/nro-cbjb/sa121806.pdf


GOVT WITHDRAWS SUBPOENA AGAINST ACLU

Last week it emerged that the Department of Justice had adopted
the unprecedented tactic of employing a subpoena in order to
recover copies of a classified document that had been provided
without authorization to the American Civil Liberties Union.

Yesterday, in a swift and somewhat farcical conclusion to the
controversy, the government withdrew the subpoena and
announced that the document had been declassified.

The use of a subpoena was not intended as a threat, a
government attorney wrote to the court, but was issued in
response to a "request" from the ACLU, so that the
organization would not have to voluntarily surrender the
document without "due process."

"The Government issued the subpoena based on [...] what it
believed to be the ACLU's request for a subpoena in lieu of
voluntarily returning the then-classified document."

See a copy of the withdrawal letter here:

http://www.fas.org/sgp/jud/doj-aclu121806.pdf

Further background is available in "Government Backs Down in
its Attempt to Seize 'Secret' Document," ACLU, December 18:

http://www.aclu.org/safefree/general/27727prs20061218.html

and "Prosecutors Drop A.C.L.U. Subpoena in Document Fight" by
Adam Liptak, New York Times, December 19:

http://www.nytimes.com/2006/12/19/us/19leak.html


COUNTERINSURGENCY MANUAL FLIES OFF THE SHELF

The new Army Field Manual on Counterinsurgency doctrine has
been downloaded from the Federation of American Scientists web
site at an extraordinary rate -- more than 250,000 times since
it was posted on Friday morning.

But unlike previous drafts of the document obtained by Secrecy
News, the new manual is no secret. It has been published and
actively disseminated by the Army.

"Why don't you also put up our press release announcing the
manual which can also be found on our web site?" inquired Col.
Steven A. Boylan of the Combined Arms Center at Fort
Leavenworth. That December 15 news release and the
accompanying manual can be found on the Fort Leavenworth web
site here:

http://www.leavenworth.army.mil/

Col. Boylan also objected to Secrecy News' statement that the
new counterinsurgency doctrine was at odds with current U.S.
policy in Iraq.

"This manual was in production for about two years and is not
and was not intended to counter any current or future policy
as you indicate in your article. This document is also not
specific to Iraq or Afghanistan. If you understand the basis
of doctrine, then you know that our doctrine is geared to be
used anywhere our Army might deploy."


STRAY BITS FROM THE CONGRESSIONAL RESEARCH SERVICE

"Bosnia and the European Union Military Force (EUFOR):
Post-NATO Peacekeeping," updated December 5, 2006:

http://www.fas.org/sgp/crs/row/RS21774.pdf

"Mad Cow Disease and U.S. Beef Trade," updated December 6,
2006:

http://www.fas.org/sgp/crs/misc/RS21709.pdf


THE GRANDEUR OF ERROR CORRECTION

On December 17 the New York Times published a correction of a
December 3 Times story which said that polonium-210 had been
used to power U.S. spacecraft after a December 14 Secrecy News
story showed that the claim was almost certainly incorrect:

"An article on Dec. 3 about the many uses of polonium 210
referred incorrectly to the radioactive material utilized in
early American satellites. While plans were drawn up to use
polonium 210 as a power source, and one federal document said
it was used, nuclear experts say that the government decided
instead to rely on plutonium 238; no American satellites ever
flew with polonium 210," the Times wrote.

The error was trivial but the correction was grand.

Some institutions and some government officials have an
aversion to admitting error, viewing it as a sign of weakness.
But admitting and correcting errors paradoxically enhances
credibility, not diminishes it. It makes it possible to
approximate the truth ever more closely.

An openness to admitting error is also essential to a vital
functioning democracy.

The president of the American Association for the Advancement
of Science, Gilbert S. Omenn, touched on this point recently
in a wide-ranging address published in Science Magazine:

"Science works best in a culture that welcomes challenges to
prevailing ideas and nurtures the potential of all of its
people. Scientific ways of thinking and of re-evaluating one's
views in light of new evidence help strengthen a democracy."

http://www.sciencemag.org/cgi/content/full/314/5806/1696

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

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/

"Special year-end opportunity to support Secrecy News!"
http://www.fas.org/static/contrib_sec.jsp


** NATIONAL RECONNAISSANCE OFFICE YIELDS TO FAS LAWSUIT
** AUTOMATIC DECLASSIFICATION DEADLINE LOOMS
** SECURITY CLEARANCES FOR "MERITORIOUS" FORMER CRIMINALS
** KEY FOREIGN AFFAIRS ISSUES FOR THE 110TH CONGRESS (CRS)
** COVERT ACTION AGAINST THE SOVIET UNION, 1969-70 (FRUS)


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:

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

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:

http://www.nytimes.com/2006/12/21/washingt...declassify.html

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:

http://www.fas.org/sgp/isoo/declass/index.html

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.


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:

http://www.sheldoncohen.com/publications/S...006_nas-33s.pdf

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:

http://www.nysun.com/article/45551

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:

http://www.fas.org/sgp/isoo/poi.pdf


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:

http://www.fas.org/sgp/crs/natsec/RL33760.pdf

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

http://www.fas.org/sgp/crs/terror/RL32917.pdf


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:

http://www.fas.org/irp/cia/product/frus1969.pdf

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:

http://www.state.gov/r/pa/ho/frus/nixon/xii/index.htm

A companion volume FRUS volume