SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 61
July 15, 2009

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

BARRIERS TO ARCHIVAL ACCESS STYMIE HISTORICAL RESEARCH

Notwithstanding official proclamations of a new era of transparency, public access to declassified historical records continues to be obstructed by procedural potholes, limited resources for processing records, competing priorities and, sometimes, bad faith.

At the Naval History and Heritage Command (NHHC), declassified files that used to be open to the public have been withdrawn indefinitely so that they may reviewed for inadvertent releases of classified nuclear weapons-related information, pursuant to the 1999 "Kyl-Lott" Amendment. Nearly all Navy records there dating from the 1960s forward are now completely unavailable to the public, said historians Larry Berman of UC Davis and William Burr of the National Security Archive.

The blanket closure of entire collections, they suggested in an April 29 letter, is "wholly inconsistent with the spirit of the new presidential administration."

As an alternative, Berman and Burr asked the Navy to at least permit expedited review of specific records in response to researcher interests, as the National Archives did when it implemented a similar Kyl-Lott review. Earlier this month, their proposal was denied.

"I regret to inform you that the Navy is unable to support your request at this time due to previously established government declassification priorities," wrote Vice Admiral J.C. Harvey, Jr., Director of the Navy Staff on July 1.

Not only that, he said, but the barriers preventing public access to Navy historical records will remain in place for at least several years to come. "A Kyl-Lott review of the NHHC holdings may start in 2012 barring any change in, or additions to, government priorities."

Until then, researchers interested in Navy history are stymied. "Any researcher who wants to look at Navy records from the early 1960s forward is frozen out by this policy," said Mr. Burr of the National Security Archive. "If David Vine, the author of the recent book on Diego Garcia 'Island of Shame,' which made good use of records at the Navy Yard, was starting his work this year he would be totally out of luck."

Faced with such an uncompromising response, researchers can still employ the Freedom of Information Act, which is arguably even more burdensome for the government to implement but which is legally enforceable.

But Prof. Berman said this option was problematic as well. The Navy "denied access to their finding aids because they feared this would ease my FOIA request," he said. And Navy officials also denied his request for a FOIA fee waiver on the extraordinary grounds that the records he requested will be used to support his work on the first scholarly biography of Admiral Elmo Zumwalt. "Imagine that, a historian plans to write a book," he said.

It is well established in FOIA case law that scholarship, like news gathering, is not a private commercial interest that would disqualify a requester from receiving a fee waiver. Prof. Berman said he would appeal the denial.

NEW LIGHT ON INTELLIGENCE NOTIFICATIONS TO CONGRESS

The White House has threatened to veto the FY2010 intelligence bill if it amends the National Security Act to permit expanded notification of sensitive intelligence activities to more members of the intelligence committees, as the House Intelligence Committee proposed. ("Covert Action Notification Policy in Dispute," Secrecy News, July 9, 2009). However, based on the findings of a new report from the Congressional Research Service, the controversial amendment may not be necessary in order to achieve the intended result.

The new CRS report explains the role of the "Gang of Four," meaning the chairmen and ranking members of the House and Senate Intelligence Committees, who are to be informed of particularly sensitive intelligence activities. (When the Bush Administration first notified Congress of its warrantless surveillance program, it limited the disclosure to the "Gang of Four.")

The "Gang of Four," the CRS explains, is distinct from the "Gang of Eight," which includes the leaders of the intelligence committees as well as the majority and minority leaders of the House and Senate. The Gang of Eight is notified regarding sensitive covert action programs. The Gang of Four is notified in cases of certain non-covert action intelligence programs, mainly sensitive intelligence collection programs. The Gang of Eight has a basis in statute. The Gang of Four does not.

Both notification arrangements have been criticized for unduly restricting the ability of congressional leaders to consult colleagues and staff. Rep. Jane Harman, for example, complained in 2006 that members of the Gang of Eight who are granted official notifications of covert actions "cannot take notes, seek the advice of their counsel, or even discuss the issues raised with their committee colleagues." It is these sort of restrictions that the proposed House amendment aimed to revise.

But remarkably, the idea that such internal disclosures are barred seems to be more a matter of convention than a binding requirement, the CRS report concluded.

"There arguably is no provision in statute that restricts whether and how the Chairman and Ranking Members of the intelligence committees share with committee members information pertaining to intelligence activities that the executive branch has provided only to the committee leadership, either through Gang of Four or Gang of Eight notifications. Nor apparently is there any statutory provision which sets forth any procedures that would govern the access of appropriately cleared committee staff to such classified information."

And as a matter of fact, "there have been instances when intelligence committee leadership has decided to inform the full membership of the intelligence committees of certain Gang of Four notifications," the CRS found.

A copy of the CRS report was obtained by Secrecy News. See "'Gang of Four' Congressional Intelligence Notifications," July 14, 2009:

SOME MORE FROM CRS

Other noteworthy new CRS reports that have not previously been made available online include:

"Afghanistan: U.S. Foreign Assistance," July 8, 2009:

"Chemical Facility Security: Reauthorization, Policy Issues, and Options for Congress," July 13, 2009:

CLASSIFIED INTELLIGENCE LEAKS, 2001-2008

Between September 2001 and February 2008, the Federal Bureau of Investigation initiated and closed the investigation of 85 reported leaks of classified intelligence information, "all of which concerned unauthorized disclosures of classified information to the media," FBI Director Robert S. Mueller III told the Senate Intelligence Committee in a written response to questions dated February 4, 2008.

"None of these cases reached prosecution," he said. As of February 2008, "21 such cases are [still] under investigation."

This information appeared in questions for the record that were appended to "Current and Projected National Security Threats to the United States," a hearing before the Senate Intelligence Committee that was held January 11, 2007. The complete hearing volume was finally published last month, and the newly published questions for the record are excerpted here:

The Senate Intelligence Committee has renewed its practice of including questions for the record (QFRs) in published hearing volumes, for which one may be thankful, even when the answers are classified or are not provided by the agencies at all.

Some additional QFRs, also newly published last month, appear in "Statutory Authorities of the Director of National Intelligence," Senate Intelligence Committee, February 14, 2008:

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

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