SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2003, Issue No. 22
March 13, 2003

BUSH DRAFT EXECUTIVE ORDER: RUNNING IN PLACE

The Bush Administration's new draft executive order on national security classification does not eliminate all constraints on official secrecy, as some had feared, but neither does it move beyond the parameters of the Cold War secrecy system into a truly twenty-first century information policy.

The new Bush draft would generally affirm the single most important achievement of the 1995 executive order 12958, which was its aggressive declassification regime for historically valuable documents that are 25 years old or older. The draft includes a provision for automatic declassification of 25 year old documents (Section 3.3) but would defer its effective date until December 31, 2006. (The looming April 17, 2003 automatic declassification deadline was the proximate cause for preparation of the new draft.)

The new draft order would also preserve the Interagency Security Classification Appeals Panel (ISCAP), which has proven to be an exceptionally powerful tool for correcting classification abuses by subjecting them to the scrutiny of an interagency review panel. The new order would blunt the ISCAP's effectiveness, however, by permitting the Director of Central Intelligence to reject Panel rulings unless he is overridden by the President. (Section 5.3)

The draft directs that "the unauthorized disclosure of foreign government information is presumed to cause damage to the national security" and such information would therefore be presumptively classified, which has not previously been the case. (Section 1.1 (c))

It would include the new category of "infrastructure" vulnerabilities as potentially classifiable information (Section 1.4(g)) and it would ease the reclassification of previously declassified information (Section 1.7(c)).

A copy of the draft executive order was obtained by Secrecy News and is posted here:

"It could be a lot worse," several officials spontaneously agreed. "Keep in mind that this is the Bush Administration we're talking about, it's post 9/11, and we're about to go to war," said one agency official. "It could be a hell of a lot worse."

It could also be a hell of a lot better.

The draft does not touch the roots of dysfunction in the classification system, which allow agencies to make extravagantly false classification claims. Strengthening and expanding the ISCAP review process, rather than curtailing it, might have been one way to improve the correction of classification errors and abuses.

More fundamentally, the draft order is a vestige of a Cold War information policy that is now obsolete and increasingly counterproductive. The draft, which could have been implemented without any problem thirty years ago, is simply oblivious to the implications of the information revolution of the past decade.

Not only do the authors fail to acknowledge the qualitative distinction between old-fashioned paper records and digital data, they do not know what Senator Richard Shelby has lately pointed out (SNews, Feb. 18): namely, that imposing a strict "need to know" standard of information control can diminish information's utility and must inevitably exclude many of those who could productively exploit it -- to the detriment of national security.

IN CONGRESS

Senator Patrick Leahy (D-VT) and several colleagues introduced legislation March 12 to narrow the "extraordinarily broad exemption" from the Freedom of Information Act that was hastily adopted in the Homeland Security Act last year. "The law that was enacted undermines Federal and State sunshine laws permitting the American people to know what their government is doing," according to Sen. Leahy, who said the new "Restore FOIA Act" would fix the problem. See:

Rep. Dennis Kucinich (D-OH) "used a rare House procedure known as a Resolution of Inquiry" to force the Bush Administration to provide Congress with a copy of the 12,000 page Iraqi declaration to the United Nations, Rep. Kucinich said in a press release. Members of Congress who sign a non-disclosure agreement (which Kucinich deliberately has not) will now be able to view the classified Iraqi document. See:

Former Senator Slade Gorton (R-WA), like several others who were appointed to the new Commission to investigate September 11, has still not obtained the security clearance he needs in order to review classified documents. As a result, "the panel is at a standstill," the Seattle Times reported yesterday. From another point of view, however, the panel is learning first-hand just how broken the security clearance apparatus is. See "Gorton still hasn't received security clearance" by Alex Fryer, Seattle Times, March 12:

CRS ON TIA

The rather complex legal framework that would govern programs such as the Total Information Awareness data-mining initiative is helpfully described in a Congressional Research Service report entitled "Privacy: Total Information Awareness Programs and Related Information Access, Collection, and Protection Laws" by Gina Marie Stevens, updated February 14, 2003:

WITTGENSTEIN FOR THE DEFENSE

U.S. District Judge Michael B. Mukasey ruled again this week that suspected "dirty bomber" Jose Padilla shall be granted access to an attorney, and he invoked philosopher Ludwig Wittgenstein (1889-1951) to explain a defect in the Justice Department's argument to the contrary.

"The government's argument summons from obscurity an abstruse problem -- that because no rule can determine its own application, it may appear that there can be no binding rule -- that was picked apart on the philosophical dissecting table toward the middle of the last century by Ludwig Wittgenstein, and since has ceased to vex those inclined to contemplate such matters," Judge Mukasey wrote.

"[T]here is a way of grasping a rule that is not an interpretation," Judge Mukasey quoted Wittgenstein, triumphantly and with thrilling erudition.

The text of Judge Mukasey's March 11 ruling in Jose Padilla v. Donald Rumsfeld is here (see footnote 5):

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

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