SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 46
May 15, 2008

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CYBER SECURITY INITIATIVE IS TOO SECRET, SASC SAYS

The new National Cyber Security Initiative that is intended to reduce the vulnerability of government information networks and to devise an information warfare doctrine is so highly classified that it is undermining the deterrent value of the project, the Senate Armed Services Committee (SASC) said in a new report.

"It is difficult to conceive how the United States could promulgate a meaningful [information warfare] deterrence doctrine if every aspect of our capabilities and operational concepts is classified," the Senate report said.

During the cold war, "deterrence was not possible without letting friends and adversaries alike know what capabilities we possessed and the price that adversaries would pay in a real conflict. Some analogous level of disclosure is necessary in the cyber domain."

(Or, as Dr. Strangelove put it 40 years ago, "The whole point of a Doomsday Machine is lost if you keep it a secret!")

As things stand, the Senate report said, "virtually everything about the [cyber security] initiative is highly classified, and most of the information that is not classified is categorized as 'For Official Use Only'."

"These restrictions preclude public education, awareness, and debate about the policy and legal issues, real or imagined, that the initiative poses in the areas of privacy and civil liberties."

"The committee strongly urges the administration to reconsider the necessity and wisdom of the blanket, indiscriminate classification levels established for the initiative."

The committee's remarks on the National Cyber Security Initiative were published in its report on the 2009 defense authorization act, excerpted here:

SASC REBUFFS PENTAGON SECRECY PROPOSALS

The Senate Armed Services Committee (SASC) rejected several legislative proposals submitted by the Department of Defense that would have increased the Department's secrecy authority.

One proposal would have granted the Defense Intelligence Agency an extension of its "operational files" exemption from the Freedom of Information Act, which expired at the end of 2007. Such an exemption would permit the agency to dismiss FOIA requests for certain types of intelligence records without searching or reviewing the records.

Another proposal would have created new criminal penalties for the unauthorized disclosure or possession of maps and other geospatial products that have been marked for Limited Distribution (LIMDIS).

"For several years, products bearing the LIMDIS caveat have wrongfully been offered for sale to the public through a variety of means from surplus stores to on-line auctions," the Pentagon said as justification for the proposal.

"Current protection efforts have been ineffective, at least in part, because of the lack of effective penalties for unauthorized possession, sale, and use."

A third proposal would have expanded the government's authority to withhold certain unclassified homeland security information from disclosure under the Freedom of Information Act.

The three proposals, all of which were excluded from the Senate Committee mark up of the 2009 defense authorization act, were presented earlier this year in the Pentagon's own draft of the authorization bill and were described in detail here:

DOD RELEASES DIRECTIVE ON INFORMATION OPERATIONS

A 2006 Department of Defense directive on Information Operations, which had previously been withheld as "For Official Use Only," was released last week in response to a Freedom of Information Act request from the Federation of American Scientists.

The directive, issued by the Under Secretary of Defense (Intelligence), assigns baseline responsibilities for the conduct of information operations, an umbrella term that includes electronic warfare, computer network operations, psychological operations, military deception, and operations security.

Among related capabilities, the directive cites "public affairs," the purpose of which is "to communicate military objectives, counter misinformation and disinformation, deter adversary actions, and maintain the trust and confidence of the U.S. population, as well as our friends and allies. Effective military operations shall be based on credibility and shall not focus on directing or manipulating U.S. public actions or opinion."

The New York Times reported on April 20 that the Pentagon had mobilized numerous former military officials, some with unacknowledged financial interests in Department programs, to help generate favorable news coverage of the Bush Administration's war policies. It is not clear (to me, at least) how this practice comports with the declared Pentagon policy on public affairs, i.e. whether it violates the policy, or implements it.

See "Information Operations," Department of Defense Directive O-3600.1, August 14, 2006:

OLC VIEWS THE OFFICE OF VICE PRESIDENT, 1955-2007

The Office of Legal Counsel (OLC) at the Department of Justice has been pondering the peculiar status of the Office of Vice President for decades, and has recently released a collection of more than a dozen OLC opinions regarding the Vice President, dating back to the Eisenhower Administration.

"The Vice President, of course, occupies a unique position under the Constitution. For some purposes, he is an officer of the Legislative Branch, and his status in the Executive Branch is not altogether clear," wrote William H. Rehnquist, the future Chief Justice, in a 1969 OLC opinion that foreshadowed a similar argument offered last year by Vice President Cheney.

"With regard to the Vice President there is even a constitutional question whether the President can direct him to abide by prescribed standards of conduct," asserted Antonin Scalia in a 1974 OLC opinion.

"The Vice Presidential Office is an independent constitutional office, and the Vice President is independently elected. Just as the President cannot remove the Vice President, it would seem he may not dictate his standards of conduct," the future Justice Scalia wrote.

The OLC opinions concerning the Vice President, which were previously provided to the House Judiciary and Oversight Committees, were released by OLC in response to a Freedom of Information Act request from the Federation of American Scientists. See:

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

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