SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 120
November 27, 2006

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

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SOME NOTABLE CRS REPORTS

When new leadership takes control in the 110th Congress, the public may finally gain routine online access to finished products of the Congressional Research Service.

The prospects for adopting this simple change in disclosure policy are enhanced by the fact that such a move would not require Bush Administration concurrence.

For the time being, however, congressional policy prohibits direct public access to CRS reports.

Some notable new CRS reports obtained by Secrecy News that are not otherwise available online include the following.

"Intelligence Estimates: How Useful to Congress?", November 21, 2006:

"Iraqi Civilian Deaths Estimates," November 22, 2006:

"Televising Supreme Court and Other Federal Court Proceedings: Legislation and Issues," updated November 8, 2006:

"Anti-Terrorism Authority Under the Laws of the United Kingdom and the United States," September 7, 2006:

TACKLING SENSITIVE BUT UNCLASSIFIED INFORMATION

The proliferation of new restrictions on the disclosure of information that is designated "sensitive but unclassified" (SBU) has been the subject of much churning within the national security policy apparatus this year.

Last December, President Bush ordered the development of recommendations to standardize procedures for marking information as SBU. By some counts, there are more than one hundred different SBU-type categories used in executive branch agencies.

"The growing and non-standardized inventory of SBU designations and markings is a serious impediment to information sharing among agencies, between levels of government, and, as appropriate, with the private sector," according to a recent report to Congress.

The recommendations to reduce and standardize this hypertrophied tangle of restrictions were due last July. But the initial submission was deemed unsatisfactory and an interagency working group was sent back to the drawing board with a new deadline of January 2007.

The latest official word on the subject is contained in Chapter 10 of the "Information Sharing Environment Implementation Plan," published by the Office of the Director of National Intelligence, November 2006:

Extensive background on the challenges posed by SBU and the options for dealing with it can be found in a newly updated report on the subject from the Congressional Research Service. See "Sensitive But Unclassified Information and Other Controls: Policy and Options for Scientific and Technical Information," updated November 14, 2006:

A focused look at the handling and mishandling of SBU information within the Department of Justice was provided by the Government Accountability Office in a new report last week. See "Managing Sensitive Information: DOJ Needs a More Complete Staffing Strategy for Managing Classified Information and a Set of Internal Controls for Other Sensitive Information" [GAO-07-83], October 2006:

REVISITING THE STATE SECRETS PRIVILEGE

A new assessment of the "state secrets privilege" disputes the claim presented in several other recent critiques that government reliance on the privilege to curtail or terminate sensitive litigation has increased in recent years.

"I find that the Bush Administration does not differ qualitatively or quantitatively from its predecessors in its use of the privilege," concludes Robert M. Chesney in a forthcoming paper in the George Washington Law Review.

Along with a survey of the origins and the history of the state secrets privilege, the author, a law professor at Wake Forest University, challenges the contentions of legal scholars such as William Weaver and Louis Fisher who argue that there has been a distinct increase in use of the privilege.

In large part, the dispute reflects definitional differences regarding what constitutes a state secrets case, when the privilege is asserted, and how complete the available data are.

In a useful appendix to his paper, Prof. Chesney provides a tabulation of 89 opinions in which the state secrets privilege has been asserted since 1954. But these only include published opinions, a subset of the unknown total. And for technical reasons, he excludes some cases that have been previously cited as state secrets cases but includes others that have not been.

Fundamentally, he writes, "The reality is that we simply do not know, and have no way of finding out, just how frequently the privilege may have been asserted during any particular period."

After reviewing how the government has used privilege over the years, he concludes that "the pattern of implementation of the state secrets privilege does not depart significantly from its past usage."

Yet Prof. Chesney adds that "To say that the privilege has long been with us and has long been harsh is not to say, however, that it is desirable to continue with the status quo."

He considers the feasibility of enacting reforms to limit or modify the assertion of the privilege and finds reason to conclude that such reforms may be appropriate, particularly "where the legality of government conduct is itself in issue."

The abstract and a link to the full text of "State Secrets and the Limits of National Security Litigation" by Robert Chesney may be found here:

Professor Chesney blogs on national security law and policy at National Security Advisors:

"The state secrets privilege is too easy to abuse" wrote Louis Fisher in another new commentary for the Nieman Watchdog.

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

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