SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2002, Issue No. 85
September 3, 2002

OMB TACKLES SENSITIVE BUT UNCLASSIFIED INFORMATION

The White House Office of Homeland Security has asked the Office of Management and Budget to develop new policy guidance on so-called "sensitive but unclassified" (SBU) information.

The intended purpose of the SBU category is to preserve confidentiality without formal classification, in such a way as to permit the sharing of such sensitive information with federal and local law enforcement or emergency response personnel who do not hold security clearances.

The scope of SBU information (also termed Sensitive Homeland Security Information) has not been described. Nor has the meaning of "sensitive" been defined, prompting concerns that it could function as a catch-all for whatever information the increasingly secretive executive branch does not want to release.

But Daniel J. Chenok, information policy specialist at the Office of Management and Budget, told advocates of public access to government information last week that the issue is straightforward.

Most agencies, he explained, already have procedures for handling what amounts to "sensitive but unclassified information" -- such as privacy data, law enforcement information, and the other assorted types of unclassified information that are exempt from the Freedom of Information Act -- but these procedures vary from agency to agency.

"The goal here is consistent treatment among the different agency practices," he said. Moreover, the pending OMB guidance will entail "no new statutory framework," he said. "We will work within the existing framework."

This is an encouraging message, insofar as the legal authority to withhold information from the public cannot be significantly augmented without resort to statutory changes.

But these are deep waters, and the complexity of existing government controls on unclassified information is not widely understood. In fact, it is questionable whether all of the overlapping directives can be reconciled without a new statutory framework.

There are at least a dozen distinct systems of unclassified information control, including various provisions implementing the International Traffic in Arms Regulation, the Export Administration Act, etc.

Counterintuitively, some of these provisions impose penalties for disclosure of unclassified information that are more severe than for disclosure of classified information.

"There are many impractical and unrealistic regulations and laws in effect to control [unclassified] information," observed former classification officer James J. Bagley in a 1993 paper published by the National Classification Management Society.

"Chaos... describes the situation concerning unclassified official information-- pure chaos," Mr. Bagley wrote.

See his "Understanding Controls on Unclassified Government Information," reposted with permission here:

The diversity of unclassified information that is already exempt from public disclosure can be seen from this list of several dozen statutory Freedom of Information Act exemptions:

Mr. Chernok of OMB said that the pending guidance on sensitive but unclassified information would be published for public comment prior to adoption, probably in a few months.

HERKEN'S BROTHERHOOD OF THE BOMB

Historian Gregg Herken has just authored an intriguing new political history of the nuclear age. His book "Brotherhood of the Bomb: The Tangled Lives and Loyalties of Robert Oppenheimer, Ernest Lawrence, and Edward Teller," revisits many of the milestones of nuclear history, newly informed by the latest declassified research.

A website for the book offers assorted background information, including a series of newly available documents that address the question "Was Oppenheimer a Communist?" To summarize a complex record crudely, Herken concludes that Oppenheimer probably was a Communist Party member early in his career, but probably was not a spy. See:

NEW RESOURCES ON POLISH, CZECH INTELLIGENCE

Newly reformed Eastern European intelligence services continue to develop in interesting ways, and with more publicity than might have been anticipated.

In June 2002, a significant reorganization of Polish intelligence services was enacted. The background to this action and its meaning were assessed by Polish journalist David M. Dastych in a new paper called "No Zero Option But a Shake Up: The Reform of the Polish Secret Services." That paper and related resources are available here:

The Czech Security Information Service recently published its 2001 annual report, providing a U.S. reader with an interesting parallax view of global security matters. A link to that new report, along with related background information on Czech intelligence, may be found here:

FOIA CASES ONLINE

Citations and summaries of all Freedom of Information Act judicial decisions for the past five years are now available online, thanks to the Department of Justice Office of Information and Privacy.

See the August 30 announcement, "Compilations of FOIA Decisions Now Reach Back Five Years," here:

SECRECY IN THE NEWS

"There is considerable danger to the intrusive leaks investigation the FBI is conducting of the 17 members of the Senate intelligence committee," argues the Washington Post in a September 3 editorial. See "The Danger of Leak Probes":

In a related story, the Washington Post reported erroneously on August 24 that "It is illegal to release classified information." While several categories of classified information are in fact protected by law from unauthorized disclosure, including the communications intelligence information that is the subject of the current leak probe, the Post assertion is not generally true of all classified information.

Former Energy Department intelligence official Notra Trulock and Commentary Magazine editor Gabriel Schoenfeld square off one more time concerning the Wen Ho Lee case in the letters column of the September 2002 Commentary Magazine:

DSS INSISTS THE THREAT IS NOT URGENT

In a somewhat alarming statement, the Pentagon's Defense Security Service (DSS) insisted that there is no cause for alarm.

"DSS has NOT issued urgent threat warnings!" the agency declared urgently in a peculiar August 29 release.

The statement was apparently issued to rebut an unauthorized or counterfeit alert that had circulated in the name of DSS.

While previous warnings remain in effect, DSS advised reassuringly, "This is in no way intended to issue a new and urgent warning concerning the anniversary of the 9/11 terrorist attacks." See:

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

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