SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 103
December 22, 2009

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

NEW EXECUTIVE ORDER AWAITS PRESIDENTIAL DECISION

A new draft executive order on national security classification and declassification policy is expected to be presented to President Obama this week for his personal resolution of issues which remain in dispute among policymakers and affected agencies, especially intelligence agencies.

This marks the first time since the first Bush Administration, nearly two decades ago, that a President has needed to make a final determination on the contents of an executive order because staffers and agencies were unable to reach a consensus view. (Correction: There is a more recent precedent for such presidential involvement. According to Morton Halperin, President Clinton was presented with a "split memo" in 1995 on the question of whether to include a public interest balancing test for declassification in executive order 12958. President Clinton decided against it.)

The currently disputed issues are believed to include the composition of the Interagency Security Classification Appeals Panel, including whether it should include representatives of ODNI or CIA or both, and whether the intelligence agencies should continue to have the veto over Panel declassification decisions that was granted by the George W. Bush Administration.

The final order, which is likely to be issued before the end of December, is expected among other things to direct agencies to conduct a Fundamental Classification Guidance Review in order to eliminate obsolete classification requirements, and to establish a National Declassification Center to coordinate and expedite declassification of historical records, as described in a previous draft dated August 4, 2009 ("Draft Order Would Set New Limits on Classification," Secrecy News, September 29, 2009).

See "Obama Plan Could Limit Records Hidden From Public" by Pete Yost, Associated Press, December 20, 2009:

STATE DEPT SERIES FALLS FARTHER BEHIND SCHEDULE

The U.S. State Department's official Foreign Relations of the United States (FRUS) series had another disappointing year in 2009 with only two softcopy volumes published to date, including one released last week on "Global Issues, 1973-1976."

The FRUS series is supposed to provide "comprehensive documentation of the major foreign policy decisions and actions of the United States Government" and it must must be "thorough, accurate, and reliable." As such, it is a potentially vital tool for advancing declassification of significant historical records and assuring government accountability, at least over the long run.

Publication of FRUS is not optional. By statute, "The Secretary of State shall ensure that the FRUS series shall be published not more than 30 years after the events recorded." But that 30 year goal, which has rarely if ever been met, is now receding further and further from realization, leaving the Secretary of State in violation of the law.

State Department spokesman Ian C. Kelly did not respond to a request for comment on the Department's continuing violation of the law on FRUS publication.

But William B. McAllister, the Acting General Editor of FRUS, expressed a hopeful view of the future despite recent turmoil, which included the last-minute withdrawal of person who was to become the new FRUS General Editor. He said that a third FRUS volume on "Foreign Economic Policy, 1973-1976" would appear before the end of the year, and at least one other in January 2010.

Likewise, Dr. Robert McMahon, who chairs the State Department's Historical Advisory Committee, said "We continue to be optimistic about publication prospects for FRUS volumes in the near future despite the disappointing number of volumes that came out this year. There are four Vietnam volumes alone that should be published in 2010."

"We anticipate being able to fill all [employment] vacancies in 2010, many of them rather early in the year," Dr. McAllister wrote in an email message. "The Office of the Historian is ... well on its way to resolving the multiple infrastructure, document handling, and archival access issues that impact FRUS production.... The Office of the Historian has launched several initiatives to address systemic impediments that slow the declassification process." And over time, "we anticipate returning to a more typical production cycle." But a typical production cycle has never yet meant regular compliance with the mandatory 30 year FRUS publication requirement.

The latest FRUS volume on "Global Issues, 1973-1976" has a number of interesting features and a few peculiarities. Oddly, all of the documents were marked as declassified in December 2008, so this collection was apparently ready for publication online a year ago. And unlike other contemporaneous FRUS volumes, audio tapes are not listed as a source and were apparently not used in the collection. No explanation for this omission was offered.

Among the noteworthy records in the collection is a 1976 intelligence assessment of the likelihood of terrorist acquisition of nuclear weapons, which is deemed "unlikely" in the following year or two. In most respects, the assessment is no longer current or relevant, but it still includes some remarkable observations. Thus, it notes that "The locations of most U.S. [nuclear weapons ] storage sites abroad are locally known and could be ascertained by any terrorist group with a moderately good intelligence potential. Detailed intelligence about the site could be fairly readily acquired in many cases...." Despite this apparent fact, which is even more likely to be true today, the Department of Defense still insists that such information is classified. By doing so, it disrupts routine declassification activities, forcing reviewers to search for and remove non-sensitive but technically classified information.

See "The Likelihood of the Acquisition of Nuclear Weapons by Foreign Terrorist Groups for Use Against the United States," United States Intelligence Board, Interagency Intelligence Memorandum, 8 January 1976:

Another 1976 document on "Naming the Space Shuttle" sought President Ford's approval of a request from hundreds of thousands of "Star Trek" fans that the first NASA space shuttle be named "Enterprise." Most of the White House staff, including Brent Scowcroft and others, concurred. But presidential counselor Robert T. Hartmann contended that Enterprise is "an especially hallowed Naval name... I think the Navy should keep it." Presidential counselor John O. Marsh approved the choice of the name, but said he was "not enthusiastic about the [Star Trek] rationale for the selection," which he disdained as "appealing to a TV fad." President Ford initialed his approval of the proposal.

As it turns out, it seems that the Star Trek "fad" is going to outlast the space shuttle itself.

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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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