SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 66
June 28, 2007

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

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FOCUS OF VP INQUIRY SHIFTS TO ATTORNEY GENERAL

Congressional leaders who are investigating the refusal of Vice President Cheney to comply with executive branch procedures for oversight of classification and declassification activity yesterday asked Attorney General Alberto Gonzales to account for his sluggish handling of the issue.

Last January, J. William Leonard, the director of the Information Security Oversight Office (ISOO), asked the Attorney General to determine whether the Office of the Vice President is subject to reporting requirements like other executive branch agencies, or not.

A reply is not optional. The executive order states clearly that "The Attorney General, upon request..., shall render an interpretation of this order with respect to any question arising in the course of its administration" (sec. 6.2b).

Yet no such reply has been forthcoming.

"Due to conflicting statements from your department, the status of your review of this matter is unclear," wrote Reps. Henry Waxman, John Conyers Jr., and William Lacy Clay in their letter to the Attorney General. "More than six months (sic) have passed since Mr. Leonard's letter to you, and the Information Security Oversight Office has received no response to its inquiry."

The House letter asked Attorney General Gonzales to reply to a series of questions regarding his review of the Vice President's status as a classifier.

The Congressmen cited a Justice Department Office of Legal Counsel reply to a Freedom of Information Act request from the Federation of American Scientists (first reported by Michael Isikoff in Newsweek this week) indicating that "no documents" had been generated in response to the ISOO inquiry.

On the Senate floor yesterday, Sen. Patrick Leahy extolled the FAS request as a example of the utility of the Freedom of Information Act.

"Just this week, we witnessed the great value of FOIA in shedding light on a controversial policy within the Office of the Vice President regarding the handling of classified information, with news reports that a FOIA request to the Justice Department first revealed that the Attorney General may have delayed a review into the legality of this troubling policy," Sen. Leahy said in a June 27 statement on the status of the Open Government Act, which has been held up by opposition from a Republican Senator.

In a June 25 letter, Sen. Dick Durbin asked the Vice President to comply with the requirements of the Executive Order "so that we will not be compelled to take corrective action in our appropriations bill."

ADDINGTON AND THE QUESTION OF INTENT

Vice Presidential Chief of Staff David Addington defended Dick Cheney's refusal to submit to oversight by the Information Security Oversight Office in a June 26 letter to Sen. John Kerry.

"The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes it clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies'," he wrote.

Mr. Addington's claim is demonstrably false.

By presidential order dated October 13, 1995, the President delegated original classification authority to the Vice President under Executive Order 12958, along with other officials in the executive office of the President and various agency heads.

When the executive order was amended in 2003, that delegation of classification authority to the Vice President was not rescinded or modified. It remains in effect. Consequently, the Vice President's authority is comparable to that of the Secretary of Defense or the Secretary of State.

Furthermore, as ISOO director J. William Leonard explained in his January 9, 2007 letter to the Attorney General, a "plain text reading" of the order indicates that the Office of the Vice President is subject to the order's requirements. He noted that the OVP is granted one particular exemption, concerning the order's mandatory declassification review provisions.

"This sole explicit reference for the purpose of exempting the OVP from a provision of the Order supports an interpretation that the rest of the Order does apply.... otherwise there would be no need for an exemption," Mr. Leonard flawlessly argued.

By contrast, reported Michael Abramowitz in the Washington Post (June 27), "Addington did not cite specific language in the executive order supporting [his] view, and a Cheney spokeswoman could not point to such language last night. But spokeswoman Lee Anne McBride said the intent of the order, as expressed by White House officials in recent days, was 'not for the VP to be separated from the president on this reporting requirement'."

The President could amend the executive order at a moment's notice to exempt the Vice President from oversight. Or the Attorney General could render an interpretation of the order that favors the Vice President's position. But neither action has been taken.

Instead, the White House simply insists that the executive order does not mean what a "plain text reading" says that it means. By doing so, it degrades the machinery of government.

DNI MANDATES INTELLIGENCE ROTATIONS

The Director of National Intelligence has issued policy guidance that encourages and directs temporary assignments for intelligence officials in more than one element of the intelligence bureaucracy as a prerequisite for promotion to senior leadership positions.

The idea is that such rotations would increase cohesion within the intelligence community, improve cooperation, and enhance a sense of shared purpose.

"Joint Duty assignments further the interests of each IC element and the Community as a whole, promote the effectiveness of the U.S. Government, and provide future IC leaders with a broader perspective on the issues facing the Community," according to the new Instructions.

See "Intelligence Community Civilian Joint Duty Program Implementing Instructions," Intelligence Community Policy Guidance (ICPG) 601.01, June 25, 2007:

Skeptics question the feasibility of this approach.

"Contrary to the intention of such a program, there are really only three types of people who pursue rotations: those who are in a job they hate; those who work for a boss they hate, and those who are encouraged by their boss to find another job," wrote former intelligence officer Michael Tanji.

"Those who might actually want to expand their knowledge of the community and prepare themselves for positions of greater responsibility are usually thwarted by their management: Anyone worth a darn is kept close to the vest."

See "Old Wine in New Bottles," The SPOT Report, Washington Examiner, June 27:

SENSITIVE INFORMATION AT TSA

The Transportation Security Agency last week circulated a notice to Federal Air Marshals regarding protection of sensitive data. A copy was obtained by Secrecy News.

The notice focuses on Sensitive Security Information (SSI) and so-called Sensitive Personally Identifiable Information (PII).

SSI is transportation security-related information that is exempt from disclosure.

Sensitive PII includes social security numbers, drivers license numbers and similar data.

The proliferation of new categories and new acronyms for restricting disclosure of information is not helpful, said P. Jeffrey Black, who is himself a Federal Air Marshal and a whistleblower.

"Employee personal identification information is protected under the Privacy Act. There is no reason to come up with yet another acronymed classification for something that is already protected by Act of Congress," Mr. Black said in response to an inquiry from Secrecy News.

JOINT INTELLIGENCE DOCTRINE

A new publication from the Joint Chiefs of Staff presents "fundamental principles and guidance for intelligence support to joint operations."

The document provides an overview of the various intelligence-related disciplines, from imagery to interrogation, and their employment in support of military operations.

See "Joint Intelligence," Joint Publication 2-0, 22 June 2007:

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

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