from the FAS Project on Government Secrecy
Volume 2004, Issue No. 45
May 18, 2004


Questionable military regulations governing highly classified "special access programs" (SAPs) are being hastily rewritten as allegations surface that some SAPs may violate law or national policy.

According to one U.S. Army Regulation from 1998, special access controls may be applied to "An extremely sensitive activity requiring special protection from disclosure to prevent significant damage to national security or the reputation or interests of the United States."

See Army Regulation 380-381, 12 October 1998, section 1-4(6):

But concealing official government activities in order to prevent damage to "the reputation of the United States" is not a legitimate use of special access procedures. (By executive order, such procedures may be applied only to exceptionally vulnerable national security information.)

Last month, that Army Regulation was reissued without reference to potential damage to the "reputation of the United States" (and with numerous other modifications to strengthen oversight and for other purposes).

See the newly updated Army Regulation 380-381, 21 April 2004 (also available in html format at

Writing in The New Yorker magazine this week, Seymour Hersh reported that acts of torture committed against Iraqi prisoners originated in one Defense Department SAP that was established for the purpose of interrogating "high value" targets in the war on terrorism. The Pentagon and the CIA emphatically denied the story.

Special access programs entail secrecy and security measures that go beyond those of ordinary classified programs. These may include augmented background investigations, polygraph tests, program-specific non-disclosure agreements, etc.

The security procedures governing Pentagon special access programs are described in "Department of Defense Overprint to the National Industrial Security Program Operating Manual Supplement" (For Official Use Only), a copy of which was obtained by Secrecy News:


The Justice Department last week announced the establishment of the National Criminal Intelligence Sharing Plan, an effort to promote the sharing of intelligence information among federal, state, and local law enforcement agencies.

"The plan is the outcome of an unprecedented effort by law enforcement agencies, with the strong support of the Department of Justice, to strengthen the nation's security through better intelligence analysis and sharing," said Attorney General John Ashcroft.

See a Justice Department Fact Sheet on the new initiative here:

Although the scope of the Plan is more ambitious than previous efforts, it is not exactly unprecedented.

The Joint Intelligence Community Law Enforcement (JICLE) working group, led in part by the much-maligned Jamie Gorelick, ploughed much of the same ground in the 1990s.

See the Report to the Attorney General and the Director of Central Intelligence from the Joint Task Force on Intelligence and Law Enforcement, May 1995 (50 pages, 3.1 MB PDF file) here:


The Transportation Security Agency indicated today that it will expand its use of the control category "sensitive security information" (SSI) to further restrict public access to maritime and port security information.

See the TSA Notice in the Federal Register today:

By statute, TSA has unilateral authority to restrict information that it deems "detrimental" to security.

Concerns that TSA's use of SSI is having an adverse impact on government accountability were discussed in "Sensitive Security Information (SSI) and Transportation Security: Background and Controversies," Congressional Research Service, February 5, 2004:


In the last of the large, focused declassification initiatives of the 1990s, an Interagency Working Group last week announced the release of hundreds of thousands of pages of documents declassified under provisions of the Nazi War Crimes Disclosure Act of 1996. See:

In a stroke of legislative brilliance, the authors of the 1996 Act overcame the CIA's habitual secrecy regarding historical matters by modifying the DCI's authority to withhold such information.

Thus, records related to Nazi war crimes could not be automatically withheld just because they pertained to "intelligence sources and methods." Rather, source information could be withheld only if it "would clearly and demonstrably damage the national security interests of the United States," a much tougher and more sensible standard.

As a result, "We had unprecedented success at actually opening CIA files that ordinarily are never opened," said Steven Garfinkel, director of the Interagency Working Group.

Nearly 800 CIA "name files" have now been opened, Mr. Garfinkel noted, whereas in the past only one, on Lee Harvey Oswald, had ever been made available.


Attorney General John Ashcroft invoked the "state secrets privilege" again last week to prevent former FBI translator Sibel Edmonds from providing a deposition in a pending lawsuit related to the September 11 attacks.

See this May 14 filing by the Attorney General formally invoking the privilege:

Ms. Edmonds has previously said that she saw intelligence reports prior to September 11 indicating that al Qaida planned to fly hijacked aircraft into U.S. skyscrapers. The Justice Department has repeatedly intervened to prevent her from elaborating on her statements in court.

"Edmonds's story has been almost uniformly ignored in the U.S. daily press," wrote Jefferson Morley in the Washington Post, at the same time that it has been widely reported in foreign news media.

See "Sept. 11 Allegations Lost in Translation" by Jefferson Morley, Washington Post, April 8:


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

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