SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 94
October 3, 2005

CONGRESS PUSHES BACK ON "SENSITIVE SECURITY INFORMATION"

In a rare defense of public access to government information, Congress has instructed the Department of Homeland Security to clarify and tighten its procedures for generating so-called "sensitive security information" (SSI), to reduce subjective factors in marking documents as SSI, and to provide Congress with the titles of all documents that are so designated.

SSI refers generally to transportation security information that is exempt by law from public disclosure. It includes airport security plans, vulnerability assessments, and related airline security data, but also undefined "other" information that may be considered too sensitive for public release.

"Because of insufficient management controls, information that should be in the public domain may be unnecessarily withheld from public scrutiny," members of Congress wrote in the new conference report on the 2006 Homeland Security Appropriations Act.

The congressional conferees directed DHS to "promulgate guidance that includes common but extensive examples of SSI" so as to "eliminate judgment ... in the application of the SSI marking."

See the report language here:

SSI has been a source of controversy because it has been invoked in seemingly arbitrary ways to deflect public requests for information.

For examples of some SSI disputes and for further background, see my article "The Secrets of Flight" in Slate, November 18, 2004:

SSI is only one of several dozen types of controls on unclassified information, and not the most common. Because they are mostly informal and discretionary, such controls are also more susceptible to abuse than the comparatively rigorous classification system.

Lately, the Centers for Disease Control has been criticized for withholding data needed for flu vaccine production and for adopting aggressive controls on "sensitive but unclassified" information.

See "CDC locks up flu data" by Rebecca Carr, Cox News, in the Atlanta Journal-Constitution, October 3:

THE FRANKLIN/AIPAC CASE AND THE PRESS

The recent indictment of two former employees of the American Israel Public Affairs Committee (AIPAC) for mishandling classified information is an abrupt departure from established practice because it treats members of the public as if they were cleared government employees who are obliged to protect classified secrets.

For the same reason, it poses an extraordinary challenge to the ability of the press to report on national security affairs.

"Steve Rosen and Keith Weissman repeatedly sought and received sensitive information, both classified and unclassified, and then passed it on to others in order to advance their policy agenda and professional standing," said U.S. attorney Paul McNulty at a press conference announcing their indictment (along with former defense official Larry Franklin, who will reportedly plead guilty).

"But," writes Eli Lake in The New Republic, "if it's illegal for Rosen and Weissman to seek and receive 'classified information,' then many investigative journalists are also criminals."

"While most administrations have tried to crack down on leaks, they have almost always shied away from going after those who receive them--until now."

"At a time when a growing amount of information is being classified, the prosecution of Rosen and Weissman threatens to have a chilling effect--not on the ability of foreign agents to influence U.S. policy, but on the ability of the American public to understand it," writes Lake.

See "Low Clearance" by Eli J. Lake, The New Republic, October 10 (subscription required):

See also "Israeli lobby spy case suggests new push to keep leaks from reporters" by John Byrne, Raw Story, September 30:

SSCI MARKUP OF 2006 INTEL AUTHORIZATION ACT

The authority of the Director of National Intelligence over U.S. intelligence policy would be further consolidated under the 2006 intelligence authorization act as marked up by the Senate Select Committee on Intelligence.

Among other notable provisions, the new bill would assign authority to the DNI to manage access to human intelligence information (sec. 403), previously a function of the Director of Central Intelligence.

The bill would authorize defense intelligence officers to conduct intelligence "assessment contacts" within the United States without disclosing their own identity (sec. 431).

The bill would exempt "operational files" of the Defense Intelligence Agency from the Freedom of Information Act (sec. 434). Such an exemption was rejected by a less compliant Congress when it was first requested by DIA in 2000.

The 2006 intelligence authorization act, S. 1803, as marked up by the Senate Intelligence Committee, is available here:

COURT ORDERS RELEASE OF ABU GHRAIB IMAGES

In a decision full of ruminative commentary on the pitfalls of unchecked secrecy, a federal judge last week ruled that photographic images of abuses committed by American military personnel at Abu Ghraib prison in Iraq are not exempt from the Freedom of Information Act.

Judge Alvin K. Hellerstein decided in favor of the ACLU, which had sought the images, and against the Department of Defense, which opposed their release.

"Suppression of information is the surest way to cause its significance to grow and persist," the judge opined. "Clarity and openness are the best antidotes, either to dispel criticism if not merited or, if merited, to correct such errors as may be found."

"The fight to extend freedom has never been easy, and we are once again challenged, in Iraq and Afghanistan, by terrorists who engage in violence to intimidate our will and to force us to retreat. Our struggle to prevail must be without sacrificing the transparency and accountability of government and military officials. These are the values FOIA was intended to advance, and they are at the very heart of the values for which we fight in Afghanistan and Iraq."

The 50 page ruling includes discussions of the Glomar response (i.e. neither confirming nor denying the existence of requested information), the consequences of unwarranted secrecy, and the state of FOIA law. A copy of the decision, which is likely to be appealed, is posted here:

SELECTED CRS REPORTS

Some recent reports of the Congressional Research Service obtained by Secrecy News include the following:

"The Middle East Peace Talks," updated September 29, 2005:

"Air Force Aerial Refueling," updated September 19, 2005:

"Material Support of Terrorists and Foreign Terrorist Organizations: Expiring Amendments in Brief," August 16, 2005:

"Material Support of Terrorists and Foreign Terrorist Organizations: Sunset Amendments," August 11, 2005:

"Free Mail for Troops Overseas," July 22, 2005:

"Detainees at Guantanamo Bay," updated July 20, 2005:

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

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