Secrecy News

Last week, Sen. Richard Shelby (R-AL) placed a “hold” on all of the Obama Administration nominations that are pending before the Senate, thereby preventing a vote on their confirmation.  There are said to be at least 70 such nominations awaiting Senate action, including those of several senior defense and intelligence officials.  Sen. Shelby, a man of flexible principles who has served as both a Democrat and a Republican, reportedly adopted the blanket holds in an attempt to compel the Administration to award certain defense contracts to his home state of Alabama.

Shelby’s action is “outlandish,” said Senate Majority Leader Harry Reid (D-NV) on the Senate floor last Thursday.  But that was as far as he was prepared to go, or perhaps farther than he intended to go.  Striking a tactical retreat, he immediately added: “I can’t imagine this is the right thing to do.”

The new obstructionism has the potential to cripple the U.S. government, warned Paul Krugman today in the New York Times, and to do so in a particularly pointless and humiliating way:  “Instead of re-enacting the decline and fall of Rome, we’re re-enacting the dissolution of 18th-century Poland,” he wrote.

Confronted with rampant irresponsibility and procedural abuse, the White House and the Majority party are not — or should not be — helpless to respond.  In theory, their options include recess appointments to circumvent the Senate confirmation process, and the so-called “nuclear” option to alter existing Senate procedures.  These alternatives, along with related background, have been usefully described in a series of reports from the Congressional Research Service (all pdf).

“Recess Appointments: Frequently Asked Questions,” updated March 12, 2008.

“‘Entrenchment’ of Senate Procedure and the ‘Nuclear Option’ for Change: Possible Proceedings and Their Implications,” March 28, 2005.

“Cloture Attempts on Nominations,” March 30, 2009.

“‘Holds’ in the Senate,” May 19, 2008.

“Senate Policy on ‘Holds’: Action in the 110th Congress,” March 14, 2008.

“Filibusters and Cloture in the Senate,” March 28, 2003.

“Minority Rights and Senate Procedures,” August 22, 2005.

Several recent reports from the Congressional Research Service provide descriptive profiles of the present and past composition of Congress by race, ethnicity, gender, education, religion and occupation (all pdf).

“Membership of the 111th Congress: A Profile,” February 4, 2010.

“Women in the United States Congress: 1917-2009,” December 23, 2009.

“Asian Pacific Americans in the United States Congress,” February 1, 2010.

“African-American Members of the United States Congress: 1870-2009,” February 2, 2010.

New reports from the Congressional Research Service include the following (pdf):

“Al Qaeda and Affiliates: Historical Perspective, Global Presence, and Implications for U.S. Policy,” February 5, 2010.

“The Rum Excise Tax Cover-Over: Legislative History and Current Issues,” January 20, 2010.

In testimony this week before the Senate Intelligence Committee, Director of National Intelligence Dennis C. Blair declared unequivocally that Al Qaeda would attempt to attack the United States within the next six months.  “The priority is certain, I would say,” he told the Committee.

This recalls nothing so much as the startling August 6, 2001 item in the President’s Daily Brief (PDB) that was entitled “Bin Ladin Determined to Strike in US” (pdf).

But the 2001 warning to President Bush was classified at the highest possible level and remained secret for years thereafter, until it was finally dislodged at the insistence of the 9/11 Commission.  In contrast, DNI Blair’s comparable statement was openly presented and was about as public as it could be.

Why should that be so?  Clearly the political circumstances for the two warnings are different, as are the venues in which they were delivered.  But it is also true that the parameters of official secrecy are subject to change.  Yesterday’s top secret might not even qualify as today’s front-page news.

The boundaries of official secrecy will be examined at a conference at the New School in New York City on February 24-26 on “Limiting Knowledge in a Democracy.”

“There is no question that the free access to knowledge and information are the bedrock of all democratic societies, yet no democratic society can function without limits on what can be known, what ought to be kept confidential and what must remain secret,” according to the conference overview. “The tension among these competing ends is ever present and continuously raises questions about the legitimacy of limits. What limits are necessary to safeguard and protect a democratic polity? What limits undermine it?”

I will be speaking on February 26 on “National Security Secrecy: How the Limits Change.”

Some new reports from the Congressional Research Service that have not previously been made available to the public include the following (all pdf).

“Social Networking and Constituent Communications: Member Use of Twitter During a Two-Month Period in the 111th Congress,” February 3, 2010.

“Metropolitan Transportation Planning,” February 3, 2010.

“Veterans Health Care: Project HERO Implementation,” February 3, 2010.

Several noteworthy new hearing volumes on national security policy have recently appeared (all pdf).  In most cases, the published volumes include valuable new supplementary material for the record.

“Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability,” Senate Judiciary Committee, February 13, 2008 (published December 2009) (large pdf).

“Coercive Interrogation Techniques: Do They Work, Are They Reliable, and What Did the FBI Know About Them?”, Senate Judiciary Committee, June 10, 2008 (published December 2009) (large pdf).

“Protecting National Security and Civil Liberties: Strategies for Terrorism Information Sharing,” Senate Judiciary Committee, April 21, 2009 (published January 2010).

“Chinese Interrogation vs. Congressional Oversight: The Uighurs at Guantanamo,” House Foreign Affairs Committee, July 16, 2009 (published December 2009).

Websites and blogs dealing with military issues in Taiwan were surveyed in a recent report from the DNI Open Source Center that has not been publicly released.  See “Taiwan: Unofficial Military Websites” (pdf), Open Source Center Media Aid, January 12, 2010.

Members of Congress are urging the Obama Administration to activate the Privacy and Civil Liberties Oversight Board, an independent agency that is supposed to monitor and defend civil liberties in the development and implementation of counterterrorism policies.

Last week, Rep. Bennie Thompson and Rep. Jane Harman wrote to the President and asked him to appoint members to the vacant Board, which has a budget for the current fiscal year that remains unexpended.

“Given the recent events of December 25, 2009, and the prospective policy changes that will be made subsequent to this incident, including potential expansion of watch lists and widespread use of body-scanning technology, we believe that the Board will give an anxious public confidence that appropriate rights are respected,” they wrote.

Their letter was reported by Eli Lake in the Washington Times today.  See “Liberties oversight panel gets short shrift,” February 2.

The White House expects to name the Board leadership “soon,” a spokesman told the Times.

First proposed by the 9/11 Commission, the Board was originally set up within the Executive Office of the President.  But after concerns about its independence and freedom of action arose, Congress enacted legislation in 2007 to establish it as an independent agency.

For further background see “Privacy and Civil Liberties Oversight Board: New Independent Agency Status” (pdf), Congressional Research Service.

Senator George V. Voinovich (R-OH) wanted to know:  What is the National Counterterrorism Center (NCTC) doing to improve the status of women in the Muslim world, and to better engage women around the world on counterterrorism issues?

“The response to this question is classified,” replied NCTC Director Michael Leiter in a written response that has recently been published.

See the last page of “The Roots of Violent Islamist Extremism and Efforts to Counter It” (pdf), hearing before the Senate Homeland Security and Governmental Affairs Committee, July 10, 2008 (published December 2009).

At a 2008 Senate hearing, FBI Director Robert S. Mueller III was effusively praised for standing by the ailing Attorney General John Ashcroft in his hospital bed in 2004 and helping him to resist White House pressure to reauthorize the Bush Administration’s domestic surveillance program.

“It is hard to imagine in America circumstances in which the Director of the FBI has to order agents standing guard over a stricken Attorney General not to leave him alone with the White House counsel and the President’s Chief of Staff to make sure that Deputy Attorney General James Comey stayed with him,” said Sen. Sheldon Whitehouse in the newly published hearing volume.

“But it is not hard to understand the feeling of pressure, isolation, and consequence that bore down on all of you through that episode. I will disagree with all of you on many things, but I wanted to take this opportunity today to say thank you. Against intense and hostile pressure from the highest offices in the land, you stood for the principle that all public offices have public duties and responsibilities and that honoring those duties and responsibilities, at least as God gives us each of us the light to see them, is a higher public virtue than mere obedience. That is an important lesson in democracy. I hope it is a lasting one, and I thank you for showing us it,” Sen. Whitehouse said. (page 30)

At the same hearing, Sen. Arlen Specter scolded Director Mueller for failing to inform the Judiciary Committee of the secret Bush Administration warrantless surveillance program in the first place.  The Committee had to learn about it from the New York Times, Sen. Specter complained.  “Why didn’t you inform me as Chairman and Senator Leahy as Ranking Member about the existence of this program?” (page 14)

See “Oversight of the Federal Bureau of Investigation” (pdf), Senate Judiciary Committee, September 17, 2008 (published December 2009).

Other noteworthy new hearing volumes include these:

“Exercising Congress’s Constitutional Power to End a War” (pdf), Senate Judiciary Committee, January 30, 2007 (published November 2009).

“The Report of the Congressional Commission on the Strategic Posture of the United States,” Senate Armed Services Committee, May 7, 2009 (published January 2010).