Senators Ask FBI to Explain Flawed 'National Security Letter' to Internet Archive, By Ryan Singel, Wired Blog, May 15, 2008.

A bipartisan group of U.S. senators is asking FBI head Robert Mueller to explain why the feds sought records from the Internet Archive, a digital library, using a controversial administrative subpoena known as a National Security Letter, which is intended for a communications service providers....

Specifically, they asked Mueller if the FBI actually believed that the Internet Archive was an communications service provider. If it were, FBI agents could get subscriber records using an NSL under the auspices of the Electronic Communications Protection Act. But if the Internet Archive is a library, that subpoena would be inapplicable and possibly illegal. That would mean that the NSL should be reported to the Intelligence Oversight Board as a possible violation of law.

The senators are asking Mueller if the Internet Archive subpoena actually was reported to the board.

On May 9, this past Friday, the White House issued a memorandum doing away with the old category of "Sensitive But Unclassified" and replacing it with "Controlled Unclassified Information."

The memo is titled, "Memorandum For The Heads Of Executive Departments And Agencies - SUBJECT: Designation and Sharing of Controlled Unclassified Information (CUI)".

Here is how the memo defines CUI (bolding mine):

a. "Controlled Unclassified Information" is a categorical designation that refers to unclassified information that does not meet the standards for National Security Classification under Executive Order 12958, as amended, but is (i) pertinent to the national interests of the United States or to the important interests of entities outside the Federal Government, and (ii) under law or policy requires protection from unauthorized disclosure, special handling safeguards, or prescribed limits on exchange or dissemination. Henceforth, the designation CUI replaces "Sensitive But Unclassified" (SBU).

This is such a broad brush that it could be used to exempt anything from public disclosure. By definition, isn't anything the government produces at least somewhat pertinent to the national interests of the United States? Otherwise, why waste taxpayer dollars and government time creating the product?

Then there's the allowance for "policy." I'm sure that DoD's 2002 domestic propaganda program probably "required protection" from "unauthorized disclosure" for "policy" reasons.

This is a definition that appears to be designed to give the executive branch total control over what information is released by the US Government regardless of existing law. It is an order that should be challenged by Congress today with no funding permitted for its implementation. Assuming the President doesn't back down, it should be one of the first items revoked by the incoming President.

Government information items should be properly classified and protected, safeguarded when containing individuals personal data, or public record. No twilight zone of "It's unclassified, by I can't give it to you for reasons of government policy."

The U.S. Federal Bureau of Investigation (FBI) has withdrawn a secret demand, issued as a national security letter (NSL), that the Internet Archive (IA) provide the agency with a user's personal information after Brewster Kahle, the Electronic Frontier Foundation (EFF), and the American Civil Liberties Union (ACLU) challenged the records request in court.

• FBI Withdraws Unconstitutional NSL Served on Internet Archive, ACLU. (Includes links to documents)

Since the Patriot Act was authorized in 2001, relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase. Reports from the Justice Department's Inspector General reveal that the FBI has issued nearly 200,000 NSL between 2003 and 2006. Multiple investigations have found serious FBI abuses of regulations and numerous potential violations of the law.

• Internet Archive Challenges F.B.I.’s Secret Records Demand, by Grant Gross, IDG News Service, New York Times, May 7, 2008 (or Internet Archive challenges FBI's secret records demand, by Grant Gross, in InfoWorld).

In each of the three court challenges to the NSL program, the FBI has withdrawn the information demands, ACLU's Goodman said. "I think that calls into question how much the FBI needed the information in the first place and, frankly, whether the FBI needs this kind of sweeping and unchecked surveillance power," she said.

Secret Laws are laws that citizens and even Congress do not know about or are forbidden from seeing.

A recent Senate hearing examines how these "laws" become law and why they are 'repugnant' and 'an abomination.'

The official page for the hearing with links to written testimony and a video of hearing: Secret Law and the Threat to Democratic and Accountable Government, Hearing, Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Property Rights, April 30, 2008.

A brief overview of the hearing by Steven Aftergood with links his and others' to testimony: Secret Law Debated in Senate Hearing, by Steven Aftergood, Secrecy News, April 30, 2008.

A concise op-ed by Senator Russ Feingold about secret laws: Government in secret, By Russ Feingold, Los Angeles Times, May 8, 2008.

Former staff writer for the Washington Post and Time Magazine Ted Gup has written a book on secrecy worth our attention:

• Nation of secrets : the threat to democracy and the American way of life, by Ted Gup, New York : Doubleday, c 2007.

In it he describes the problems of "secretocracy," which, in our "post-9/11" society, has made information that citizens need off-limits to citizens. So, despite the fact that is "more likely for a bridge to collapse than for it to [be] struck by terrorists" Homeland Security instructed state governments to take bridge maintenance reports off their Websites. (Our Great 'Secretocracy' by Sean Gonsalves, AlterNet, May 6, 2008).

And court records are not just unavailable but "the software system used in all federal courts is designed to spit out 'No Such Case Exists' when anyone queries cases that have been sealed" because they were settled through "alternative dispute resolutions." (Calling for a secrecy beat, Commentary, By Ted Gup, Nieman Watchdog, April 29, 2008).

See also: Secrets and the Press By Walter Pincus, Nieman Reports, Spring 2008.

In an odd addendum to the corruption case of (now former) Rep. Randy "Duke" Cunningham, prosecutors are arguing that once the executive branch says something is classified, courts are virtually powerless to review or disagree.

The arguments are in the case of Thomas Kontogiannis, a New York financier who admitted to one charge of laundering bribe money for former Rep. Cunningham.

• Cunningham figure's plea deal was sealed, By Greg Moran, San Diego Union-Tribune, April 20, 2008

While portions of the case remain secret, a batch of previously sealed court filings was released this week that show the government arguing what media law experts said was an astounding position....

In essence, prosecutors argued that once the executive branch says something is classified, courts are virtually powerless to review or disagree. That is true, they argued, even when the information is part of court records - which historically have been considered open under the First Amendment.

The Halfway House Between Science and Secrets; An Interview With Bruce Schneier on Science and Security By Jonathan Pfeiffer, interviewer Science Progress, March 19th, 2008.

"A recent, Congressionally-mandated, National Research Council report (Science and Security in a Post 9/11 World, by the Committee on a New Government-University Partnership for Science and Security, National Research Council) recognizes that the 9/11 attacks provoked counter-productive security measures that stifle access to fruitful scientific research.... The NRC warns that the widespread practice of labeling scientific research as "sensitive but unclassified" has had grave consequences for our security and our economy.... Security expert Bruce Schneier talks with Science Progress about the science that makes us smarter and the security that makes us safer."

Schneier says:

And a lot of scientific data, information, and knowledge-stuff that is used by the scientific community, used by businesses, used by everybody-gets stuck in this halfway house between secret and open. It's a form of secrecy, and it's a form of stifling information sharing. And where it affects scientists is that science thrives on information sharing. Science works because one person's research becomes another person's footnotes.

Secret Bush Administration Torture Memo Released Today In Response To ACLU Lawsuit (4/1/2008) American Civil Liberties Union. "A secret memo authored by the Department of Justice (DOJ) asserting that President Bush has unlimited power to order brutal interrogations to extract information from detainees was declassified today as a result of an American Civil Liberties Union Freedom of Information Act lawsuit. The memo, written by John Yoo, then a deputy at the DOJ's Office of Legal Counsel (OLC), was sent to the Defense Department in March 2003."

• Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States, by John Yoo, Deputy Assistant Attorney General, Department of Justice, Office of Legal Counsel. March 14, 2003. Declassify under authority of Executive Order 1958 By Acting General Counsel, Department of Defense By Daniel 1. Dell'Orto, 31 March 2008.

News Stories:

• Memo: Laws Didn't Apply to Interrogators "Justice Dept. Official in 2003 Said President's Wartime Authority Trumped Many Statutes" By Dan Eggen and Josh White Washington Post. Wednesday, April 2, 2008; Page A01.
• ’03 U.S. Memo Approved Harsh Interrogations, By MARK MAZZETTI, New York Times, April 2, 2008.

Last year, the Public Interest Declassification Board (PIDB), an advisory committee established by Congress, issued a report to the President, Improving Declassification. (See also: Improving Declassification, 2008-01-13).

On March 17, 2008, the PIDB heard public comments on its report. For a report on those comments and links to many of the comments, see:

• PIDB Receives Public Comment on "Improving Declassification" Report National Coalition for History, March 19, 2008.

Among the comments were concerns that funding would ultimately be the biggest stumbling block to realizing the recommendations and that too many documents are classified in the first place, which contributes to the overload of the declassification system. Tom Blanton, Director of the National Security Archive at George Washington University suggested that the PIDB recommendations should be transformed into a draft executive order for immediate consideration by the incoming president. Mark Zaid, Executive Director of the James Madison Project encouraged the PIDB to pursue declassification of records of Congress, and classified judicial records.

Representing the American Historical Association (AHA), Dr. Brian Martin, President and Chief Operating Officer, of History Associates, Inc. noted that the value of audio, video and digital media value may increase over time and urged The National Archives (NARA) to avoid thinking that "if we have it on paper, we don't need to preserve it in another format."

Dr. Patrice McDermott, Director of Open-The-Government.Org many in the public interest community fear that electronic records, including historically significant records, are being lost or destroyed.

With regard to "sensitive but unclassified" documents, she expressed a need for a clear review process of these unlimited control markings, rather than linking them to declassification review after 25 years and treating them as "super-classified. As previous witnesses said, she agreed that much of the problem is caused by massive over-classification at the front end of the process

Bush Hits the Delete Button: Public information the administration doesn't want you to see, by Paul Kiel, Utne Reader, March-April 2008.

Since 2006 ... the investigative website TPMmuckraker.com [has] been keeping a running tally of the diminishing access to government information. Reporter Steve Benen got the list started over at his own blog, the Carpetbagger Report. Then his fellow Muckrakers joined in by trawling the news and--as is the website's custom--tapping the collective wisdom of their readers to cobble together a dossier on an administration that has, as deputy editor Paul Kiel writes, "discontinued annual reports, classified normally public data, de-funded studies, quieted underlings, and generally done whatever was necessary to keep bad information under wraps."

Here, Utne Reader presents an excerpted (but not redacted) version of the list Kiel continues to compile. [Bush Admin: What You Don't Know Can't Hurt Us, 2007 Version By Paul Kiel - November 23, 2007.]

The First Amendment Center posted the full-text of the 2008 National FOI Day Conference's keynote speech, "A New Balancing Test: How Excessive Classification Undermines National Security" by J. William Leonard, former chief of the Information Security Oversight Office.

Leonard quipped that his remarks on government secrecy would be his most candid, "a sort of ‘Leonard Unplugged’ if you will for those of you into the MTV scene". He discussed instances of excessive secrecy that produced serious consequences, including the decision to go to war in Iraq, stating, "Secrecy comes at a price - sometimes a deadly price - often through its impact upon the decision-making process".

He also proposed a new way for government officials to determine whether information needs to be classified in the interest of national security; what he calls the "New Balancing Test":

"We are long familiar with what many regard as the “traditional” balancing test of national security versus openness – of secrecy versus transparency. Instead, the balancing test of which I talk is more along the lines of national security versus national security; i.e. what will cause greater damage to national security, the disclosing or withholding of specific information".

The FAS Project on Government Secrecy Blog contains an informative post about secret sessions of the House of Representatives, including one that took place on March 13th to consider classified matters concerning the Foreign Intelligence Surveillance Act (FISA).

For more information about secret sessions, read "Secret Sessions of the House and Senate" and "Secret Sessions of Congress: A Brief Historical Overview," by the Congressional Research Service. I knew that the Senate held secret sessions (54 since 1929), but I did not know that the House only held three secret sessions since 1830 and they took place in 1979, 1980, and 1983! However, there were unsuccessful attempts to hold a secret session to discuss the assessment of the war in Iraq in 2006 (search for page H7371) and the Intelligence Authorization Act for FY 2008 (pages H4795-4796, H4808, and H4867-68). Also, the proceedings of a secret session are not published unless the House or Senate votes to release them. If they vote to release them, then the transcripts will be printed in the Congressional Record, but if the House votes not to release them, then the they are preserved at NARA and may be available to the public after 30 years.

Today I was searching the shelves of my depository for a report related to the Catalog of Federal Domestic Assistance and instead my eyes fell on this publication from the CIA:

Donovan and the CIA : a history of the establishment of the Central Intelligence Agency
by Thomas F Troy
Publisher: [Langley, Va.?] : Central Intelligence Agency, Center for the Study of Intelligence, 1981.
SuDoc: PREX 3.10:D71

This is the official story of how the CIA came to be. According to the preface, it was written in 1975 as an account of the agency's origin for new employees. It was promptly stamped SECRET. In 1981, the agency released a declassified edition which the preface hails as being "released for leisurely reading outside the office, and printed in one volume, this history should better serve it's original purpose."

What made the CIA decide it could let its secret origin story out of the shadows? According to the preface, it was the excision of no more than six typewritten pages. Obviously, I haven't seen the missing six pages, but doesn't this case make it seem like the classification process is a little whimsical?

The book is divided into three sections: "The COI (Coordinator of Information) Story" which covers from about 1929 to World War II, Wartime--The OSS Story and Postwar--The CIA Story, which ends with the establishment of the CIA. If anyone's read this volume, let us know what you think.

As far as I can tell, the book has no electronic version. Google Books has a commercial version with no preview. Perhaps one day the government document version, which is in the public domain, will be posted. Might be interesting to run a tag cloud on the text.

The electronic world has given us many gifts, but I'm not sure it could deliver an experience of serendipity like the printed shelf did for me today. From welfare to spies.

On a personal note, thanks to everyone who has sent words of appreciation to me regarding my being named as a Library Journal 2008 Mover and Shaker. I really think this is an award that in a real sense belongs to the entire documents community and especially to my co-volunteers here at FGI and the dozens of folks working on State Agency Databases Across the Fifty States. Thanks to each and every one of you who contributes to finding, describing, and making government information available to people in a way that respects their privacy. Without you I'd just be a mouth on legs.

The National Security Archive has posted more than a dozen declassified documents from 1991-1992 about the Defense Planning Guidance (DPG). These were prepared by the Pentagon under the Secretary of Defense of that time, Richard Cheney.

• "Prevent the Reemergence of a New Rival" The Making of the Cheney Regional Defense Strategy, 1991-1992, National Security Archive, The George Washington University, February 26, 2008.

One aspect of this release that is noteworthy is the insight it provides into government secrecy, classification and declassification, and the accuracy and completeness of the historical record. As the NSA says:

Remarkably, these new releases censor a half dozen large sections of text that The New York Times printed on March 8, 1992, as well as a number of phrases that were officially published by the Pentagon in January 1993. "On close inspection none of those deleted passages actually meet the standards for classification because embarrassment is not a legal basis for secrecy," remarked Tom Blanton, director of the Archive."

The NSA displays the language that the Times publicized side-by-side with the relevant portions of the February 18, 1992 draft that was the subject of the leak.

The documents are fascinating:

The word "preempt" does not appear in the declassified language, but Document 10 includes wording about "disarming capabilities to destroy" which is followed by several excised words. This suggests that some of the heavily excised pages in the still-classified DPG drafts may include some discussion of preventive action against threatening nuclear and other WMD programs. The excisions are currently under appeal at the Interagency Security Classification Appeals Panel (ISCAP).

Army Says It Will Restore Public Access to Online Library. by Steven Aftergood, Secrecy News. Feb 21, 2008.

The U.S. Army said today that it would restore public access to the online Reimer Digital Library of Army publications, after having blocked the site on February 6.The U.S. Army said today that it would restore public access to the online Reimer Digital Library of Army publications, after having blocked the site on February 6.