PRESIDENTIAL SECRECY AND THE LAW

Presidential secrecy is best understood not as an expression of
executive strength but as a sign of weakness and insecurity,
according to a provocative new book on the subject.

"When the president lacks diplomatic or interpersonal skill, he
is likely to compensate by shielding his activities -- even
shielding his very self -- from the public, relying on secrecy
rather than diplomacy," write political scientists Robert M.
Pallitto and William G. Weaver in "Presidential Secrecy and the
Law."

The authors explore how the growth of executive branch secrecy
has transformed the institution of the presidency and the
character of American government.

Secrecy, they say, "has depoliticized the president's role in
governmental action. Where a president may do what is desired
in secret, there is no reason to withstand the ordeal of a
political battle to achieve the same ends."

"Increasingly, our governmental institutions are unable to hold
the president accountable for actions undertaken in secret in
the name of national security. In a subtle but sweeping way,
this failure is working detrimental changes in our federal
government institutions."

The authors review the landscape of national security secrecy
and the accumulation of unchecked executive authority and they
proceed to critique the performance of the legislative and
judicial branches.

Legislative initiatives such as the War Powers Act and the
Foreign Intelligence Surveillance Act that were intended to
restrain the executive branch have consistently backfired, they
contend, serving instead to legitimize the presidential actions
that they were intended to restrict.

"As counterintuitive as it may seem, we conclude that
congressional efforts to control executive abuse in areas of
purported national security concerns are ill-advised. These
efforts insulate the president and establish a bureaucratic
machinery and process for engaging in precisely the kinds of
activity that were meant to be avoided."

"We argue that aggressive action to control executive branch
abuse of secrecy should not come from Congress but from the
courts, which are in a position to provide the scrutiny
necessary to discourage presidential abuse of secrecy powers."

For more information, see "Presidential Secrecy and the Law" by
Robert M. Pallitto and William G. Weaver, Johns Hopkins
University Press, 2007:

http://www.press.jhu.edu/books/title_pages/9324.html

A White House obsession with secrecy should not be confused with
a commitment to good security. Rep. Henry Waxman yesterday
itemized several gross violations of classified information
security policy in the Bush White House and called upon former
White House chief of staff Andrew Card to explain security
practices during his tenure.

http://www.fas.org/irp/congress/2007_cr/waxman042307.pdf

PENTAGON PROPOSES NEW ACCESS RESTRICTIONS

The Department of Defense has asked Congress to enact two
expansive new provisions in the FY 2008 defense authorization
act to help it restrict public access to information.

One of the provisions would create a new exemption to the
Freedom of Information Act for certain unclassified information
related to weapons of mass destruction (WMD). The other would
establish civil and criminal penalties for the unauthorized
publication or sale of maps and images ("geodetic products")
that the Secretary of Defense has designated for "limited
distribution."

The proposed exemption for unclassified WMD information, which
was proposed and rejected by Congress last year (SN, 04/18/06),
is exceptionally broad in scope.

Its definition of "weapons of mass destruction" even extends to
devices that are not lethal, as long as they may cause "serious
bodily injury to a significant number of people" (50 U.S.C.
2302).

The Pentagon's argument for the exemption is further undermined
by the assertion that without it, unclassified information
could "easily" assist a terrorist to make or use a weapon of
mass destruction. The notion that terrorism is "easy," popular
with some New York Times op-ed writers and other lazy persons,
was memorably dissected by George Smith of GlobalSecurity.org
(SN, 08/16/05).

The second provision to penalize "inappropriate disclosures" of
geodetic information, "including postings of such products on
the internet," originated with the Defense Criminal
Investigative Service (DCIS), which said it could not
effectively protect these unclassified maps and images without
a new criminal prohibition.

"For several years, products bearing the LIMDIS [limited
dissemination] caveat have wrongfully been offered for sale to
the public ... on eBay or displayed on internet sites. To
date, DCIS efforts to prosecute the eBay sellers have not been
successful."

An organization that engaged in unauthorized disclosure or
dissemination of such materials would be subject to a penalty
of "not more than $500,000 for each violation...."

The text of the two proposed Pentagon access restrictions, with
accompanying explanation and justification, may be found here:

http://www.fas.org/sgp/congress/2007/defauth-prop.html