from the FAS Project on Government Secrecy
Volume 2009, Issue No. 11
February 2, 2009

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Attorney General-nominee Eric H. Holder, Jr. said that, if confirmed, he will review current litigation in which the Bush Administration has asserted the state secrets privilege and that he will seek to minimize the use of the privilege.

"I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations," Mr. Holder wrote in response to pre-confirmation questions for the record from Sen. Russ Feingold.

He also affirmed a general commitment to open government.

"I firmly believe that transparency is a key to good government. Openness allows the public to have faith that its government obeys the law," Mr. Holder told Sen. Feingold.

More particularly, he said he favored maximum public disclosure of Office of Legal Counsel opinions.

"Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC's policies relating to publication of its opinions with the goal of making its opinions available to the maximum extent consistent with sound practice and competing concerns," Mr. Holder wrote.

See his answers to written questions from Senator Feingold:

Last week, the ACLU called upon the Justice Department to release OLC opinions concerning Bush Administration policies on surveillance, detention, and interrogation.

"Releasing the memos would ... signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive's lawless conduct," the ACLU wrote.

The news organization Pro Publica has prepared a database of pertinent OLC opinions from the Bush Administration. See "The Missing Memos" by Dan Nguyen and Christopher Weaver, January 28.


In a January 21 memorandum, President Obama directed the Chief Technology Officer to coordinate the development of an Open Government Directive that would implement the Administration's principles of transparency.

But there is no Chief Technology Officer (CTO), so far.

And there are fundamental questions about the nature, role, authority, budget, and status of such a position that remain to be answered. Many of the uncertainties involved are usefully delineated in a new report from the Congressional Research Service.

Up to now, the CRS report said, it is unknown "where a CTO would be located organizationally; whether a CTO would be a single position or supported by a staff, office, or agency; and how the duties and authorities of a CTO would be aligned and integrated with existing offices and agencies charged with similar responsibilities."

Further, "The President has not indicated whether he intends to establish a CTO position by executive order or other administrative process, or whether he will seek legislation."

Even more fundamentally, "What would be the scope of duties and authorities given to this position?"

Finally, the CRS astutely observed, "while the duties envisioned for a CTO may affect President Obama's choice for the appointment, the attributes of the person appointed to serve as CTO may, in part, define the role of CTO."

See "A Federal Chief Technology Officer in the Obama Administration: Options and Issues for Consideration," January 21, 2009.


A new report from the Congressional Research Service provides an extensive overview of the U.S. war in Afghanistan, and the choices that confront U.S. policy makers.

"The U.S. Government faces key strategic and operational decisions about its further engagement in the war in Afghanistan. These may include clarifying U.S. national interests in Afghanistan and the region; defining clear strategic objectives based on those interests; determining which diplomatic, economic, and military approaches to adopt, and what resources to commit to support those approaches; prioritizing 'Afghanistan' versus other national security imperatives; and helping marshal a coordinated application of international efforts."

See "War in Afghanistan: Strategy, Military Operations, and Issues for Congress," January 23, 2009.

Other noteworthy new reports from the Congressional Research Service include the following.

"Homeland Security Intelligence: Perceptions, Statutory Definitions, and Approaches," updated January 14, 2009.

"Israel and Hamas: Conflict in Gaza (2008-2009)," January 15, 2009.

"Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments," updated January 28, 2009.

"The Special Inspector General (SIG) for the Troubled Assets Relief Program (TARP)," January 14, 2009.

"Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009," January 6, 2009.


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

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