SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 45
May 12, 2008

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

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WHITE HOUSE ISSUES POLICY ON "CONTROLLED UNCLASSIFIED INFO"

The White House last week issued a long-awaited policy on "controlled unclassified information" (CUI) that is intended to provide a uniform government-wide system for safeguarding unclassified information that is deemed sensitive.

The CUI framework is supposed to replace the numerous individual agency control markings -- "sensitive but unclassified," "for official use only," and over a hundred other designations -- and thereby to overcome barriers to information sharing within the government.

But the new policy will do nothing to restore public access to government records that have been improperly withheld.

Development of the CUI policy began with a December 16, 2005 memo from the President directing agencies to "standardize procedures for sensitive but unclassified information." Despite the passage of two and a half years, however, little progress has been made in defining the terms of the new policy.

It establishes a single CUI framework, with three graduated levels of sensitivity and security. But the definition of what information may qualify as CUI, which includes anything that "under law or policy" requires protection from unauthorized disclosure, is vague and expansive.

To put it another way, the CUI policy does not exclude anything that is currently controlled as Sensitive But Unclassified.

This is a disappointment in light of previous suggestions that wholesale disclosures of currently controlled unclassified information might ensue.

"The great majority of the information which is now controlled can be put in a simple unclassified, uncontrolled category, it seems to me," said Amb. Thomas McNamara, program manage of the ODNI Information Sharing Environment, in 2006 testimony before Congress (Secrecy News, 01/16/08).

But under the new Bush policy, "the great majority of the information" that Amb. McNamara said should be uncontrolled will remain controlled and unavailable to the public.

The CUI policy properly notes that the new policy does not modify the requirements of the Freedom of Information Act process: "CUI markings may inform but do not control the decision of whether to disclose or release the information to the public, such as in response to a request made pursuant to the Freedom of Information Act."

But despite the passage of years since the policy was proposed, many of the hard decisions involved have been deferred to the implementation phase.

Which, if any, of the more than 100 existing control categories will be canceled, rather than absorbed into the new CUI category? The new policy does not say. At what point, if any, does the CUI designation expire? There's no way to tell. What enforcement mechanisms are established to ensure compliance with the new policy? To be determined.

SSCI CALLS FOR INTEL CONTRACTOR ACCOUNTABILITY

New limitations and reporting requirements should be imposed on intelligence contractors, the Senate Select Committee on Intelligence said in its new report on the 2009 intelligence authorization act.

"Several provisions of the bill are aimed at reducing the overall use of contractors by the Intelligence Community. The Committee believes these provisions are necessary for financial and accountability purposes," the report said.

One provision, advanced by Sen. Dianne Feinstein with Sen. Feingold, "requires a one-time report to the congressional intelligence committees by the DNI describing the activities within the Intelligence Community that the DNI believes should only be conducted by governmental employees but that are being conducted by one or more contractors [and] an estimate of the number of contractors performing each such activity."

Another provision, also moved by Sen. Feinstein and other Democratic members, would "prohibit the Director of the Central Intelligence Agency from permitting a contractor or subcontractor of the CIA to carry out an interrogation of an individual and to require that all interrogations be carried out by employees."

Similar requirements were also adopted by the House Intelligence Committee last week.

The May 8 Senate report on the 2009 Intelligence Authorization Act, which includes many other significant intelligence policy provisions, is available here:

WANTED: OSC ANIMAL POX REPORT

In January 2008, the ODNI Open Source Center (OSC) published a report on "Recent Worldwide Research on Animal Pox Viruses" principally authored by Dr. Alfred D. Steinberg of the MITRE Corporation.

Secrecy News has been trying unsuccessfully to obtain a releasable copy of the document. A request to ODNI was forwarded to the Central Intelligence Agency, which manages the Open Source Center, months ago. CIA did not reply to the request. The MITRE Corporation has also been unresponsive, except for a courteous note from the author.

Readers who have ready access to the OSC report on animal pox viruses are invited to forward the unclassified document to me directly, preferably in soft copy. Confidentiality -- or, alternatively, an effusive public expression of gratitude -- is promised, as you prefer.

Copies of other OSC publications would also be welcome.

CONGRESS'S CONTEMPT POWER, AND MORE FROM CRS

Noteworthy new reports from the Congressional Research Service that have not been made publicly accessible online include the following.

"Defense: FY2009 Authorization and Appropriations," May 5, 2008:

"Second FY2008 Supplemental Appropriations for Military Operations, International Affairs, and Other Purposes," updated May 8, 2008:

"Director of National Intelligence Statutory Authorities: Status and Proposals," updated April 17, 2008:

"Congress's Contempt Power: Law, History, Practice, and Procedure," updated April 15, 2008:

"Navy LPD-17 Amphibious Ship Procurement: Background, Issues, and Options for Congress," May 6, 2008:

"U.S.-French Commercial Ties," updated April 7, 2008:

"Strategic Airlift Modernization: Analysis of C-5 Modernization and C-17 Acquisition Issues," updated April 15, 2008:

SECRET LAW HEARING FOLLOW-UP

A recent Senate hearing on the subject of "secret law" drew an appreciative review today from syndicated columnist and first amendment champion Nat Hentoff.

"So important was an April 30 hearing before the Senate Judiciary Subcommittee on the Constitution that it should have been on front pages around the country," he wrote.

"Titled 'Secret Law and the Threat to Democratic and Accountable Government' and chaired by Sen. Russ Feingold, Wisconsin Democrat. it focused on an issue ignored by the presidential contenders that has deeply weakened our rule of law." (Secrecy News, April 30).

See "Let the Sunshine In" by Nat Hentoff, via The Washington Times, May 12:

"It's a given in our democracy that laws should be a matter of public record," wrote Senator Feingold in a Los Angeles Times opinion piece. "But the law in this country includes not just statutes and regulations, which the public can readily access. It also includes binding legal interpretations made by courts and the executive branch. These interpretations are increasingly being withheld from the public and Congress."

See "Government in Secret," by Sen. Russ Feingold, May 8:

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

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