SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 62
July 20, 2009

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

COURT REBUKES GOVERNMENT OVER "SECRET LAW"

"Government must operate through public laws and regulations" and not through "secret law," a federal appellate court declared in a decision last month. When the government attempts to do otherwise, the court said, it is emulating "totalitarian regimes."

The new ruling overturned the conviction of a defendant who had been found guilty of exporting rifle scopes in violation of the International Traffic in Arms Regulations (ITAR). The court said that the government had failed to properly identify which items are subject to export control regulations, or to justify the criteria for controlling them. It said the defendant could not be held responsible for violating such vague regulations.

Accepting the State Department's claim of "authority to classify any item as a 'defense article' [thereby making it subject to export controls], without revealing the basis of the decision and without allowing any inquiry by the jury, would create serious constitutional problems," wrote Chief Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals. "It would allow the sort of secret law that [the Supreme Court in] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), condemned."

Normally, "A regulation is published for all to see," explained Judge Easterbrook, a Reagan appointee who is considered a judicial conservative. "People can adjust their conduct to avoid liability. [In contrast,] a designation by an unnamed official, using unspecified criteria, that is put in a desk drawer, taken out only for use at a criminal trial, and immune from any evaluation by the judiciary, is the sort of tactic usually associated with totalitarian regimes," he said. See the Court's ruling in United States of America v. Doli Syarief Pulungan, June 15, 2009:

The new ruling "could be a very big deal in terms of export controls, and indeed in terms of 'secret law' in general," said Gerald Epstein, a science and security policy scholar who served on a recent National Academy of Sciences panel on export control policy.

"This case goes to the heart of the ambiguity of the International Traffic in Arms Regulations, which give the State Department great latitude in determining what is and what is not covered, and which are administered in a notoriously opaque way," Dr. Epstein told Secrecy News.

Export control policy was addressed from various perspectives in an April 24, 2008 Senate hearing entitled "Beyond Control: Reforming Export Licensing Agencies for National Security and Economic Interests" that was published last month:

Last year, Sen. Russ Feingold convened a hearing on the subject of "Secret Law and the Threat to Democratic and Accountable Government." The record of that hearing is here:

My prepared statement from that hearing on the diverse categories of secret law is available here:

STATE DEPT OFFERS NEW CAVEAT ON NIXON TAPES

The transcripts of Nixon White House tape recordings that are published in the State Department's official Foreign Relations of the United States (FRUS) series are merely "interpretations," not official records, the State Department acknowledged in the latest FRUS volume that was released this month. As such, those transcripts are susceptible to revision and correction.

"Readers are advised that the tape recording is the official document, while the transcript represents solely an interpretation of that document," the new FRUS volume states in the Preface.

The statement goes beyond previous FRUS references to poor tape quality. It is evidently a response to a simmering scholarly controversy over the accuracy of published FRUS transcriptions of the Nixon tapes, which appear to include clear errors.

Here are some examples of suspect "interpretations" from the Nixon FRUS Volume XIV (Soviet Union, October 1971-May 1972) that was published in December 2006:

There is widespread agreement that it is not possible to produce a perfect transcript of the Nixon tapes. "Audio fidelity was never one of the design considerations of the original, surreptitious taping system," said one former official. But by publishing the transcripts alongside other undisputed archival records, the FRUS series has appeared to boast a higher level of transcription accuracy than it has in fact provided.

"It is perfectly possible for two experienced auditors to transcribe two conflicting versions of the same conversation," said Dr. William B. McAllister, the Acting General Editor of the FRUS series, though he admitted that only one of them could be correct. He said that the problem of interpreting official records was not altogether new and was also not limited to the Nixon tapes. The famous Long Telegram that was sent by George Kennan in 1946 has some garbled text that has been interpreted in different ways. And with the growing importance for historians of audio, video, and even twitter records, "It's only going to get more tricky."

"Readers are urged to consult the recordings themselves for a full appreciation of those aspects of the conversations that cannot be captured in a transcript," the FRUS volumes recommend, "such as the speakers' inflections and emphases that may convey nuances of meaning, as well as the larger context of the discussion."

A growing selection of Nixon audio tapes can be found online at www.nixontapes.org.

The interesting new FRUS volume on "American Republics," which is the first FRUS publication in 2009, addresses U.S. policy towards Latin America and the Caribbean between 1969 and 1972, including covert action. The new volume, published online only, excludes materials on Bolivia, which the editors say have not yet been declassified, and it also omits records on Chile, which are to be published separately. The Preface states that documents on Uruguay are not being published "due to space constraints." In fact, however, space is not at a premium in online "e-volumes," and Secrecy News is told that the Uruguay compilation has not been declassified, which ought to have been noted. The new volume is available here:

JFK URGED RELEASE OF MOST DIPLOMATIC RECORDS AFTER 15 YEARS

The latest volume of the Foreign Relations of the United States (FRUS) series, the official record of U.S. foreign policy, reflects events that took place from 1969 to 1972, or nearly forty years ago. This represents a continuing violation of a 1991 statute which requires the Secretary of State to publish FRUS "not more than 30 years after the events recorded."

But even that seemingly unachievable goal is insufficiently ambitious, according to a 1961 directive issued by President John F. Kennedy.

"It has long been a point of pride of our government that we have made the historical record of our diplomacy available more promptly than any other nation in the world," President Kennedy wrote.

"In recent years the publication of the 'Foreign Relations' series has fallen farther and farther behind currency," he wrote. "The lag has now reached approximately twenty years. I regard this as unfortunate and undesirable. It is the policy of this Administration to unfold the historical record as fast and as fully as is consistent with national security and with friendly relations with foreign nations."

"In my view, any official should have a clear and precise case involving the national interest before seeking to withhold from publication documents or papers fifteen or more years old," President Kennedy concluded. l Security Action Memorandum No. 91, "Expediting Publication of 'Foreign Relations'," September 6, 1961:

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

See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
      http://www.fas.org/sgp/eprint/aftergood.pdf

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