Did Cheney Violate the Espionage Act?

From Former Vice President Dick Cheney's interview summary with the FBI in May 2004 with respect to the leak of classified information involving the covert identity of Valerie Plame.

With respect to the dissemination of information contained in the NIB to the press, the Vice President advised that it is possible to talk about something contained in a classified document without violating the law regarding declassification. For example, the Vice President has made numerous public statements about Iraq's weapons of mass destruction which were based on and, in some cases tracked, his reading of classified information, including theNIE . However, he did not violate any relevant laws or rule making these statements because he did not reveal the confidential sources or methods involved in gathering the classified information. Vice President Cheney advised that he believed it was justifiable to rely on classified information to shape and inform what one says publicly. He further advised that his own public statements at times tracked theNIE and were informed by data within the NIE. Vice President Cheney believed this was a perfectly appropriate way to use the NIE.

At the same time Cheney was offering his "Fourth Branch" of government version as to how the declassification process works, the Department of Justice was prosecuting under the Espionage Act two non-Government officials for doing a whole lot less. In a prosecution that became known as the "AIPAC case," the prosecution’s premise was that non-Government officials who do not possess security clearances, such as lobbyists, reporters, and think-tank specialists, can be criminally culpable for further disseminating information shared with them by Government officials, even if they solely received the information by word-of-mouth and were not necessarily informed in the first place that it was supposedly classified . They dismissed as irrelevant the defendants' position that much of the supposed classified information was classified not because of its substance but rather because of the intelligence sources and methods used to collect the information; and that the defendants had no knowledge of those sources and methods, let alone disclosed them to others.

Thus, according to the standards used by the Department of Justice in bringing the AIPAC case, Cheney is guilty of violating the Espionage Act by virtue of his "numerous public statements about Iraq's weapons of mass destruction which were based on and, in some cases tracked, his reading of classified information."

Actually, as I advised the defense in the AIPAC case, the above is an oversimplification of the classification/declassification process. Yes, it is possible to quote from an otherwise classified document without disclosing classified information. However, to do so requires ensuring that the otherwise unclassified quotation is not source revealing itself. For example, just the mere fact that the U.S. Government knew specific information at a specific point in time could be source revealing itself if there were only a limited number of ways we could learn that information. In the case of theAIPAC defendants' none of the supposed closely held information they were accused of disclosing was source revealing.

Can the same be said for Cheney?

"Universally 'Known' Secrets"

Yesterday, I provided a couple of observations regarding a commentary provided by General Michael V. Hayden, a member of the Public Interest Declassification Board (PIDB) and former Director of NSA and CIA. Hayden stated that Obama was wrong to release the Office of Legal Counsel (OLC) memos on torture.

Hayden's comments highlight all that is wrong with respect to how some in our Government use the classification system. It is also a prime example of what is wrong with the new state secrets privilege policy recently announced by the Obama administration and why both the courts and the Congress must apply greater scrutiny and not blind deference to assertions of secrecy by the executive.

In his commentary, Hayden refers to "activities that are universally 'known' but are still not officially confirmed by the U.S. government." For Hayden, included in these universally known secrets, at least up to the time Obama officially released the OLC memos, were the techniques of waterboarding and other “enhanced interrogation techniques," practices prohibited by both U.S. and international law. Hayden then proudly states that based on a declaration he signed, a judge had agreed in 2008 to allow the government to continue to protect -- on the grounds of national security -- the fact that the U.S. had waterboarded (i.e. tortured) detainees. Finally, in response to his declaration, Hayden quotes the judge as noting "... my job is to defer to the extent appropriate -- and that is substantial -- to the decision of the director of the CIA," and that the judge went on to point out that "there has been a reluctance on the part of the courts to interfere with the discretion conferred by the mandate of the statutes on the CIA."

While the court failed to scrutinize Hayden's claims in this instance, I have no reluctance to do so, especially in view of Hayden's use of the concept of "universally known" secrets as justification for continued classification.

When the government wants to withhold information, it’s fair to ask from whom is the information being withheld. When the government uses the classification system to withhold information, ostensibly it means that there is a reasonable basis to believe that the information can be used by our nation's adversaries to harm us. In this case, the previously withheld information relates to interrogation techniques, to include waterboarding, which we have employed on suspected terrorists. The most common claim has been that if extremists determined to commit violence against Americans (e.g. al-Qaeda) knew our interrogation techniques, (to include their limits) they could better train to resist such techniques in the event of capture.

How reasonable is it then to expect official secrecy to prevent al-Qaeda and others from being able to train to resist such techniques? To begin with, as evidenced by Tomás de Torquemada and the Spanish Inquisition, our intelligence services did not invent torture. In fact, as documented in the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, the "enhanced interrogation techniques originated with the utilization of instructors from the Joint Personnel Recovery Agency (JPRA) who oversee the Survival, Evasion, Resistance and Evasion (SERE) program, and who believed they had "the ability to exploit personnel based on how our enemies have done this type of thing over the last five decades.” As it turns out, the “enhanced techniques” were copied verbatim from an unclassified 1957 Air Force study of Chinese Communist techniques used during the Korean War to obtain confessions, many of them false, from American prisoners. Thus, the very information that Hayden wanted the courts to withhold in the name of national security has long been readily available to our nation's adversaries.

Likewise, many of the detainees upon whom these techniques were employed were subsequently released. Upon return, they were able to tell all about their experiences, to include to those with connections to al-Qaeda and others.

Similarly, there is the report from the International Committee of the Red Cross that had been leaked and which detailed our government's torture of detainees. Hayden dismisses the leak in "that there was a difference between speculation (however, informed or ill-informed it might be) and formal confirmation by the U.S. government."

Such a distinction may be important to Hayden, but it is meaningless to the rest of the world. The absence of an official U.S. confirmation of the universally known secret that the U.S. engaged in torture did nothing to dissuade friend and foe alike from believing what they believed. Hayden's a smart guy, and he cannot possibly believe that in the absence of official U.S. confirmation that al-Qaeda and others would say: "Hey guys, we don't have to train to resist torture anymore because Bush says that they do not torture."

So, if our government had to realize that there was no way they could keep the information regarding interrogation techniques away from our adversaries, and, due to the leak of the ICRC report there was no way to keep it from the rest of the world, just who was being most directly impacted by the withholding of the information?

Based upon the below 2005 press release from the Department of Defense, I believe that it can be readily demonstrated that the real intent was to withhold the information from the American people. In fact, at the same time our government was torturing detainees, it knowingly released the following piece of "disinformation" to the American people:

If you're a Muslim extremist captured while fighting your holy war against "infidels," avoid revealing information at all costs, don't give your real name and claim that you were mistreated or tortured during your detention.

This instruction comes straight from the pages of an official al Qaeda training manual, and officials at the detention facility at Naval Station Guantanamo Bay, Cuba, say they see clear evidence that detainees are well-versed in its contents.

By inferring that all claims by detainees of being tortured were false while knowing that at least some, and perhaps all, were actually true, our own government engaged in active deception of the American people.

Finally, and most tragically, the attitude embodied in Hayden's commentary actually has a significant adverse impact upon the security of our nation and continues to result in an extraordinary cost in terms of American blood and treasure every day. Whether we officially acknowledge a universal known or not, the very conduct enabled by official secrecy not only fails to isolate the extremists of the world, but it actually assists in their recruitment efforts. This is due, in large part, to the worldwide recognition that we violate our own values and ideals, especially as they relate to human dignity and the rule of law. Furthermore, when we withhold information, when we are ashamed of the truth and hide it, we allow the enemy to shape the "truth" in the eyes of the rest of the world, which is always worse than our worst acts.

If one has any doubt as to how the actions taken in the name of national security actually harms national security, all one needs to do is read is the first-person account by David Rohde, a NY Times reporter, of his seven months as a captive of the Taliban in Pakistan. In the account published this past Sunday, Rohde writes of his captors:

Some of their comments were factual. They said large numbers of civilians had been killed in Afghanistan, Iraq and the Palestine territories in aerial bombings. Muslim prisoners had been physically abused and sexually humiliated in Iraq. Scores of men had been detained in Cuba and Afghanistan for up to seven years without charges.

To Americans, these episodes were aberrations. To my captors, they were proof that the United States was a hypocritical and duplicitous power that flouted international law.

When I told them I was an innocent civilian who should be released, they responded that the United States had held and tortured Muslims in secret detention centers for years. Commanders said they themselves had been imprisoned, their families ignorant of their fate. Why, they asked, should they treat me differently?

To paraphrase Hayden, his decision to justify the continued classification of a universally known truth was a political one, not one rooted in national security considerations. If it is to be defended, history should demand that it be defended on those grounds.

"No One" Speaks

Former NSA and CIA Director General Michael V. Hayden, the newest appointed member of the Public Interest Declassification Board (PIDB), published today a commentary in which he states that Obama was wrong to release the Office of Legal Counsel memos on torture.

There are so many objectionable items in Hayden's piece. For now, I'll focus on just two. First, Hayden states that:

Even today there are activities that are universally "known" but are still not officially confirmed by the U.S. government, and no one (emphasis added) takes issue with the wisdom of continuing the policy of official silence.

I, for one, (apparently a "no one") take issue with such wisdom. The continued classification of activities that are universally "known" serves to undermine the integrity of the very system we depend upon to ensure that our nation’s adversaries cannot use truly sensitive national security related information to harm us.

Secondly, Hayden states that :

... to reveal the details of this technique would tie the hands of a president in a future emergency -- since, after all, laws and policies and presidents could always change.

That is precisely the reason why it was appropriate to release those memos -- to ensure that future president's do not inflict torture upon other human beings in the name of all Americans.

I do not know what vision Hayden has for our nation, but for me it does not include a government whose conduct includes:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession ... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official....
– Convention Against Torture, Article 1.1, which, pursuant to our Constitution, is the "supreme law of the land."

Freedom Isn't Free

Updated below:

One administration's attorney general issues the following guidance with respect to implementation of the Freedom of Information Act (FOIA):

The Department of Justice and this Administration are equally committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy.
...
I encourage your agency to carefully consider the protection of all such values and interests when making disclosure determinations under the FOIA. Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.

Another administration's attorney general issues this FOIA guidance:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. ... (A)n agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

Guess which administration sent a letter to the Supreme Court asking the justices to delay consideration of the government's own case in which it is appealing a lower court's decision that the FOIA requires the release of otherwise unclassified photos depicting detainee abuse? It's the same one which issued the following with respect to the FOIA on January 21, 2009:

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.

An administration which has increasingly become "Bush Lite" is proving to be less and less satisfying to those who actually believed the rhetoric.

As disclosed by the ACLU last week, according to a conference summary, House and Senate conferees approved language for the homeland security appropriations bill that, if passed, would grant the Department of Defense (DOD) the authority to continue suppressing photos depicting the abuse of prisoners in U.S. custody overseas. The language described in the summary appears to incorporate an amendment put forth by Senator Joe Lieberman (I-CT) that would allow DOD to exempt the photos from the FOIA. The photos were ordered released by a federal appeals court as part of an American Civil Liberties Union FOIA lawsuit.

As reported by Fox News: Due to "recent and significant legislative developments" Solicitor General Kagan asked the justices to delay consideration of the government's own case in which it is appealing a lower court's decision that the FOIA requires release of the photos.

The Supreme Court took no action Tuesday on a controversial appeal asking the justices to keep under wraps classified (sic) photographs of War on Terror detainees that have been likened to the infamous pictures at Abu Ghraib prison.

The court's consideration of the case coincides with congressional efforts to pass a law giving the secretary of defense the authority to exempt the photographs from Freedom of Information Act disclosures. A measure to do that passed a joint conference committee of the House and Senate last week.

The justices were scheduled to discuss the matter in their closed-door meeting Friday but may have been persuaded to postpone judgment by the government, which last week sent a letter to the court asking them not to move on the case.

...

But the letter shows the Obama administration's top priority is keeping the pictures sealed - and that it believes that can be better accomplished by legislative means than court action.

Kagan's letter isn't the first unusual move from the government in this case. Earlier this year, after saying his administration would not appeal to the high court, President Obama reversed course.

Imagine the outrage if it had been the Bush administration that had endorsed such an affront to the FOIA?

Update:

Per this report:

The Obama administration indicated in court papers it may appeal a federal judge's ruling ordering the Justice Department to release portions of the transcribed interview between former Vice President Dick Cheney and Patrick Fitzgerald, the special prosecutor appointed to probe the roles Bush administration officials played in the leak of covert CIA operative Valerie Plame Wilson six years ago.

Talk about presumptuous!

A New Balancing Test

One of the guiding principles in our democratic form of government is the notion of pluralism, first expressed by James Madison in his first and most celebrated essay, Federalist No. 10. Political pluralism permits the peaceful coexistence of different interests, convictions and lifestyles. Unlike totalitarianism or particularism, pluralism acknowledges the diversity of interests and considers it imperative that members of society accommodate their differences by engaging in good-faith negotiation. A pluralistic society does not deal with public policy issues in terms of black and white. In the words of Madison:

Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens….

Thus, inherent in our pluralistic form of government is the notion that the “national interest” is multifaceted. National security is one of those facets, but it is by no means the only.

In dealing with national security issues, it is important to keep in mind that “We the People” entered into the social compact known as the U.S. Constitution for more reasons than to just provide for the “common defence.” As set forth in the Preamble, our society established the Constitution of the United States “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….” Providing for the “common defence,” national security in today’s parlance is but one of multiple national interests; it is not even listed first.

Nonetheless, the sophisticated political thinking of our 18^th century founders gave way to the simplistic view of Cold War America in which we had committees of Congress investigating “anti-American activities.” It persisted into the first decade of this century when our foreign policy consisted of little more than “either you are with us or against us.” A number of recent initiatives dealing with information relating to national security continue this crude, binary view of our political society.

Today’s Washington Post has an article on how the Obama administration has given Congress a draft of a proposed shield law, designed to protect journalists from having to disclose their confidential sources, that toughens its position on controversial national security sections. It goes on to state that:

Under the administration's language, a reporter could be compelled to reveal his or her sources if public disclosure of the sources' information "caused or [was] reasonably likely to cause significant and articulable harm to national security" (emphasis added). In such cases, there would not be a "balancing test," in which a judge weighs the importance of the public having the information against the damage it could cause national security. The government would only have to show the judge, probably in a closed session, that the information was protected and "reasonably likely" to cause the damage.

In addition to the above, last week the administration released new standards governing assertions of the state secrets privilege in judicial proceedings. Specifically, the new standards state in part:

The Department will defend an assertion of the state secrets privilege (“privilege”) in litigation when a government department or agency seeking to assert the privilege makes a sufficient showing that assertion of the privilege is necessary to protect information the unauthorized disclosure of which reasonably could be expected to cause significant harm to the national defense of foreign relations (“national security”) (emphasis added) of the United States.

Finally, this week Secrecy News provided access to a recent draft copy of a new executive order governing the classification of national security information. This draft perpetuates the current standard for classification to the effect that:

The original classification authority determines that the unauthorized disclosure of information reasonably could be expected to result in damage to the national security…

Each of these extraordinarily significant initiatives starts off with the same faulty premise; i.e. either information causes damage to national security or it doesn’t. Life, of course, is not so simple. For almost any piece of information, the unauthorized disclosure of which could cause damage to national security, it can also be said that the withholding of the information from disclosure could also damage the “national interest” – not just with regard to promoting "the common defense” but also undermine our efforts to “establish justice, insure domestic tranquility, … promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….”

Thus, each of these initiatives to protect information that can damage our national security must include a new balancing test. This balancing test is not where some official weighs the importance of the public having the information against the damage it could cause national security. Rather, the official should be required to weigh whether the damage to our national security caused by the unauthorized disclosure of the information exceeds the damage to our “national interest” caused by the withholding of the information. The national interest would, of course, include national security but, like our Constitution itself, recognize that there are other national interests than just the “common defence."

I believe James Madison would agree with such an approach, as should our President and Congress.

State Secrets, Informed Judgment, Charlie Rose and Sloppy Trade Craft

Updated below:

When the government asserts the state secrets privilege in a judicial proceeding, and asserts that the disclosure of information would pose a “reasonable danger” to national security (or, as of today, “significant harm” to the national defense or foreign relations), what obligation should the government be under to make an informed decision that not only can the information be appropriately classified, but that it should be classified? Furthermore, in asserting this privilege, what should be the consequences when the government itself fails to protect that information? Should it still be allowed to assert the privilege?

As discussed in an earlier post, the current framework for classification does not require that all information which can cause harm to the national security should be classified. Agencies are expected to apply judgment and discretion in making informed decisions to classify information originally as well as in making decisions to continue classification.

In asserting the state secrets privilege, a common law rule of evidence, the Executive branch of the government seeks to secure dismissal of litigation brought to protect important constitutional and statutory rights. In doing so, the Executive is often obscuring governmental policies or actions that abridge those rights. Thus, when asserting this privilege, is it reasonable to expect the Executive to take on the additional burden of ensuring that informed judgment is being applied to the decision to continue the classification of the information involved in the first place? Based upon recent government action in a case involving assertion of the privilege, the Executive branch apparently does not.

Such is the situation in the extraordinary case of a former DEA agent who has accused a CIA operative of illegally bugging his home while serving in Burma in the early 1990’s. While the very nature of the state secrets privilege makes it difficult to discern what the “secret” is that the government is attempting to protect, in this case (Horn v. Huddle, et. al.), one of the state secrets turns out not to be a secret in the first place and another may quite possibly be a highly dubious secret.

The first assertion of the state secrets privilege dealt with the identity of the CIA operative. Both a Federal District Court (in 2004), and a Court of Appeals (in 2007) upheld the government’s assertion of the privilege in this instance based upon the claim that the identity of the CIA operative was classified. The only problem is that in 2002, the CIA “lifted” and “rolled back” the operative’s cover to his entrance on duty date with the CIA over 20 years earlier (which meant his employment by and assignments with the CIA were declassified). Much has been written about the judge’s finding that the Executive branch's conduct constituted a “fraud on the court” (i.e. “fraud which is directed at the judicial machinery itself”) and I will not address that aspect here. Instead, I want to focus on the original decision to “lift” and “roll back” the operative’s cover.

The use of cover for overseas operatives of our nation’s intelligence service is clearly appropriate, as is the need to protect the cover by means of classification, even after the individual no longer serves overseas (e.g. Valerie Plame). However, it is not unusual after a careful assessment to declassify an operative’s cover and even role it back, especially after an operative has assumed a senior position within the Agency. Such apparently is the situation with the CIA operative in this case, Arthur M. Brown, who has been reinstated as a defendant in this lawsuit. Prior to his retirement from the CIA, Brown was the East Asia Division Chief within the National Clandestine Service. His cover was declassified in 2002, presumably through the application of an informed judgment by Agency personnel.

Who knew what when is obviously of significant import and the District Court judge in this case is considering sanctions against five current and former agency lawyers and officials, including former CIA director George J. Tenet, for withholding key information about the operative's covert status. However, even disregarding this issue, there remains a significant unanswered question – i.e. before making the extraordinary assertion before the Court of Appeals in 2007 that disclosure of Brown’s identity would pose a “reasonable danger” to national security, why did not the government make an informed decision that this was still the case? Apparently, in making this assertion, they applied zero judgment. At any step of the way if anyone on the government’s side asked the simple question “should this information still be classified,” the answer would have been apparent to all. In fact, no sensitive intelligence sources or methods had to be employed to ascertain that 2 years prior to the Court of Appeals hearing, Brown appeared on the Charlie Rose show, clearly identified as a former CIA official and current Senior Vice President of Control Risks Group, an international consulting company. Thus, the government clearly asserted the privilege in this instance because they thought they could, not because they determined they should.

The second issue dealt with Horn’s claims that in late November 1992, while he was out of town, someone entered his apartment in Burma and replaced a rectangular government-issued coffee table with an oval table without consulting him. Horn was later told that his “original coffee table was needed to complete a sofa set at another residence.” Horn characterized this conduct as “peculiar”— primarily because the previous table perfectly matched his furniture set, while the replacement did not. However, he later came to believe that the oval table was a listening device, after discovering that Huddle and Brown were privy to details of conversations he’d had while in the room where the table resided.

The above allegation was the subject of an IG investigation – however, the government has asserted the state secrets privilege for many key parts to two IG reports, thus allowing the government to claim that Horn’s allegations are “unsupported assertions.” However, if Horn’s allegation is, in fact, supported by portions of by the IG Reports, that would mean that government personnel, by clumsily replacing a rectangular table with an oval table, employed exceedingly sloppy trade craft. Under such circumstances, should the government be allowed to assert the privilege even if it is the government that compromised the intelligence method in the first place?

The state secrets privilege is an absolute power. Prior to asserting it, the Executive must be required to apply much greater diligence than it has in the case. Apparently, the Obama’s administration’s new standards do not require such diligence in that, as quoted in Secrecy News, in a brief filed last week the government stated “the assertion of the privilege in this case satisfies the standards in the new policy concerning the applicable legal standards, narrow tailoring, and limitations on the assertion of the privilege. Moreover, the privilege as invoked in this case has been carefully reviewed by senior Department of Justice officials, who have determined that invocation of the privilege in this litigation is warranted."

The finding of "significant harm" in the event the information is disclosed should be insufficient alone to assert the state secrets privilege. That is tantamount to simply asking the question "can this information be classified?" The standard (or hopefully legislation) must go further and ensure that the question "should this information continue to be classified?" is asked as well -- especially in view of the impact the assertion of the privilege can have on the rights of the citizenry. The safeguarding of our civil liberties requires nothing less.

Update:

Per Josh Gerstein at Politico on September 30, 2009:

A court filing this afternoon discloses "an agreement in principle" to settle the case of Horn v. Huddle, a lawsuit brought fifteen years ago in which the Drug Enforcement Agency representative in Burma, Richard Horn, accused the CIA station chief and chief of mission of spying on him.

While this turn of events may fail to provide a legal answer to the above questions, it appears to provide a political answer.

Proposed Obama Order Takes Us Back to the Reagan-era

Updated below:

In today's Secrecy News, Steve Aftergood provides access to an August 4 draft of the executive order (pdf) that was prepared by an interagency task force in response to a May 27 memorandum from the President. As noted in Secrecy News, the draft is still subject to revision, and has not yet been formally transmitted to the White House for review and approval.

Aftergood provides an excellent analysis of the draft and I agree it has a number of notable improvements to the current framework. I will not repeat such observations here. However, there is one point he makes that I believe merits further expansion. Specifically, the draft order affirms that "no agency may declassify information that originated in another agency... without the consent of the originating agency" (section 3.1f). Similarly, the order goes on to state that "... records containing classified information that originated with other agencies or the disclosure of which would affect the classified interests of activities of other agencies ... shall be identified ... for referral to those agencies" (section 3.3(d)(3)). Finally, even the National Declassification Center proposed in this draft order at the specific direction of the President will not have the authority to declassify such information but the information will instead be "referred" back to the "originating agency" (section 3.3(d)(3)(A).

This provision, rather than "demonstrating our commitment to open government" as heralded in the preamble to the draft order, actually hearkens back to the era of Ronald Reagan who set forth one of the most regressive classification policies in history when he promulgated Executive Order (E.O.) 12356, the predecessor to Bill Clinton's E.O. 12958. In Reagan's order, "information shall be classified as long as required by national security considerations" (section 1.4(a)) and would be marked with " the date or event for declassification, or the notation 'Originating Agency's Determination Required,'" commonly referred to as OADR (section 1.5(a)(4)).

Clinton's 1995 order withdrew this significant impediment to the timely declassification of information and, except for information that revealed the identity of a confidential human source or a human intelligence source, required that a specific date or event be established for the declassification of all classified information, even that information originally exempt from automatic declassification. Furthermore, once the specific date or event for declassification was established, no further authorization was required from the "originating agency."

However, George W. Bush's revision to E.O. 12958 in 2003 effectively gutted this provision and led to a de facto re-institution of OADR. Specifically, the Bush order stated that "records containing information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies shall be referred for review to those agencies and the information of concern shall be subject to automatic declassification only by those agencies." These words are echoed practically verbatim in the proposed Barrack Obama order.

In carrying forth this particular provision into the rewrite, just about every other declassification provision in the proposed Obama order becomes moot. Nothing of substance gets declassified unless the originating agency determines that it should be declassified. Not only is this concept regressive, it also defies common sense.

For example, thousands of times every day, individuals from one agency will use "information that originated with other agencies or the disclosure of which would affect the interests or activities of other agencies" when creating documents. For example, an analyst at DoD may routinely create documents which use information originated by the CIA, or otherwise affects the CIA's interests. Sometimes the newly created documents created are treated as unclassified; other times they are treated as classified. How those documents are treated is entirely dependent upon the DoD analyst, the individual creating the documents, not the agency that originated the information or whose interests are affected by the information.

In this example, the entire "front-end" of the classification system, when the information is most current and presumably most sensitive, is based upon the premise that whenever the analyst creates a document, even if the analyst uses information belonging to or affecting the interests of another agency, the analyst will take the proper action to classify or not to classify the record. The analyst's actions in this regard will be based upon classification guidance provided by the agency to which the information belongs or who is otherwise affected by the information -- in this case, the CIA. The analyst is never required to submit the newly created document to the CIA for their review prior to promulgation to ensure that the classification designation is correct.

Notwithstanding the above, in this example, decades later, even though the DoD analyst created the document, per the proposed Obama order, neither that analyst, nor any other DoD official would be permitted to declassify the document, even with declassification guidance provided by the CIA. Instead, while the classification system employs a practical, risk management approach to classification on the "front-end" employing delegation through classification guidance, it refuses to mandate the same delegation through classification guidance on the "back-end," when the information is presumably less sensitive.

While this proposed order is a long way from true reform of the existing classification system, it should, at the very least, not represent a return to the regressive Reagan-era approach to declassification. President Obama would be well-served if he was presented with a proposal that, as a minimum, permitted agencies, to include the National Declassification Center, to declassify information based upon declassification guidance provided by the agency that originated the information or whose interests are otherwise affected by the information. Such a risk management approach has consistently worked for the "front-end"of the classification process; there is no reason why it cannot work for the "back-end" of the process.

As noted previously, the President has committed to making his administration the most open and transparent in history. Hopefully, he was not referring only to the history of this millennium.

Update:

The proposed new order regarding classification referenced above is in response to the President's May 27 memorandum which, among other things, directed that any recommendations and proposed revisions address:

Appropriate classification, safeguarding, accessibility, and declassification of information in the electronic environment, as recommended by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction and others (emphasis added).

From the Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction

The DNI should move toward a culture of “stewardship” of intelligence information instead of ownership. Federal government information belongs to the nation and is entrusted to the Intelligence Community in order to pursue the nation’s best interest.

From the report of the "9-11 Commission:"

The culture of agencies feeling that they own information they gathered at taxpayer expense must be replaced by a culture in which the agencies instead feel they have a duty to the information -- to repay taxpayers' investment by making that information available.

From the proposed new order in response to the President's direction:

No agency may declassify information that originated in another agency... without the consent of the originating agency. ... Records containing classified information that originated with other agencies or the disclosure of which would affect the classified interests of activities of other agencies ... shall be identified ... for referral to those agencies.

Perhaps some agencies didn't get the memo?

New State Secrets Policy: Fatal Flaws Unworthy of Support

Yesterday, the Obama administration released details of a "new policy" with respect to the invocation of the state secrets privilege. I wrote about that development here.

Last year, I had the privilege of joining over 350 other open government advocates in endorsing the recommendations of the Moving Toward a 21st Century Right-to-Know Agenda from November 2008. In this regard, I was also a member of the working group which developed the initial draft of the section dealing with "National Security and Secrecy."

This section highlighted the increasing use by the Executive branch of the state secrets privilege, a common law rule of evidence, to secure dismissal of litigation brought to protect important constitutional and statutory rights and that in doing so, the Executive is obscuring governmental polices that abridge those rights. The report went on to state that:

Invocation of the state secrets privilege is entirely in the hands of the executive branch. It decides whether to assert it in a particular case, the stage of the litigation in which the privilege will be asserted, and the facts that it will seek to shield from disclosure by invoking the privilege. It also decides whether to assert that a case must be dismissed in its entirety to protect the privileged information or whether to instead agree that the case can go forward without the privileged information or with substituted information.

In this reagrd, the report went on to make a number of short and long-term recommendations. Specifically:

Short-Term Recommendations:

1. The president should declare that it is the policy of his administration never to invoke the state secrets privilege to cover up illegal or unconstitutional governmental conduct and that the state secrets privilege will be invoked only as a last resort and only by the head of an agency who has determined that the public interest in disclosure of the information is outweighed by the risk to national security. The president should further declare that it is the policy of his administration to recognize that individuals must have a judicial remedy for violations of their constitutional rights and that invocations of the state secrets privilege must be consistent with that recognition. He should order the Attorney General to convene an interagency working group to implement the policy and direct the Department of Justice to report invocations of the state secrets privilege to Senate and House Committees on the Judiciary. The new policy on use of state secrets privilege should recognize that:

• Judges may review in camera and ex parte evidence claimed to be privileged;
• The privilege only extends to evidence when a judge has determined that there is a reasonable likelihood that disclosure would cause substantial harm to national defense or diplomatic relations;
• Discovery of non-privileged information is permitted in cases in which the privilege has been invoked;
• Special masters and/or technical experts may be used to assist with evaluating privilege claims; and
• Direct that agencies should cooperate in crafting substitutes for privileged information.

2. The president should direct the Attorney General to review within 100 days each case in which the previous administration asserted the state secrets privilege. The review should assess whether the previous assertions of the privilege can be withdrawn with respect to disclosure of particular pieces of evidence, as well as whether the case can move forward with unprivileged information that is substituted for the privileged information. Because closed cases cannot be reopened, consideration of withdrawing previous assertions should only apply to cases that are open at the time of the review. The results of this review should be reported both to Congress and to the public.

Long-Term Recommendation:

3. The president should work with the relevant committees of Congress to redress improper invocations of the privilege by the previous administration and to ensure that future invocations of the state secrets privilege are properly limited. Many groups believe the only effective long term solution to stem abuses of the state secrets privilege is enactment of legislation establishing checks and balances on invocation of the privilege, such as Sen. Kennedy's State Secrets Protection Act (S. 2533) or Rep. Nadler's State Secret Protection Act (H.R. 5607). Other groups believe that as courts created the state secrets privilege, the responsibility to exercise oversight and establish boundaries for the privilege must also fall to the courts. Any state secrets legislation that is pursued should codify the new policy described in (1 above) should be a collaborative effort between the president and Congress, should be informed the results of the interagency review called for in (1 above) and should not preclude the courts from exercising their own responsibility to establish boundaries for the privilege.

A principal sponsor of the 21st Century Right-to-Know Agenda, the respected public advocacy group OMB Watch, yesterday indicated their "strong support" for the new state secrets privilege policy. In this post, OMB Watch indicated that "this unparalleled policy echoes many of the recommendations made by ... the 21st Century Right-to-Know Agenda". I disagree and I believe that a plain text reading of the agenda's recommendations and the administration's memo clearly indicates a substantial disconnect between the two. In a subsequent post, OMB Watch appears to clarify their initial position but still maintains that "the result is a net positive." I must continue to disagree.

For me, the absence of judicial review is a fatal flaw in this policy. Furthermore, the administration's "new" policy is clearly calculated to forestall legislation in this area, and with the "strong support" of respected organizations such as OMB Watch, it has a very good chance of accomplishing just this (especially in view of Senator Leahy's comments yesterday). Therefore, in addition to the fatal flaw above, this policy will be just a pen stroke away from being revised at some future time by either this administration or some future administration.

Any reforms such as the above must be institutionalized through legislation and must include judicial review. The current administration did not even see fit to institutionalize this policy through Executive order. As such, its just words on paper.

I believe support of this policy is a mistake and, as an original endorser of the 21st Century Right to Know Agenda, is not in consonance with its recommendations. I encourage all individuals and organizations who support open government to speak out against this new policy.

We must expect more from this administration. If not them, then who?

Heads I Win; Tails You Lose

Updated below - update II:

According to the New York Times today, the administration will soon announce a new policy regarding claims to the state secrets privilege by the Executive branch. In essence, before the Executive branch can make such an assertion, it must convince itself that it is correct.

Is it possible to lose an argument with yourself? Apparently, the Obama administration wants us to think so and assure us that this new policy constitutes real reform in the arena of official secrecy. They are wrong on so many counts.

First, the President's authority to restrict the dissemination of information in the interest of national security is not an absolute authority that belongs to the President alone, such as the power to pardon. In fact, nowhere is this authority enumerated in the Constitution. Instead, all three co-equal branches of the Federal government have agreed that this authority is inferred by virtue of the President's Article II authority as commander-in-chief of the armed forces and as chief executive responsible for foreign relations. However, the President's constitutional authority in these areas is not absolute -- it is shared with the Congress.

Thus, it is essential that any assertion that the state secrets privilege applies in a specific instance be subject to independent review by the Courts. According to the Times, by virtue of the administration's new policy:

A judge could request access to particular pieces of underlying evidence. The policy is silent on whether the government would comply, and officials said such requests would be evaluated on a case-by-case basis. One of the controversies surrounding the privilege is that sometimes judges accept executive assertions about classified evidence without independently examining it.

The administration apparently anticipates that most if not all judges will be more than willing to simply accept assertions by the Executive. The Congress cannot allow this to happen and must press on to establish a statutory framework for invocation of this privilege which includes an independent judicial review.

The most compelling justification for such an approach are the results of habeas corpus hearings for detainees at Guantanamo following Executive branch loses in both the Hamdan and Boumediene Supreme Court cases. For years, both the Executive and the Congress had resisted providing due process to such detainees on grounds that classified intelligence which could not be disclosed even to judges behind closed doors proved that such detainees were "the worst of the worst." After being compelled by the judiciary to provide due process, in the 33 cases heard to date in which an independent review of the classified national security information was conducted by the courts, in 28 of the cases the presiding judge ruled that the government's evidence was insufficient to legally justify continued detention.

With a "batting average" of .150, the Executive branch couldn't even secure a position in the lineup of the Washington Nationals.

Our money may say "In God We Trust." When it comes to Executive assertions of official secrecy, our motto must be "Show Me (or at least the judge) the Evidence!

Update:

The Department of Justice (DoJ) just released a copy of the Attorney General's memo governing new policies and procedures for invoking the state secrets privilege. Curiously, the press release accompanying the memo states:

Facilitation of Court Review – The policy ensures that before approving invocation of the state secrets privilege in court, the Department must be satisfied that there is strong evidentiary support for it. In order to facilitate meaningful judicial scrutiny of the privilege assertions, the Department will submit evidence to the court for review.

Notwithstanding the above assertion in the DoJ press release, there is nothing in the memo which address facilitating court review. Instead, a footnote acknowledges that "it is also possible that a court may require the Government to satisfy the standards for invoking the privilege in criminal proceedings. ... In such instances, requests to submit filings to satisfy that standard shall be directed to the National Security Division."

So, we have a press release that is not supported by the underlying evidence i.e. the memo. Yet, we are supposed to just trust their assertions?

Update II:

According to statistics compiled by David H. Remes, a habeas lawyer, about 200 detainees have filed suit under habeas corpus through the courts. The government has lost 30 of 38 habeas cases in U.S. District Court, with the judges often citing a lack of evidence to justify continued incarceration. As such, Executive branch lawyers are now "batting" .210. (h/t Glenn Greenwald)

90% Reduction? How about 98%!

Updated Below:

The Washington Post today has an article on how they:

agreed to a one-day delay in publicizing the report by Gen. Stanley A. McChrystal, the top U.S. and NATO commander in Afghanistan, and that the paper's top editor engaged in a lengthy discussion Sunday with three top Defense Department officials in a meeting at the Pentagon.


... officials strongly objected to the publication of the full report, telling (Post representatives) in a conference call on Saturday that "if we publish it as is, it could endanger the lives of troops."

After the Pentagon meeting Sunday with (Post representatives), administration officials "did a wholesale declassification of 98 percent" of the document, ... while The Post agreed to withhold certain operational details.

Since neither the Post nor the Pentagon has released a true redacted version of the original report, it is impossible to independently confirm the Post's representation that the public, unclassified version of the report represents 98% of the original document. It is noteworthy that the Pentagon did not release a declassified version of the original report and instead reissued the report in an unclassified format. If they had declassified the report as written with redactions, the original classification markings would be readily available for all to see, as would the amount of information redacted.

It would be exceedingly useful if either the Post or the Pentagon would release a true, redacted copy of the original report. Not only then would all be able to confirm the Post's representation that only 2% of the document remained classified, but it would also be able to ascertain how restrained or unrestrained McChrystal's command was in applying classification to the original report. All too often, the phrase "endanger the lives of troops" is bandied about too freely as an excuse for the government to restrict the dissemination of information of critical importance to the nation's citizenry who are expected to bear the burden as the Afghan War enters its 9th year.

As McChrystal himself states in the "Commander's Summary" section (page 1-3) as well as elsewhere in the report when setting forth a new strategy; "These concepts are not new." There is absolutely nothing in the unclassified version of the report that has not been said before by either McChrystal or other national leaders, let alone any information that can come close to endangering the lives of the troops. What truly endangers the troops' lives is the fact that after eight years of war, our national political and military leaders are still floundering as they attempt to craft a strategy to achieve success in Afghanistan.

Rather than attempting to conceal the abysmal state of our failed strategy in Afghanistan, the administration would be better served to ensure the widest possible dissemination of this information to ensure the fullest debate possible as to whether or not this nation is to continue to engage in the brutality of war in that part of the world. Public debate about issues relating to health care reform is well and good, but national security policy decisions whose true costs in both blood and treasure dwarf anything on the domestic front deserves as much, if not more, engagement with the American people in an honest dialogue as to what has gone wrong in the past and what is the likelihood of achieving success in the future. I cannot think of a more fundamental decision that should never be made by our national leaders behind closed doors.

Furthermore, in an earlier post I set forth a new Presidential vision for limiting government secrecy. In it, I stated that President Obama must declare a vision to reduce the amount of information classified by our government by 90% from current levels. If the Post's representation that the portion of the McChrystal report claimed by the Pentagon to be truly classified amounted to only 2% of the original, than perhaps the President should up his vision to reduce classification by 98%.

Ironically, according to McChrystal's assessments, over-classification is directly impacting the success of the war strategy itself, specifically with respect to Strategic Communications. Page D-6 of the report states:

Declassification Authority for ISR/WSV (Intelligence, Surveillance, Reconnaissance / Weapons' System Video)

There has been consistent recognition of problems in using visual imagery, particularly ISR and weapons' system video, and other operational information for StratCom (Strategic Communications) purposes. Every effort must be made to identify, declassify, and exploit such material in a timely manner.

It is reassuring that there has been a "consistent recognition of the problem." It is disappointing that the problem has not been solved. This is but one more example of how classification actually harms national security. It is also one more reason why the President needs to mandate a 90% reduction in classification. The fact that a senior combatant commander can not get declassified the information necessary to discharge his wartime responsibilities is the best example that the classification system cannot reform itself. It requires firm leadership from the President on down.

Update:

With regard to General McChrystal's difficulty in getting weapons' system video declassified, at least it demonstrates that Reuters is not the only one being stiffed armed by the Pentagon in its attempts to get such video declassified as discussed in this earlier post.

Back to the Future

The other day, the Department of Defense (DoD) proudly heralded new information-sharing access to help select state and local fusion centers combat terrorism. In its press release, DoD stated:

Under this initiative, select (emphasis added) fusion center personnel with a federal security clearance will be able to access specific (emphasis added) terrorism-related information resident on the DoD Secret Internet Protocol Router Network (SIPRNet)—a secure network used to send classified data. This classified data will be accessed via DHS’ Homeland Security Data Network (HSDN). DHS will be responsible for ensuring that proper security procedures are followed.

…

State and major urban area fusion centers provide critical links for information sharing between and across all levels of government, and help fulfill key recommendations of the 9/11 Commission.

Unfortunately, eight years later and DoD has gotten it backward. The 9-11 Commission did not specifically identify the lack of access by State and local officials to classified information as the problem. Rather, it stated that first, the persistent challenge of over-classification must be addressed. Second, the archaic notion of “need-to-know” must be fixed. Finally, a better balance must be restored between security and shared knowledge. It has been eight years since the attacks of 9-11 and yet none of these long-standing deficiencies have been tackled; and this DoD initiative does not even begin to address any of the above problems identified by the 9-11 Commission.

If over-classification was seriously addressed, DoD would discover that it did not need to give State and local activities access to information resident on the military’s classified command and control system.

Second, if over-classification was seriously addressed, DoD would not restrict its sharing of knowledge with “select” state and local activities. Furthermore, it would find that it did not have to restrict access by State and local activities to "specific" terrorism-related information. The DoD initiative is actually the antithesis of the solution identified by the 9-11 Commission and is emblematic of how agencies continue to needlessly hang on to the cold war-era principle of need-to-know.

Finally, State and local activities do not need access to classified information which they, in turn, cannot share with either uncleared State and local officials or the public. Rather, they and the rest of the Federal government must share knowledge, i.e. actionable information, with state and local officials. If the serious challenge of over-classification was addressed in a meaningful manner, State and local activities would actually be provided access to not only to more information, but also information with which they can actually do something – such as share with officials and the public, as appropriate.

Eight years later and this DoD “initiative” is actually more of the same. And eight years later, the current administration does not plan to address over-classification in a meaningful way anytime soon.

Where is the outrage?

Classified "Stuff"

Updated Below:

"Stuff" happens, as the saying goes, especially in war. When a nation sends the children of some of its citizens into combat and expects them to use lethal violence against fellow human beings, oftentimes a split-second decision to employ such violence will prove wrong. It is a totally inevitable consequence of a nation's decision to unleash the brutality of war.

The young soldiers who, through circumstances beyond their control, find themselves in a position where they have made a split-second decision which later proves wrong are often left in solitude as they struggle to reconcile reality with the intent of their actions. As with so many tragedies of war, the rest of our nation's citizenry continue on in ignorance , either self-imposed or forced upon them by their government, of the actions done in their name.

Such is the case as reported in today's Washington Post which provided new details surrounding the killing of two journalists in Iraq. According to the article:

A new book by a Washington Post reporter provides a graphic, second-by-second description of the U.S. military's 2007 killing of two Reuters journalists in Baghdad, an incident that the news organization says it cannot investigate fully because the Pentagon has withheld key records of the event.

The Reuters photographer and driver were carrying cameras and walking with a group of Iraqi men, some of whom appeared to be armed, when a U.S. helicopter crew mistook them for insurgents...

Reuters has been pressing the U.S. military for more than two years to turn over all materials containing information about the shootings on July 12, 2007, of its staff photographer Namir Noor-Eldeen, 22, and driver Saeed Chmagh, 40, in the helicopter strike in a contested neighborhood of East Baghdad.

...

But the U.S. military has withheld key information on the 2007 shootings on the grounds that it is classified, and has not released to Reuters a video taken from the gunship that captures the complete sequence of radio communications and imagery that unfolded on the streets below.

...

Soon after the shootings, Reuters submitted a request under the Freedom of Information Act for all documents and materials about the incident, Kim said. In April, the U.S. Central Command, which oversees the U.S. military in Iraq, said it had identified eight documents but was withholding two because they were classified and released six others in redacted form, with classified portions blacked out.

Reuters appealed in June, saying the information the military released was incomplete, challenging the decision to classify it and asking for an expedited decision. In July, the Pentagon rejected the request to expedite the appeal, Kim said. He said one of the documents released contains grainy photographs that appear to be captured from a helicopter video, which Reuters is seeking to obtain.

"It's difficult to understand whether the investigation is coming to sound conclusions without actually seeing the evidence," he said. "It is hard to make heads or tails out of the screen grabs from the video, so we would like to see the video . . . the actual unedited version of what happened on the scene."

Frank Smyth, the journalist security coordinator for the CPJ, said the U.S. military has not made public several other investigations involving the deaths of journalists killed by U.S. forces, and said that more transparency is important both for accountability and for preventing such incidents in the future.

Based upon the Post's reporting, it appears that the Pentagon is withholding Apache gunship video on the grounds that it is classified. It is difficult to imagine how such video can be appropriately classified. Per the governing Executive order for the classification of national security information, the only basis for such classification would be that the information concerned military plans, weapons systems, or operations.

Taking each in order, it should be safe to say that the U.S. military does not have any "plans" to kill journalists or other innocent individuals, thus ruling out military plans as the basis for classification. Secondly, the Apache helicopter is a 35-year-old weapon system, and thus cannot in the remotest of situation be considered state-of-the-art. Besides, even a cursory Internet search reveals numerous examples of Apache gun camera video being posted to the web. Finally, this incident involves a military operation from over two years ago. It is difficult to justify that such an incident could be legitimately considered to be classified so long after the event.

The same governing Executive order clearly states that: " In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;"

When classifying information, it is usually the "fact of" that justifies official secrecy. This instance involving gun camera video appears to be yet another situation where the government is not classifying the "fact of" but rather the images or other records that substantiate what is otherwise an unclassified fact. This is the ultimate in form over substance.

It is time for the Pentagon to do the right thing in accordance with the governing direction from the President and release the gun camera video in order to allow all our nation's citizens to, as Reuters chief counsel Thomas Kim said, "understand the basis on which the military concluded that the shooting was justified." There is no legitimate national security basis which the government can use to impose continued ignorance on the part of the American people, and the journalists' families, as to what exactly happened to these two individuals.

Update:

The increasing tendency on the part of the government to control access to images as opposed to knowledge of facts such as in the instance above is, in some regards, a more nefarious and cynical form of official secrecy. Whether it is images of official ceremonies for fallen warriors to include flag-draped coffins, pictures of the grievously war-wounded, videos of "enhanced interrogation sessions," photos of detainee abuse, and the like, the government is increasingly attempting to control access to images. By doing so, the government in effect takes the position that while there may be no basis to deny knowledge of the facts of a particular situation, it will nonetheless attempt to control or even preclude Americans' understanding of the facts. Thus is the power of images and thus is the abuse of official power when the government attempts to deny the people access to images of otherwise unclassified events.

Transparency, Collaborative and Participatory Defined

The below is a follow-up this earlier post.

President Obama, January 20, 2009:

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.


Mirriam-Webster dictionary definition of transparent, participatory, and collaborative:

Transparent -- characterized by visibility or accessibility of information...

Participatory -- providing the opportunity for individual participation (i.e. to take part) <participatory democracy>

Collaborative -- to work jointly with others or together especially in an intellectual endeavor

Obama administrative operative definition of transparent, participatory, and collaborative based upon a September 2, 2009 reply from General Jones:

Thank you for your letter of August 1... However, we also believe it is essential to preserve the confidentiality (emphasis added) of the President's deliberative process regarding these complex issues that stem from the President's constitutional authority to protect the national security.

A number of observations based upon General Jones' reply and my almost 35 years of experience within the national security establishment.

1) Beware of individuals who talk of "authority" vice "responsibility." We have just lived through 8 years of an administration that saw authority as an end in and of itself vice a means to address the public good. Looks like we are in for more of the same when it comes to national security issues that invariably translate into the sacrifice of American blood and treasure.

2) Confidentiality apparently trumps transparent, participatory, and collaborative.

3) Whenever we wanted to blow off a member of Congress or the like, the short hand phrase was: "send them a letter thanking them for their interest in national security."

4) I believe my earlier question was answered -- apparently this administration was never genuinely interested in allowing the public to enter the public policy arena with the ability to make a substantive impact. Instead, they have simply been conducting a sideshow devoid of any real possibility to influence public policy of grave importance to our nation's well-being.

5) Notwithstanding the President's commitment to making his administration the most open and transparent in history, he apparently was only referring to the history of this millennium. As pointed out in the original letter to General Jones, "in 1993, public disclosure of a near-final draft of the executive order on classified national security information elicited substantial public commentary and contributed to significant revisions of Executive Order 12958 prior to its formal promulgation by President Clinton." Thus, while Obama may transcend Bush on a few issues dealing with official secrecy, he is still trailing Clinton.

6) This administration has apparently given up on any "fundamental transformation of the classification system" -- at least during its first (and perhaps only) administration. By the time any incremental revisions set forth in the proposed revisions to the current classification framework are implemented, this administration will be more than half over. Two years is not enough time to enact a fundamental transformation in a system that pre-dates World War II.

At Least We Don't Have a Headache Anymore

I believe it was George Carlin who told a joke in reaction to the trite phrase, "cheer up, things could be worse." Carlin would ask rhetorically -- "what about the guy who has the absolute worst situation in the world? There is no one worse off than he is. What condescending saying do you use with that poor guy?" Carlin's answer: "Cheer up, things could be worse, you could have a headache."

It is in this vein that the AP chose as a headline today: Report: Obama administration improves openness. The headline gives justice to neither the article that follows nor the report upon which it is based.

The report is the Secrecy Report Card 09 issued by OpenTheGovernment.org. In addition to serving as a capstone report on official secrecy in the last year of the Bush-Cheney administration, it also provides "a quick look at the openness and secrecy trends in the new Administration." Contrary to the AP's misleading headline, with respect to the Obama administration the report states that "(t)he record to date is mixed." That's a nice way of saying at least we don't have a headache anymore.

Open government advocates and citizens everywhere are entirely justified in expressing dismay with the Obama administration's record to date. It is not a case where such advocates and citizens projected their own vision on the Obama presidency. Rather, it was Obama himself who set the metrics by which the actions of his administration must be measured. He pledged an administration:

committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government (emphasis added).

It is thus essential to avoid falling into the trap of judging the current administration by simply comparing it with the prior. Yet, that is what the NY Times breathlessly does in an editorial yesterday where it effused:

Transparency doesn’t come easy in Washington, where deal makers and favor seekers prefer to work from the shadows. But the Obama administration is taking a major step into the sunlight with the presidential order to post online the thousands of White House visitors who come and go each month.

Gruel to starving children goes the saying. I previously wrote about this topic here, and while the White House policy on visitor records is a positive step, it is by no means a "major step" to establishing the system of transparency, public participation, and collaboration the President promised.

In an article recently written by Clint Hendler of the Columbia Journalism Review, Steve Aftergood says it best when he states:

there’s a sense that this is the last chance that we have for a decade—maybe for a generation—to get the classification system right.

Our citizens' expectation must be better than simply rolling back some of the most egregious abuses of the prior administration. Incremental change is "business as usual." Unless real and radical change is implemented now, future generations are assured to repeat the tragedies of the current decade, to include the needless sacrifice of American blood and treasure. We owe our children and grandchildren, and their children, much more than that.