SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 64
May 31, 2006

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

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ISOO URGED TO COMPEL VICE PRESIDENT TO REPORT ON SECRECY

The Information Security Oversight Office (ISOO) should exercise its authority to compel the Office of the Vice President to disclose how frequently it classifies and declassifies information, the Federation of American Scientists urged in a letter to ISOO Director J. William Leonard.

For the third year in a row, the Office of the Vice President (OVP) has failed to disclose such data, as all executive branch entities that handle classified information are required to do for publication in the ISOO annual report to the President (Secrecy News, 05/26/06).

But the OVP did not simply neglect to report the data, it declared that it had no obligation to do so.

OVP spokeswoman Lea Ann McBride told the Chicago Tribune last week: "This has been thoroughly reviewed and it's been determined that the reporting requirement does not apply to [the office of the vice president], which has both legislative and executive functions." ("Cheney Keeps Classification Activity Secret" by Mark Silva, Chicago Tribune, May 27.)

There is no basis for this claim that the OVP is exempt from reporting.

"Nothing in the executive order excuses the OVP from reporting on classification activity in the performance of its executive duties merely because it also has separate legislative functions," I wrote in a May 30 FAS letter to ISOO.

"Since the OVP has publicly staked out a position that openly defies the plain language of the executive order, I believe ISOO now has a responsibility to clarify the matter. Otherwise, every agency will feel free to re-interpret the order in idiosyncratic and self-serving ways."

FAS asked ISOO either to directly compel the OVP to comply with the executive order under threat of sanction, or else to formally request a determination from the Attorney General on the applicability of the executive order to the OVP.

"I recognize that the OVP's classification activity is quantitatively small, by comparison with other executive branch elements, and that it could easily be overlooked without much detriment to the aggregate statistical reporting by ISOO," our letter stated.

"But by casting its non-compliance as a matter of principle, the OVP has mounted a challenge to the integrity of classification oversight and to the authority of the executive order. In my opinion, it is a challenge that should not go unanswered," I wrote. See:

"You raise some valid points," wrote ISOO Director Leonard in an initial email response on May 30. "I will pursue."

"DEEMED EXPORTS": COMMERCE DEPARTMENT RETREATS

In a victory for academic researchers, the Department of Commerce announced the withdrawal of a controversial rulemaking notice on so-called "deemed exports" that would have imposed new restrictions on access to information and technology by foreign-born scientists.

A "deemed export" has taken place when a foreign national who is working in the United States gains access to technology or information that is export controlled.

The 2005 Commerce rulemaking notice had triggered an outpouring of anxiety in academia and among scientists who said the Commerce proposal would complicate or render impossible many common interactions with foreign-born students as well as foreign collaborators. (See "Controls on 'Deemed Exports' May Threaten Research," Secrecy News, 05/02/2005).

In response to hundreds of comments received, the Commerce Department's Bureau of Industry and Security (BIS) abandoned key features of its proposal, including a surprising provision that access restrictions should be based on an individual's country of birth rather than on his current citizenship.

Along with withdrawal of the pending proposal, "BIS is establishing a Deemed Export Advisory Committee [that] will serve as forum to address complex questions related to an evolving deemed export control policy."

The policy shift was described in a Federal Register notice published today.

"While the deemed export rule plays a crucial role in preventing foreign nationals from countries of concern from obtaining controlled U.S. technology, BIS also recognizes that export controls must take into account the integral and critical contribution of foreign nationals to U.S. fundamental research," the Federal Register notice stated.

"U.S. research institutions play a vital role in advancing science and technology for future generations. Part of the vitality of the research enterprise is the contribution made by foreign national students, faculty, and visiting scientists."

HOUSE MOVES TO LIMIT "SENSITIVE SECURITY INFORMATION"

The scope of the "sensitive security information" (SSI) control category that prevents disclosure of certain kinds of transportation security-related information would be significantly curtailed by the House version of the 2007 Department of Homeland Security Appropriations Act.

The House bill would mandate automatic disclosure of SSI when it becomes three years old if it is not part of an active security plan and unless a written determination is made by the Secretary that it must be withheld.

It would also require DHS to revise its written policy on SSI to provide common representative examples of what constitutes SSI, and it would make it easier for parties in litigation to gain access to SSI. See the SSI provision in the 2007 Homeland Security Appropriations bill, which awaits final action on the House floor, here:

The White House denounced the House measure.

"The Administration strongly opposes Section 525 [the SSI provision], which would jeopardize an important program that protects Sensitive Security Information (SSI) from public release by deeming it automatically releasable in three years...," according to a May 25 Statement of Administration Policy.

"This provision would require the Secretary to undertake an ongoing, burdensome review process to protect this secure sensitive information that would otherwise remain appropriately protected by regulation," the White House said. See (at page 4):

And see, relatedly, "Homeland Security Department: FY2007 Appropriations," Congressional Research Service, May 10, 2006:

SOME NOTABLE DECLASSIFICATIONS

The National Security Archive announced the publication of a large collection of Henry Kissinger's Memoranda of Conversation (memcons), a detailed and candid record of his diplomatic contacts with world leaders from 1969 to 1977, edited by the Archive's William Burr. See:

An FBI account of "Bacteriological Warfare in the United States" was published by TheMemoryHole.org. It contains a description of a "previously unknown simulated BW attack on the Pentagon" [circa 1950], notes Michael Ravnitzky, who obtained the document. See:

The second and final installment of declassified National Security Agency records on Vietnam and the Tonkin Gulf Incident was published yesterday on the NSA web site. See:

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

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