SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 113
November 5, 2012

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

PENTAGON INSPECTOR GENERAL TO PROBE OVERCLASSIFICATION

The Department of Defense Inspector General (IG) announced that it will begin to review the Department's classification practices, as required by the 2010 Reducing Over-Classification Act.

The review will evaluate the policies and procedures "that may be contributing to persistent misclassification of material." It will also address "efforts by the Department to decrease over-classification," wrote Acting Deputy Inspector General James R. Ives in an October 3 letter sent to Department officials.

The new Inspector General review has the potential to thicken and enrich the oversight of national security classification policy. The IG staff will have broad access to whatever classified Department information they require to perform their statutorily-mandated review. Moreover, they typically have an investigative orientation that goes beyond routine monitoring. And while the Information Security Oversight Office is responsible for secrecy oversight government-wide, the IG reviews (which are to be coordinated with ISOO) are to be focused, in-depth assessments of a single host agency and so they may be expected to provide new granularity as well as actionable findings.

Of course, there are limits to what the IG can achieve. The IG review will at best evaluate the Defense Department's compliance with executive branch classification policies; it will not inquire into the necessity or wisdom of the policies themselves. If the executive order on classification is based on outdated presumptions, or is otherwise misconceived-- that is beyond the purview of the IG.

Still, this seems like an approach worth testing. The use of Inspectors General to bolster classification oversight was advocated by the Federation of American Scientists at a hearing of the House Intelligence Committee on "Classification of National Security Information" in July 2007. Rep. Anna Eshoo, who chaired the hearing, welcomed the idea as "very helpful."

The proposal for IG review was then embraced by Rep. Jane Harman, who incorporated it into her 2007 House bill on over-classification. With the Senate sponsorship of Sen. Joe Lieberman, the Reducing Over-Classification Act was finally passed by Congress and signed by President Obama in October 2010.

The DoD IG had said last year that it intended to begin the classification review "immediately," but that seems to have been a false start. In any case, the first of two IG reviews in each agency must be completed by the end of September 2013.

The DoD Inspector General also announced another project to review interactions between DoD employees and the media concerning DoD classified programs.

FAITHLESS ELECTORS, AND MORE FROM CRS

The members of the Electoral College who formally enact the election of the President are expected or even required to represent the wishes of the voters who elected them, but sometimes they don't!

"Notwithstanding the tradition that electors are bound to vote for the candidates of the party that nominated them, individual electors have sometimes broken their commitment, voting for a different candidate or candidates other than those to whom they were pledged," a report from the Congressional Research Service explains. "They are known as 'faithless' or 'unfaithful' electors."

"Although 24 states seek to prohibit faithless electors by a variety of methods, including pledges and the threat of fines or criminal action, most constitutional scholars believe that once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have been few in number (since the 20th century, one each in 1948, 1956, 1960, 1968, 1972, 1976, and 1988, one blank ballot cast in 2000, and one in 2004), and have never influenced the outcome of a presidential election."

See The Electoral College: How It Works in Contemporary Presidential Elections, October 22, 2012:

Other new and newly updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, October 25, 2012:

Federal Involvement in Flood Response and Flood Infrastructure Repair: Storm Sandy Recovery, October 31, 2012:

Emergency Relief Program: Federal-Aid Highway Assistance for Disaster-Damaged Roads and Bridges, November 1, 2012:

Constitutionality of Retroactive Tax Legislation, October 25, 2012:

The Impact of the Federal Estate Tax on State Estate Taxes, October 24, 2012:

Air Force F-22 Fighter Program, updated October 25, 2012:

SOME COMMENTS ON THE "WITHDRAWAL" OF A CRS REPORT

The New York Times reported last week that the Congressional Research Service had withdrawn a report that found no correlation between reduced tax rates and increased economic growth after some Republican Senators took exception to it. ("Nonpartisan Tax Report Withdrawn After G.O.P. Protest" by Jonathan Weisman, November 1.)

But "withdrawn" here means withdrawn from the internal congressional website. CRS could not withdraw the report from public circulation because it never made the report publicly available. In fact, as things stand, the "withdrawn" CRS report is now more widely accessible than the large majority of other CRS products. Not only did the New York Times post it online, it is available on the congressional website of the Senate Democratic Policy Committee, as well the FAS website and elsewhere.

But neither congressional Republicans who were angered by the report nor Democrats who were offended by its withdrawal have seen fit to provide public access online to thousands of other CRS reports, which are effectively suppressed without being withdrawn. (A House resolution earlier this year to alter that anachronistic policy has not gone anywhere.)

One possible argument against public disclosure is that the CRS report on tax rates and growth would almost certainly have escaped criticism if it had not been introduced into broad public discourse by a previous New York Times article in September. Once people began talking about it, it could not be ignored by interested members of Congress. But that is an argument for CRS irrelevance, not for non-disclosure.

CRS often does fine work, but it is not above error or beyond criticism. Republicans, Democrats and anyone else are all well within their rights to dispute CRS reports on factual, methodological or even ideological grounds. Why wouldn't they be?

Ideally, the proper response from CRS would not have been to withdraw the report, but to engage the critics. If those critics have valid points, CRS should revise the report accordingly. If the objections are not valid, let CRS explain why. This shouldn't be complicated. And yet somehow it is. Once a congressional agency becomes the target of partisan attacks, it can be crippled and then destroyed, as was the case with the still-lamented Office of Technology Assessment, which was terminated by the new Republican majority in 1995. ("Congress surely doesn't need [a research organization such as CRS] that acts like an arm of the Democratic Party," the Wall Street Journal editorialized ominously and unfairly on Friday in response to the latest controversy.)

According to the Times story last week, "Congressional aides and outside economists said they were not aware of previous efforts to discredit a study from the research service." But actually there have been a number of such efforts in which the motives or competence of CRS analysts were impugned by Members who disagreed with their conclusions.

"CRS completely ignored the most basic principles of statutory interpretation," complained Rep. Pete Hoekstra (R-MI) in an angry 2006 letter to the CRS director criticizing certain CRS intelligence studies. He said CRS had produced "a flawed and obviously incomplete analysis.... " The CRS perspective was defended at that time by Rep. Jane Harman, and the studies in question were not rescinded. (See "Mau-Mauing the Congressional Research Service," Secrecy News, February 4, 2006.)

A 1993 CRS report on "Iraq's Nuclear Achievements" was one of a number of reports that have been withdrawn from official circulation for various reasons.

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

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