SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 42
May 24, 2010

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

NEW APPOINTMENTS TO DECLASSIFICATION CENTER, BOARD

Last week, Sheryl Jasielum Shenberger was named by the Archivist of the United States as the first director of the National Declassification Center.

As director, Ms. Shenberger will be responsible for ensuring that the new Center achieves its initial operating capability when it starts operations in earnest next month. The Center has been tasked by President Obama with eliminating the backlog of over 400 million pages of classified historical records, which must be declassified and made available to the public not later than the end of December 2013. To meet this ambitious goal, the Center will have to process an average of 100 million pages each year, a tenfold increase over recent practice.

Ms. Shenberger has been a Central Intelligence Agency analyst and desk officer, and currently serves as a Branch Chief at the CIA Declassification Center. To an outside observer, this is not necessarily a credential that inspires confidence, since CIA classification and declassification policies are among the most arbitrary and questionable anywhere in the government. But a colleague of Ms. Shenberger praised her performance, and told Secrecy News that she was committed to the goals of the National Declassification Center. "She's there to make it work, not to sabotage it. She wants to succeed, and 'succeed' means 'release'."

Also last week, attorney William A. Burck was appointed to the Public Interest Declassification Board, which advises the White House on declassification policy. Its membership is appointed by the White House, and by Congressional majority and minority leaders.

Mr. Burck was named to the Board by Senate Minority Leader Mitch McConnell (R-KY). According to his bio, he previously served as a Special Counsel to President George W. Bush, in which capacity he advised the President and other officials "on major legal issues confronting the Administration."

The Public Interest Declassification Board has assumed an increasingly important role in the development of secrecy policy. Last year, the Board was asked by the National Security Advisor to help devise "a more fundamental transformation of the security classification system." Board Director Martin C. Faga has recently begun some initial outreach to solicit recommendations on how to effect such a transformation.

THE JURISPRUDENCE OF JUSTICE JOHN PAUL STEVENS

"Justice John Paul Stevens played a pivotal role in determining the scope of executive-branch power in a post-9/11 world," observed the Congressional Research Service in one of a series of new reports reviewing the legacy and impact of Justice Stevens, who is set to retire from the Supreme Court next month.

"Justice Stevens authored majority opinions in two leading cases, Rasul v. Bush and Hamdan v. Rumsfeld, in which the Court allowed detainees' habeas petitions to proceed and invalidated the early incarnation of military commissions, thereby rejecting the broader views of executive power articulated shortly after the 9/11 attacks. In the cases, his view prevailed over strongly articulated dissenting opinions authored by Justice Scalia and other justices," the CRS noted.

"Justice Stevens has been instrumental in developing post-9/11 jurisprudence regarding the limits of executive power during -- and following -- armed conflicts. Prior to 9/11, the Supreme Court had rarely considered questions regarding potential limits on the President's Commander in Chief power. The wartime detention cases provide key insights into the Court's views on the reach of executive authority, as well as on other separation-of-power concerns, including Congress's role."

However, a portion of this legacy on detainees' rights may already be subject to limitation or erosion. Last week, a federal appeals court ruled that detainees held abroad by the U.S. military in Afghanistan -- unlike those in Guantanamo -- could not invoke habeas corpus to appear before a judge. ("Detainees Barred from Access to U.S. Courts," New York Times, May 22, 2010).

See "The Jurisprudence of Justice John Paul Stevens: Leading Opinions on Wartime Detentions," May 13, 2010:

The companion reports from CRS are these:

"The Jurisprudence of Justice John Paul Stevens: Selected Federalism Issues," May 19, 2010:

"The Jurisprudence of Justice John Paul Stevens: Selected Opinions on Intellectual Property Law," May 14, 2010:

"The Jurisprudence of Justice John Paul Stevens: The Constitutionality of Congressional Term Limits and the Presidential Line Item Veto," May 18, 2010:

Congress has forbidden CRS to make these and other publications directly available to the public online. Copies were obtained by Secrecy News.

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

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