SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 91
November 16, 2010

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

BETTER OVERSIGHT DUE ON UNCLASSIFIED CONTROL MARKINGS

The use of access control markings such as the Transportation Security Agency's "Sensitive Security Information" (SSI) to limit disclosure of unclassified records has been criticized from time to time as arbitrary and self-serving. But now, due to a subtle change in the recent executive order on "Controlled Unclassified Information," SSI and other such markings should receive new oversight and scrutiny.

In a preliminary draft of the new executive order 13556 on Controlled Unclassified Information (at section 1.3b), four existing control markings were "grandfathered" into the new CUI system -- Sensitive Security Information, Critical Infrastructure Information, Chemical Vulnerability Information, and Safeguards Information. This means that they were presumptively approved for future use without any further review.

But in the final draft of the executive order approved by the President on November 4, that provision and that presumptive approval were withdrawn. Consequently, SSI and the other control markings will have to go through the same external review and approval process as other controls on unclassified information in order to qualify as CUI.

SSI and several other unclassified control categories are authorized in statute, so they cannot be categorically eliminated or disapproved by the CUI Executive Agent. But what the CUI review process can do is to help ensure that what agencies claim is SSI really does fall into that category.

This became a live issue recently when the Transportation Security Administration moved to seal a lawsuit brought by a former TSA air marshal by claiming that the names of officials who disciplined and removed the air marshal are themselves SSI. To outside observers, this appeared to be an abuse of the SSI control marking to gain tactical advantage in the lawsuit. See "Why Is the TSA Keeping Air Marshal Employment Disputes Under a Veil of Secrecy?" by Nick Schwellenbach, Project on Government Oversight (POGO), November 2, 2010:

Eliminating the a priori approval of SSI markings from the CUI system should mean more scrupulous use of such markings, according to a government official involved in drafting the new executive order. "Treating them as any other allows oversight...to at least try to avoid the sort of alleged absurd decisions highlighted by POGO," the official said.

A GOOD LEAK: DOJ REPORT ON HISTORY OF NAZI-HUNTING

In a revealing failure of Administration commitments to transparency, an official history of the U.S. government's post-war pursuit of (or sometimes accommodation with) Nazi war criminals was obtained by the New York Times after the Department of Justice refused to release an unexpurgated version under the Freedom of Information Act.

The secret history was reported in "Nazis Were Given 'Safe Haven' in U.S., Report Says" by Eric Lichtblau in the New York Times, November 14. The Times also posted the complete text of the document online.

A side-by-side review of the leaked and the redacted versions compels the conclusion that the Department of Justice exceeded its authority to withhold information from the public, and violated the disclosure requirements of the Freedom of Information Act.

"Now that we can compare the redacted document with the complete text of the original report, it is clear that the Justice Department is withholding information without legal justification," said attorney David Sobel, who represented the National Security Archive in its request for the document. "For an administration -- and an Attorney General -- supposedly committed to an 'unprecedented' level of transparency, this case provides a troubling example of how far the reality is from the rhetoric."

But in a paradigmatic example of "a good leak" that advances the public interest, the unauthorized disclosure of the document succeeded where normal disclosure procedures failed.

SENATE REPORT ON THE NEW START TREATY

The rationale for the New START Treaty between the United States and Russia on reductions in nuclear weapons was addressed at length in an October 1 report from the Senate Foreign Relations Committee. On September 16, the Committee recommended ratification of the Treaty, which awaits consideration by the full Senate.

The 141-page Committee report explained the terms of the Treaty, its verification, its implications for missile defense and prompt global strike, and related subjects of concern or controversy, with dissenting views from opponents. See "Treaty with Russia on Measures for Further Reduction and Limitation of Strategic Offensive Arms (The New START Treaty)," Senate Foreign Relations Committee (SFRC) executive report 111-6, October 1 (large pdf):

The Senate Committee action was welcomed by many Russian officials as a harbinger of possible Treaty ratification by the end of this year. But other senior Russian officials criticized the Committee's handling of the Treaty, as noted in a recently updated report from the Congressional Research Service:

"On November 3, 2010,... State Duma International Affairs Committee Chairman Kosachev stated that his committee would reopen hearings to discuss the ramifications of the action by the SFRC. He alleged that many of the conditions, understandings, and declarations in the resolution of advice and consent to ratification proposed by the SFRC are 'deeply worrisome' to many Russian Duma members, and stated that not only the synchronization of the ratification was necessary, but also the formulation of Russian statements to address those raised by the SFRC. He also raised concerns that a shift in party control in the U.S. Congress could delay or derail U.S. Congressional action on the treaty."

See "Russian Political, Economic, and Security Issues and U.S. Interests," Congressional Research Service, November 4, 2010:

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

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