SECRECY NEWS

From the FAS Project on Government Secrecy Volume 2009, Issue No. 72 September 8, 2009

REPORT CARD TRACKS THE EBB AND FLOW OF SECRECY

The vast apparatus of government secrecy persisted through the last year with only limited changes in the contours of its multi-billion dollar operations, according to the latest "secrecy report card" published by Openthegovernment.org, a coalition of organizations working for increased transparency. The report card, prepared by Patrice McDermott and Amy Fuller Bennett, is available here:

http://www.openthegovernment.org/otg/SecrecyRC_2009.pdf

The new report card compiles all available indicators, from classification activity (which declined somewhat in 2008) to declassification activity (also down) to FOIA processing to assertions of executive privilege, in order to provide an empirical, not simply rhetorical, picture of government secrecy as it exists today. Ideally, such data can be used to inform efforts to revise and correct secrecy policies.

(Interestingly, the Director of National Intelligence has taken steps to frustrate exactly this kind of empirical account of secrecy. Beginning in 2006, the DNI ordered that DoD intelligence agencies would no longer publicly disclose the amounts of money they spent on classification or declassification-related activities. Although such previously public information has no plausible bearing on the protection of national security or of intelligence sources and methods, the DNI said that it would henceforth be classified-- thereby providing a neat illustration of the underlying problem.)

Judging from its first few months, "The Obama administration so far has a very mixed record on its promise of unprecedented openness," said Patrice McDermott, director of Openthegovernment.org. "We look forward to working with the Administration toward meeting this goal, and will continue to work to make sure the public has the information it needs to hold this Administration accountable."

The new report card was prepared before the announcement last week that White House visitor logs would be publicly released, in response to a lawsuit filed by Citizens for Responsibility and Ethics in Washington.
That step is "historic" and "groundbreaking," the White House said. It is "a major step into the sunlight," the New York Times enthused in an editorial today, and puts the Obama Administration "well on course to be the most open in modern times."

>From our perspective, this seems like a considerable overstatement that
mistakes the formalities of openness for the substance. Laboriously prepared lists of names of visitors to the White House complex provide minimal insight into the policy process. (Nevermind that a meeting at Caribou Coffee across the street can easily circumvent the new disclosure arrangement.) A physical visit to the White House is simply not an essential part of the policy process. If the Bush Administration had not fought so stubbornly to withhold such information, its release would be even less significant.

Given the choice, we would forgo the monthly lists of thousands of names in favor of routine publication of Presidential Policy Directives and Presidential Study Directives, which are fundamental policy documents that do not appear on the Obama White House web site even when they are unclassified.

Despite isolated exceptions, current attempts to steer secrecy policy in a new direction have not yet succeeded -- or failed. The bumpy road to secrecy reform was surveyed most recently in "How to Keep Secrets: Obama Tries to Get Classification Right" by Clint Hendler in the Columbia Journalism Review, September 2, 2009:

http://www.cjr.org/campaign_desk/how_to_keep_secrets.php

A.Q. KHAN DISCUSSES PAKISTAN'S NUCLEAR PROGRAM

Pakistan was ready to test a nuclear weapon just six years after it first began to enrich uranium, according to A.Q. Khan, the architect of the Pakistani nuclear program and an infamous proliferator of nuclear weapons designs and technology.

"It was 6 April 1978 when we achieved our first centrifugal enrichment of uranium," Khan recalled in a chatty, wide-ranging interview with Pakistani television last week. "We had achieved 90 percent [enrichment] by early 1983."

"I wrote a letter to General Zia on 10 December 1984, telling him that the weapon was ready and that we could detonate it on a notice of one week,"
Khan said.

In addition to a timeline for the Pakistani nuclear weapons program, the Khan interview discusses the costs and logistics involved, and his successful efforts to evade export controls. "They could not outmaneuver us, as we remained a step ahead always," he said.

The interview also provides "interesting information about Pakistan's supply chains, which he says were the same for Iran and Libya as well,"
said Ivanka Barzashka, an FAS researcher who is studying the proliferation of centrifuge technology.

The interview with A.Q. Khan, who was recently released from house arrest, was broadcast in Karachi on August 31. It was helpfully translated from the Urdu by the DNI Open Source Center. The translated interview has not been publicly released, but a copy was obtained by Secrecy News. See "Dr Abdul Qadeer Khan Discusses Nuclear Program in TV Talk Show," Aaj News Television, August 31, 2009:

http://www.fas.org/nuke/guide/pakistan/aqkhan-083109.pdf

CAN A COURT GRANT ACCESS TO CLASSIFIED INFO?

Ordinarily, decisions about granting security clearances and determining whether an individual has a "need to know" certain classified information are made by the executive branch. But a federal judge recently ruled that a court can also make such determinations and can require the disclosure of classified information to a cleared individual even against the wishes of the executive branch.

In an electrifying decision on August 26 in the case of Richard A. Horn v.
Franklin Huddle, Jr., Judge Royce Lamberth concluded that the parties in that lawsuit need to discuss the classified information they possess with their counsel. Judge Lamberth therefore ruled -- against the government -- that counsel in this case have a "need to know" and that they may have access to the classified information that their clients already possess.

"The deference generally granted the Executive Branch in matters of classification and national security must yield when the Executive attempts to exert control over the courtroom," Judge Lamberth wrote.

http://www.fas.org/sgp/jud/statesec/horn082609.pdf

That ruling drew an immediate protest. "The Government respectfully disputes that conclusion as well as the Court's authority to reach it,"
Justice Department attorneys responded on September 2, requesting a stay of Judge Lamberth's order pending appeal.

"The Court is without authority to make a 'need to know' determination in this context," the Justice Department said. "A court may not order the Executive to grant private counsel or any other person access to classified information."

http://www.fas.org/sgp/jud/statesec/horn090209.pdf

At issue are basic questions over the exclusivity of executive branch control of classification information and the court's ability to regulate its own judicial proceedings. Those questions are likely to be presented to an appeals court in the near future.

The government's motion for a stay was naturally opposed both by the plaintiff and the defendants. "The position that the United States has unfettered discretion to decide who is entitled to receive classified information leaves no role whatsoever for the judiciary in accommodating the interests of litigants and ensuring against abuse of discretion,"
wrote attorneys for one of the defendants.

http://www.fas.org/sgp/jud/statesec/horn090309c.pdf