SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 51
June 10, 2009

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

CLASSIFICATION AND THE "DESCENT INTO TORTURE"

The public has been significantly misled and misinformed concerning the practice of abusive interrogation by the U.S. government and the resulting damage to American political institutions, said Senator Sheldon Whitehouse (D-RI) on the Senate floor yesterday.

"I am very sorry to say this--but there has been a campaign of falsehood about this whole sorry episode. It has disserved the American public. As I said earlier, facing up to the questions of our use of torture is hard enough. It is worse when people are misled and don't know the whole truth and so can't form an informed opinion and instead quarrel over irrelevancies and false premises. Much debunking of falsehood remains to be done but cannot be done now because the accurate and complete information is classified," Sen. Whitehouse said.

"I want my colleagues and the American public to know that measured against the information I have been able to gain access to, the story line we have been led to believe--the story line about waterboarding we have been sold--is false in every one of its dimensions."

He itemized several statements he said were demonstrably untrue, beginning with the declaration by President Bush that "America does not torture."

He said a structured investigation was needed into what he called "America's descent into torture." First, it is necessary to document what was done, under what conditions, and to what end. A second set of questions concerns "how this was allowed to happen." Finally, a rigorous debunking of erroneous and false assertions is needed.

Classification policy is an obstacle to the achievement of all of these objectives, he said, especially the latter: "At the heart of all these falsehoods lies a particular and specific problem: The 'declassifiers' in the U.S. Government are all in the executive branch. No Senator can declassify, and the procedure for the Senate as an institution to declassify something is so cumbersome that it has never been used."

RECENT CONGRESSIONAL ACTIONS AND PUBLICATIONS

Senators Joe Lieberman and Lindsey Graham said they would do their utmost to block the release under the Freedom of Information Act of photographs documenting the abuse of detainees held in U.S. custody. "Such a release would be tantamount to a death sentence to some who are serving our nation in the most dangerous and difficult spots like Iraq and Afghanistan," they said, urging passage of an amendment to exempt any such photographs from the FOIA.

Rep. Jane Harman introduced legislation to terminate the National Applications Office, the DHS organization that would employ intelligence satellite imagery for homeland security and domestic law enforcement purposes. DHS has failed to provide a legal framework and justification for the program, she said, and therefore "Operation of the NAO in its current state poses serious constitutional questions and threatens to violate the privacy of Americans and their civil liberties."

Senator Russ Feingold and several colleagues in both parties introduced a resolution that would strengthen the Senate Intelligence Committee by giving it the power to appropriate as well as authorize funds for intelligence. The move is needed, the resolution said, "to provide vigilant legislative oversight over the intelligence activities of the United States to ensure that such activities are in conformity with the Constitution and laws of the United States."

The record of a July 2006 hearing before the Senate Judiciary Committee entitled "Hamdan v. Rumsfeld: Establishing a Constitutional Process" was published in April 2009, with supplementary material for the record.

Another Senate Judiciary Committee hearing volume from a June 2006 hearing on "The Use of Presidential Signing Statements" was also published in April 2009.

CONGRESSIONAL ACCESS TO NATIONAL SECURITY INFO

Executive branch officials understandably seek to maximize their authority to regulate the distribution and disclosure of classified national security information, and they often cite historical precedents dating back to the days of President George Washington to justify their claims. But though some members of Congress seem not to realize it, Congress has an independent claim to access such information, a claim with its own historical foundation.

A new analysis by Louis Fisher of the Law Library of Congress provides a nuanced account of several episodes from the Washington Administration that tend to refute the more expansive views of executive branch authority over classified information.

"Upon closer examination, precedents from the Washington Administration do not support the claim of exclusive and plenary authority by the President," Dr. Fisher writes. "The scope of the President's power over national defense and foreign affairs depends very much on what Congress does in asserting its own substantial authorities in those areas," he concludes.

See "Congressional Access to National Security Information: Precedents from the Washington Administration" by Louis Fisher, Law Library of Congress, May 22, 2009:

DECLASS PANEL HELPS OVERCOME REFLEXIVE SECRECY

One of the most successful innovations in the otherwise mostly stagnant domain of classification policy was the creation of the Interagency Security Classification Appeals Panel (ISCAP), an executive branch entity that was established by President Clinton's 1995 executive order 12958.

For over a decade, the ISCAP has maintained an astonishing record of ordering the declassification of information in a majority of the documents that have been presented for its review. In each of those cases, the Panel effectively overruled the classification judgment of one of its own member agencies. There are policy lessons to be learned from this experience concerning the often poor quality of routine classification actions and the value of extending declassification authority beyond the originating agency.

Bill Burr of the National Security Archive recently prepared a thoughtful overview of the creation and the operation of the ISCAP, together with a compilation of several of the latest documents that it approved for release. See "The Secrecy Court of Last Resort: New Declassification Releases by the Interagency Security Classification Appeals Panel (ISCAP)," National Security Archive Electronic Briefing Book, June 5:

FURTHER DECLASSIFICATION OF REAGAN-ERA DIRECTIVES

One of the minor offenses of the Obama White House is its inexplicable failure to publish presidential directives -- now dubbed Presidential Policy Directives -- even when they are unclassified. But presidential directives from prior administrations continue to enter the public domain following repeated declassification reviews.

Several National Security Decision Directives (NSDDs) issued by President Reagan were released in full or with fewer redactions last April at the Reagan Library:

NSDD 12 on "Strategic Forces Modernization Program" was released in its entirety. A section on submarine launched missiles that was censored in a prior declassification review was restored, along with other redactions (thanks to www.thereaganfiles.com):

NSDD 35 on "The M-X Program" was also released in full, including two previously censored paragraphs:

NSDD 21 on "Responding to Floggers in Cuba" was released with one paragraph still redacted but several previous redactions now disclosed (Floggers are Soviet MiG-23 fighter aircraft):

Other NSDDs that have undergone declassification review in recent years leading to significant additional disclosures include the following:

These directives and other NSDDs may be found here:

A NEW HISTORY OF THE NATIONAL SECURITY AGENCY

"The Secret Sentry" by Matthew Aid is a comprehensive new history of the National Security Agency, from its origins in World War II through its Cold War successes, failures and scandals up until the present.

Aid, an independent historian who is also a visiting fellow at the National Security Archive, has synthesized a tremendous amount of research into a narrative that is highly readable and sometimes gripping. All of the familiar stops are there, including the Truman memo of 1952 that established the Agency, the Gulf of Tonkin incident, KAL 007, 9/11 and on to today.

But the book also includes quite a bit of unfamiliar historical material, and almost any reader is likely to discover something new and interesting. I learned, for example, that a few months after seizing the USS Pueblo in 1968, North Korea published a book in French containing the full text of many captured NSA documents, some of which, Mr. Aid says, are still considered to be classified today (p. 142).

What will make The Secret Sentry indispensable to researchers are its nearly one hundred pages of endnotes, which constitute a unique finding aid to the most current archival releases, internal agency histories, and other valuable records. Some of the documents gathered by Mr. Aid in the course of his decades of research later vanished from public stacks at the National Archives, prompting him to realize that some government agencies were silently -- and often improperly -- reclassifying declassified records. Portions of those now inaccessible records have been integrated into this new history.

Inevitably, the book contains some minor errors. Mr. Aid repeats an assertion by the 9/11 Commission that Osama bin Laden was alerted to NSA monitoring of his satellite phone as the result of a 1998 news story that appeared in the Washington Times (p. 383, note 69). But he neglects to note that this assertion has been effectively refuted. (See, e.g., "File the Bin Laden Phone Leak Under 'Urban Myths'" by Glenn Kessler, Washington Post, December 22, 2005.)

The author is generous in his citations to the leading authors in the intelligence field, from David Wise and David Kahn to Seymour Hersh and Jeffrey Richelson and other less celebrated writers -- with one strange and disconcerting exception. There is not a single reference in the entire book to James Bamford, whose 1983 book The Puzzle Palace, among others, blazed the trail that The Secret Sentry follows. Perhaps Mr. Aid felt it was necessary to ignore Mr. Bamford so as not to be constantly agreeing or disagreeing with him, and confirming or disputing his accounts. If that is the case, he ought to have said so.

The Secret Sentry is being published this week by Bloomsbury Press.

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

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