SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 43
May 11, 2009

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

COURT REBUFFS FBI CENSORSHIP OF MANUSCRIPT

A federal court last week rejected most of the objections raised by the Federal Bureau of Investigation to publication of a 500-page manuscript critical of the FBI counterterrorism program that was written by retired FBI Special Agent Robert G. Wright. The manuscript had been submitted for pre-publication review in October 2001.

"This is a sad and discouraging tale," wrote Judge Gladys Kessler in a May 6 order, referring to the FBI's handling of the manuscript.

"In its efforts to suppress this information, the FBI repeatedly changed its position, presented formalistic objections to release of various portions of the documents in question, admitted finally that much of the material it sought to suppress was in fact in the public domain and had been all along, and now concedes that several of the reasons it originally offered for censorship no longer have any validity," Judge Kessler observed.

The 41-page, partially redacted court ruling reviewed the facts of the pre-publication review dispute as well as the legal standards for official censorship of such materials, and dismissed all but one government objection to the manuscript. The court also dismissed other government objections to release of written answers to interview questions submitted by then-New York Times reporter Judith Miller.

POLICY ON CONTROLLED UNCLASSIFIED INFO LANGUISHES

Three and a half years have passed since President Bush called for the establishment of a standardized government-wide format for the handling of "controlled unclassified information" (CUI) that would replace the dozens of different, incompatible controls on what had been known as "Sensitive But Unclassified" (SBU) information. More than a year has passed since President Bush declared that the new CUI framework was established.

But in practice, little has changed because the implementing policies and procedures have not yet been devised. An initial draft for comment is expected sometime this summer. Meanwhile, agencies continue to follow their previous, often problematic approaches.

"Department of Defense components are not to use any of the new CUI markings until the national level interagency policy has been issued, the DoD-level implementation guidance has been published, and the DoD CUI Transition Plan is completed," wrote Under Secretary of Defense James R. Clapper, Jr. in an internal memorandum last month. "Until such time, existing policy guidance pertaining to information such as For Official Use Only (FOUO), SBU, and DoD Unclassified Controlled Nuclear Information... must be strictly adhered to," Gen. Clapper wrote.

The National Archives has requested $1.9 million for the Controlled Unclassified Information Office in FY 2010. "The office will establish standards and guidance for this type of information, and monitor department and agency compliance."

Aside from increasing uniformity of controls on information, limits on the authorized use of such controls and other policy provisions remain to be defined.

THE ROLE OF THE CIA HISTORICAL REVIEW PANEL

The CIA Historical Review Panel, an advisory group which is composed of academic historians and political scientists, provides the CIA with recommendations on declassification policies and priorities. The role of the Panel was described lately by its chairman, Prof. Robert Jervis, in the latest issue of Passport, the newsletter of the Society for Historians of American Foreign Relations.

Prof. Jervis is a brilliant political scientist, but under his leadership the Historical Review Panel has not been notably effective and his description of the Panel's activities suggests why this may be so.

As a matter of policy, he writes, the Panel operates in secret and does not disclose "the substance of the recommendations we have made" concerning CIA declassification policy. Why not? Because "heads of agencies are entitled to confidential advice." But while this may often be true of advice from agency employees, it is not true of all advice from anyone. Panel members do not work for the CIA. In fact, they are supposed to represent a broad public interest, not merely a personal or professional self-interest, and so they reasonably could be expected to interact with those they represent. Instead, by yielding to CIA's preference for secrecy, the Panel not only severs its connection with its own constituency, it also neutralizes its primary source of leverage, namely public opinion.

Thus Prof. Jervis notes in passing that some recent episodes of "bad publicity" generated by inappropriate CIA reclassification actions had taught agency officials to "realize... [the] high cost" of spurious classification activity. But since the Historical Review Panel deliberately operates without publicity, it is unlikely to inspire any similar realizations on the part of agency officials.

Prof. Jervis writes that the Panel has "spent hours talking to top CIA officials" about the declassification of historical intelligence community budget figures, although "I cannot reveal the positions we took." But there are a limited number of possibilities here. If the Panel took the position that historical budget figures should remain classified indefinitely, then indeed it has been marvelously effective. But if, as seems more likely, Panel members argued that such old budget numbers should be declassified, then its efforts have been in vain.

Declassification advisory panels that include public representation can serve a constructive role in shaping and overseeing agency declassification programs. But the CIA Historical Review Panel serves mainly as a negative example of how the utility and the influence of such panels can be compromised.

See "The CIA and Declassification: The Role of the Historical Review Panel" by Robert Jervis, Passport, April 2009 (pp. 10-13):

******************************

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

The Secrecy News blog is at:
      http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

To UNSUBSCRIBE, go to:
      http://www.fas.org/sgp/news/secrecy/unsubscribe.html

OR email your request to saftergood@fas.org

Secrecy News is archived at:
      http://www.fas.org/sgp/news/secrecy/index.html

SUPPORT the FAS Project on Government Secrecy with a donation here:
      http://www.fas.org/sgp/donate.html