SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2013, Issue No. 64
July 12, 2013

Secrecy News Blog: http://blogs.fas.org/secrecy/

PRESIDENTIAL DIRECTIVES MOSTLY WITHHELD BY WHITE HOUSE

If one is looking for a copy of a Presidential Policy Directive issued by President Obama, the last place to turn is the White House website. In most cases, the Obama White House does not disclose presidential directives even when they are unclassified.

The Obama Administration has issued more than 20 Presidential Policy Directives (PPDs), many of which are collected or listed on the Federation of American Scientists web site.

But with few exceptions (PPD 14, PPD 19) most of these cannot be obtained from the White House. PPD 1, for example, which established the "Organization of the National Security Council System" is not on the White House web site, though it can be found on the FAS site here:

This refusal to disclose basic policy information is not merely frustrating and antithetical to transparency. By withholding current policy guidance, the White House may be inadvertently implying that obsolete guidance is still in effect.

Several of the Obama directives replaced previous directives issued by the George W. Bush Administration, particularly on homeland security policy. But while many of those Bush directives were publicly available, explained Christian Beckner of the Homeland Security Policy Institute at George Washington University, their successor directives from President Obama are not.

For example, he wrote, Obama's PPD 18 on Maritime Security, which has not been released, replaced the Bush National Security Policy Directive 41, which was published on the Bush White House web site. Under the circumstances, withholding PPD 18 is bound to create confusion, especially among non-federal stakeholders.

"Without its public release, key stakeholders are likely still assuming that NSPD-41 is the top-level federal policy directive on maritime security issues, when in reality it was rescinded nearly a year ago," wrote Beckner.

Similarly, the Obama PPD 17 on Countering Improvised Explosive Devices, which has not been disclosed, replaced the Bush Administration HSPD 19, which was disclosed. The result is a deficit in current, accurate policy information.

"Why this lack of transparency for a category of documents that had been publicly released in the previous administration?" Beckner wondered.

"I suspect a primary cause of this is the integration of the Homeland Security Council (HSC) into the National Security Council (NSC) in 2009," he suggested. "The parts of the HSC that were absorbed into the new structure seem to have taken on the internal processes of the NSC, which has traditionally operated in the classified domain and worked on issues where federal agencies and international governments are the primary (if not sole) actors. However, for nearly all homeland security issues, the participation of non-federal stakeholders is essential. It's not serving anyone's interests for these directives to be kept so close hold."

See "Missing Homeland Security PPDs -- why not online?" by Christian Beckner, Homeland Security Watch, July 11:

However, the White House presidential directive non-disclosure policy extends beyond homeland security. Recently, the non-profit Center for Effective Government (CEG) sought to obtain a copy of Presidential Policy Directive 6 on Global Development. Though unclassified, the Administration refused to release the document, which it says is privileged.

In response to a pending Freedom of Information Act lawsuit filed by CEG, the Administration said last month that the 2010 directive was exempt from disclosure because it is "a confidential communication from the President to a select and limited group of senior foreign policy advisors, cabinet officials, and agency heads concerning the global development policy of the United States."

While unclassified Obama presidential directives are mostly unavailable to the public, at least one highly classified Obama directive is posted online for anyone who wishes to read it. Presidential Policy Directive 20 on U.S. Cyber Operations Policy was apparently leaked by Edward Snowden and was published by the Guardian newspaper ("Obama orders US to draw up overseas target list for cyber-attacks" by Glenn Greenwald and Ewen MacAskill, June 7).

SURVEILLANCE AND THE FUTURE OF STANDING, AND MORE FROM CRS

It may be easier for litigants to mount a constitutional challenge to intelligence surveillance programs that gather U.S. data such as telephone and internet metadata now that those programs have been documented through leaks of classified records. Or, says a new report from the Congressional Research Service, it may not be.

Unlike previous cases, "the litigants in these newly filed lawsuits would appear to have a stronger argument for how they have been injured [than prior litigants did, and they] have evidence that the government is actually using its authority to gather data that is pertinent to the plaintiffs," the CRS report said.

"However, the plaintiffs in these lawsuits may still have significant difficulties in establishing standing, as they have arguably not alleged that they have been specifically targeted by the government or injured in any concrete and particularized way by the government's conduct," the CRS author speculates.

See Foreign Surveillance and the Future of Standing to Sue Post-Clapper, July 10, 2013:

Other new or newly updated CRS reports include the following.

Cluster Munitions: Background and Issues for Congress, July 9, 2013:

Points of Order in the Congressional Budget Process, July 11, 2013:

Europe's Energy Security: Options and Challenges to Natural Gas Supply Diversification, July 11, 2013:

Kuwait: Security, Reform, and U.S. Policy, July 10, 2013:

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

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