An amusing headline from NYT: “Cheney Is Linked to Concealment of C.I.A. Project.” I mean, obviously, Cheney is going to be linked. He’s everyone’s favorite evil mastermind.

The Central Intelligence Agency withheld information about a secret counterterrorism program from Congress for eight years on direct orders from former Vice President Dick Cheney, the agency’s director, Leon E. Panetta, has told the Senate and House intelligence committees, two people with direct knowledge of the matter said Saturday.

The report that Mr. Cheney was behind the decision to conceal the still-unidentified program from Congress deepened the mystery surrounding it, suggesting that the Bush administration had put a high priority on the program and its secrecy.

Now, if there’s anything we know about the CIA during the Bush years, they only kept secrets when they felt like it. Senior CIA officials routinely leaked to the press to cover their own backsides or when they disapproved of administration policy. Do we really think were going to break the law by lying to Congress on the orders of the vice president?

For that matter, it’s not entirely clear why they would consider Cheney part of their chain of command. Until early 2005, the CIA Director was dual hatted as Director of Central Intelligence, reporting directly to the president. Subsequently, the roles were split and the CIA Director reported to the Director of National Intelligence. The vice president has only referent power based on the strength of his relationship with the president. Indeed, some would argue that Dick Cheney wasn’t even a member of the executive branch!

UPDATE: Steven Taylor observes, “The broader problem here is that the current congressional oversight process over intelligence doesn’t work very well (if at all).”   Ultimately, that’s the key takeaway. CIA simply doesn’t feel like it answers to Congress.

Steven Aftergood notes that, “The United States Air Force has published a detailed organizational chart of its headquarters (pdf) including the names and telephone numbers of key personnel” and points out that this seemingly uninteresting fact “represents a departure from the post-9/11 Pentagon practice of withholding the names and phone numbers of Pentagon officials from publication in the Department of Defense telephone directory.”

Why does DoD withhold its telephone directory when other agencies with national security responsibilities such as the Department of State and the Department of Energy openly publish their telephone directories on their websites?

One answer is “OPSEC,” or “operations security,” meaning the concealment of unclassified indicators to frustrate foreign intelligence collectors.  But that rationale could apply equally to Energy and State, which do not embrace it.  Besides, the Pentagon itself survived the Cold War without such an extreme secrecy policy.

Another answer is that unlike other agencies, “We were attacked,” as one Pentagon employee told Secrecy News, citing the September 11 terrorist strike on the Pentagon.  That is a conversation stopper but not much of an explanation, since there is no known reason to believe that the Pentagon telephone directory was used by the 9/11 terrorists.

Indeed.  It’s a truly baffling policy that has been taken to ridiculous extremes.  For example, even the various DoD schools that have large civilian faculties — the Service academies, war colleges and so forth — stopped publishing staff directories, which virtually every comparable civilian institution does as a matter of course, on their websites.

There’s probably some logic to keeping the staff listings of some DoD offices private but a blanket policy is absurd.  Of course, that’s bureaucracy for you:  To say that protecting some office’s information is more vital to the nation’s security that others’ is to set off turf wars.   And don’t even get me started on “essential personnel only” policies. . . .

Meet the new boss — same as the old boss:

In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.

In the case, Binyam Mohamed, an Ethiopian native, and four other detainees filed suit against a subsidiary of Boeing for arranging flights for the Bush administration’s “extraordinary rendition” program, in which terrorism suspects were secretly taken to other countries, where they say they were tortured. The Bush administration argued that the case should be dismissed because even discussing it in court could threaten national security and relations with other nations.

During the campaign, Mr. Obama harshly criticized the Bush administration’s treatment of detainees, and he has broken with that administration on questions like whether to keep open the prison camp at Guantánamo Bay, Cuba. But a government lawyer, Douglas N. Letter, made the same state-secrets argument on Monday, startling several judges on the United States Court of Appeals for the Ninth Circuit.

“Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

“No, your honor,” Mr. Letter replied.

Judge Schroeder asked, “The change in administration has no bearing?”

Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.

This will, I wager, not be the last time that the change in administration has no bearing.  Being responsible for national security is rather different from commenting on it from the outside and entering office tends to make presidents conform to their new role.

Others are more surprised.   Even some Obama supporters are letting him have it.

Glenn Greenwald titles his long post on the matter “Obama fails his first test on civil liberties and accountability — resoundingly and disgracefully.”

What makes this particularly appalling and inexcusable is that Senate Democrats had long  vehemently opposed the use of the “state secrets” privilege in exactly the way that the Bush administration used it in this case, even sponsoring legislation to limits its use and scope.  Yet here is Obama, the very first chance he gets, invoking exactly this doctrine in its most expansive and abusive form to prevent torture victims even from having their day in court, on the ground that national security will be jeopardized if courts examine the Bush administration’s rendition and torture programs — even though (a) the rendition and torture programs have been written about extensively in the public record; (b) numerous other countries have investigated exactly these allegations; and (c) other countries have provided judicial forums in which these same victims could obtain relief.

Kevin Drum: “So Obama is adopting the same expansive interpretation of the privilege as the Bush/Cheney administration, and using it in order to cover up American involvement in torture and rendition programs that have been in the public record already for years and can hardly even be said to be secrets, let alone state secrets that are vital to U.S. national security. This is decidedly not change we can believe in.”

Armando Llorens (Big Tent Democrat): “Holder and the Obama Administration are BSing us on this issue. Unlike some, I believe that there are appropriate situations for application and invocation of the state secrets privilege. I think it serves an important function. The Jeppesen case is about as far a case as one could imagine where the invocation of the state secrets privilege can possibly be deemed appropriate.”

Andrew Sullivan:  “This is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them.”

Thoreau: “The machine is on autopilot, and nobody who wears that Ring is going to toss it into the volcano.”

Cernig: “Thus, the Obama administration collectively become accessories to the Bush administration’s crimes. In my opinion, any cabinet member who had an ounce of spine and an ounce of belief in the rule of law for all would resign over this travesty of justice. Watch for an utter lack of that.”

Ron Chusid calls this a  “disappointing move” but argues “While I disagree with what appears to be a general policy from Obama to avoid prosecution based upon the crimes of the Bush administration, this still does not place Obama on the level of those in the Bush administration which actually committed these acts. We can be disappointed in this decision by the Obama administration to hinder prosecution for past acts while still applauding their decision to refrain from such actions in the future.”

Daren Hutchinson points out that, “If the Obama administration wished to drop the policy in this particular case, it would have done so prior to today’s oral arguments. Most lawyers, however, do not shift positions in order to lose a case. Furthermore, the privilege can help secure victories in future cases; accordingly, DOJ will continue asserting it.”  He adds, “The DOJ’s position is less about creating a wall of governmental secrecy; instead, it represents a powerful litigation strategy. Although acceptance of the privilege by courts results in the dismissal of anti-torture litigation, very few lawyers would forgo such a powerful strategic device.”

That strikes me as exactly right.  Obama’s president now.  He has ostensibly discontinued the policy of “extraordinary rendition,” the extent of which we will likely never know.  But he’s neither going to compromise national security secrets nor give away potentially useful presidential powers now that he’s in the White House.  I’m surprised anyone’s surprised by that.

Former Secretaries of State James Baker and Warren Christopher take to the op-ed pages of the NYT to call for a new War Powers Act.

A bipartisan group that we led, the National War Powers Commission, has unanimously concluded after a year of study that the law purporting to govern the decision to engage in war — the 1973 War Powers Resolution — should be replaced by a new law that would, except for emergencies, require the president and Congressional leaders to discuss the matter before going to war.

[...]

Our proposed statute would provide that the president must consult with Congress before ordering a “significant armed conflict” — defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts — for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation — not just notification — would need to be undertaken within three days.

To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.

Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president’s veto were overridden. If the resolution of disapproval did not survive the president’s veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.

It should be noted at the outset that, were such a law on the books in 2002, the Iraq War would almost certainly have proceeded exactly as it did. President Bush in fact not only consulted with Congress but got authorization to commence military operations in Iraq at his sole discretion by rather wide margins from both Houses.

In terms of preventing “bad” wars, I’m dubious as well. A determined president can, as has been repeatedly been demonstrated, get legal advice showing him how to navigate the loopholes in the law. And, goodness, this one sounds to have loopholes you can drive a truck through. “Sorry, I couldn’t consult with you guys. Otherwise, the operation wouldn’t be covert, now would it?” “This mission was necessary for protecting Americans abroad. I mean, if Ayatollah Nutsojihad got WMD, American tourists in Israel wouldn’t have been safe at all.” Once hostilities are commenced and American troops are in harm’s way, a Rally ‘Round the Flag effect invariably happens and Congress would be hard pressed to then vote No.

Those rather large caveats notwithstanding, these reforms sound like good ones. First, even if we only established the Super Duper Joint Select Committee on Foreign Policy Stuff and ignored everything else, it would be a major step forward. Now, a dozen preening Committee chairman can easily claim that any given activity falls within their purview and then stage photo-op “hearings” to get their faces on teevee. A consolidated, bipartisan group might actually provide serious advice and gain the trust of the executive to make consultation more attractive.

Second, forcing Congress to vote Yay or Nay would give them skin in the game. As it stands, they can claim they supported a war if it’s popular and distance themselves from it the moment things start to go south. Or they can vote to support the war and then pull a Hillary, claiming that they were only supporting the authority to go to war, not going to war itself.

It’s worth remembering that the 1973 War Powers Act was vetoed by President Nixon and required a two-thirds override to pass. One imagines that the same will be true of this War Powers Consultation Act. Getting that degree of consensus for much of anything is going to be incredibly difficult in the current political climate.

Dahlia Lithwick takes to the pages of FireDogLake to explain why, in her view, liberals are much less excited about the Supreme Court than conservatives:

My own impression, having covered the past two presidential elections is that most liberals simply don’t vote with the composition of the Supreme Court in mind at all, or that it ranks somewhere in their top 14 concerns, but rarely breaks into the top five. There is just no analogue on the political left for the focused, court-obsessed judge-watchers who populate the conservative base and holler “activist judge” every time a decision comes down with which they disagree.

I have some theories for why this is the case but look forward to yours: What the Supreme Court does is so removed from public life; the lag time between a court decision and its effects on the ground can be enormous; the court’s work is shrouded in jargon and secrecy; and despite the advancing years of the court’s liberal wing, it’s very hard to scare voters into caring about the Supreme Court with an election ad that warns:

Some justices may leave the court at some point soon. Some other justices may replace them and those new justices may decide some cases we don’t know about yet. And that might be bad for America.

[...]

The reason the conservative base is so very angry at the judiciary – decades of Republican appointees steadfastly but inexplicably refusing to overturn Roe v Wade – is the same reason liberals have become so complacent. We take new justices at their word that they won’t disturb settled precedent. We get sucked into the expert claims that the court decides too few cases (only 67 this term!) to really matter, or the characterization of those decisions as humble or narrow, even when many are nothing of the sort. We secretly believe that no matter who departs the court and who replaces them, the Warren-era achievements are somehow frozen in constitutional amber.

That strikes me as more-or-less right. I’d add, though, that while the Court might be getting more ideologically conservative, the law and society isn’t. Beyond that, while Anthony Kennedy, the current “swing Justice,” is more conservative than his predecessor, Sandra Day O’Connor, centrist conservative judges tend to be extremely deferential to precedent.

There’s simply no analog to the great civil rights controversies of the 1950s and 1960s where the Supreme Court can force the hand of the culture. The closest thing is probably gay rights which, frankly, just isn’t that close.

Arguably, the most salient judicial “voting issue” for liberals is abortion. That issue reflects both the above trends well. Whatever Kennedy’s views on the merits of the Roe precedent, he now views it as settled law, meaning the arguments are now on the very margins of the debate (late term abortion, the precise point of “viability,” and the like). Further, even if, say, a John Paul Stevens were replaced by a Samuel Alito type — the furthest right Justice one can imagine a very Democratic Senate confirming — and they somehow decided to overturn Roe’s Constitutional right to abortion, we wouldn’t return to anything like a pre-Roe status quo.

The FBI headquarters complex has a wee problem:

“The Hoover Building does not meet the Interagency Security Committee’s criteria for a secure Federal facility capable of handling intelligence and other sensitive information,” the Senate Appropriations Committee observed in a new report on the 2009 Commerce, Justice and State Appropriations bill.

“The Committee finds these conditions unacceptable and directs the Government Accountability Office [GAO] to review the Hoover Building and associated off-site locations, and provide a analysis of the FBI’s ability to fulfill its mission and security requirements under the present circumstances,” the report said.

Given that the FBI is the lead agency in domestic counterterrorism, either the rules or the building need changing, stat.  Steve Aftergood reports that they’ve come up with a bizarre work-around:

The FBI is in the process of constructing a Central Records Complex outside of Washington, DC. When completed, it will provide secure, centralized storage for classified intelligence, consistent with the security requirements of Director of Central Intelligence Directive (DCID) 6/9 and related guidelines.

Now, I’m all for moving sensitive information and, indeed, most federal bureaucratic activities, outside DC and, preferably, the National Capital Region for reasons I won’t get into here.  But one would think the FBI headquarters building ought to be properly equipped to handle classified information.  Alternatively, if there is no reason to think that it isn’t, then we should quit inventing arbitrary rules that require massive expenditures to achieve unnecessarily restrictive standards.

Lt. Cmdr. William Kuebler, who is serving as the defense attorney for Canadian citizen Omar Khadr’s war crimes trial (previously discussed on OTB here) has divulged that the Pentagon has been urging interrogators in Guantanamo Bay to destroy all of their notes regarding their interrogation of detainees.

The Pentagon urged interrogators at Guantanamo Bay to destroy handwritten notes in case they were called to testify about potentially harsh treatment of detainees, a military defense lawyer said Sunday.

The lawyer for Toronto-born Omar Khadr, Lt. Cmdr. William Kuebler, said the instructions were included in an operations manual shown to him by prosecutors and suggest the U.S. deliberately thwarted evidence that could help terror suspects defend themselves at trial.

Kuebler said the apparent destruction of evidence prevents him from challenging the reliability of any alleged confessions.

[...]

The case against Khadr, who was captured in Afghanistan when he was 15, is on track to be one of the first to trial. He faces war-crimes charges including murder for allegedly throwing a grenade that killed a U.S. Special Forces soldier during a 2002 firefight.

Kuebler said the nature of the interrogations is particularly relevant in Khadr’s case because prosecutors are relying on evidence “extracted” from him at Bagram air base in Afghanistan and at Guantanamo.

“If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar’s lawyers of key evidence with which to challenge the reliability of his statements,” Kuebler said in an e-mail to reporters. [emphasis added]

I am racking my brain to come up with a reason to destroy interrogation notes that doesn’t involve covering up evidence of a crime, but am so far coming up short. Using torture and other coercive interrogation techniques to extract confessions is not only morally outrageous, but history has shown time and time again that the typical results are false confessions. I hope that Lt. Cmdr. Kuebler is successful in fighting this and gets the charges dismissed.

UPDATE (James Joyner): Alex has asked me to weigh in, based on my military background, about the nature of manuals, SOPs, and the like. Specifically: Who writes them? Who approves them? How do soldiers view them?

This depends largely on the type of document. Field Manuals, training manuals, and similar publications prepared for widespread dissemination — the entire DoD, one of the Services (Army, Navy, Air Force, Marines), or even an occupational specialty (Infantry, Military Police, etc.) — are typically written by a team of people supervised by someone of middle management rank (a field grade officer or civilian equivalent). Presumably, those that address matters pertaining to the Joint Staff and the like are staffed and approved at higher levels. They’re approved higher up the food chain but seldom at the level of political policy-maker. They’re taken rather seriously by the troops but generally don’t have enforcement provisions.

In this particular case, we’re talking about a much lower-level publication. Specifically, as the affidavit (PDF link provided by Lyle Denniston, who has some interesting thoughts on the legal matters Alex discusses above) makes clear, we’re talking about an organizational SOP. Specifically, a “Tiger Team SOP” with limited scope: “These procedures and responsibilities apply to Tiger Teams serving within the Interrogation Control Element (ICE), Joint Interrogation Group (JIG) of Joint Task Force (JTF) GTMO.”

Most likely, these were written by a relatively low level soldier — perhaps a senior NCO or company grade officer (I wrote these kinds of things as a 2nd Lieutenant) and approved by the JTF commander or perhaps his operations officer. Once promulgated, the members of the Tiger Teams would have felt obligated to carry them out unless they had strong moral objection or thought they were doing something illegal. Most personnel would take specific instructions in an organizational SOP as the equivalent of a written order from the commander.

Joint Task Force (JTF) GTMO, incidentally, is commanded by a one-star rear admiral.

Update (Alex Knapp)

Now that I’ve delved a little more deeply into this, a few more things have come to light.

(1) The operations manual apparently only orders the destruction of the handwritten notes after the creation of formalized typed notes or a formal intelligence report.

(2) Under normal circumstances, that type of procedure would probably be acceptable, and there’s not too much to object to there.

(3) The key words, though, are “under normal circumstances.” The Defense counsel in this case are making the argument that the handwritten notes should be preserved in order to impeach hearsay testimony. In a normal court of law, of course, this would not be necessary because hearsay is typically inadmissible (although there are exceptions). In the detainee trials at Guatanamo, however, hearsay is admissible, and so defense counsel wants access to the original notes.

As a policy matter, I would prefer that these notes be kept for detainee hearings. This is because I generally favor a maximum amount of transparency when it comes to prisoner interrogations in any setting. Indeed, if it were up to me, every interrogation in the criminal justice system would be videotaped (as is the law already in a handful of states). That said, from the standpoint of the current law, there may not be anything illegal in what has been ordered. And given that the handwritten notes are replaced with formal notes and/or reports, the taint of coverup in the initial reports is markedly diminished.

However, these issues only serve to further illustrate the legal frustrations that have shadowed the Guantanamo Bay detentions ever since 2001. Given that in the “War on Terror” we are not necessarily engaged in hostile military actions against governments, and that the duration of the “War” is pretty much indefinite–there’s always going to be “terror groups” out there, so it’s not like we can pretend we’re just holding them for the duration of hostilities–the need for a more reliable legal process is a necessity. But neither the Administration, Congress, or the Courts seems to be in much of a hurry to do so. The lack of proper procedures, the treatment of detainees, and the insistence on secrecy have cost us moral authority and prestige. Not to mention that our actions have only served to distance us from valued allies (Khadr, for example, is a Canadian citizen) while at the same time serving as convenient propagada for al-Qaeda and other guerilla outfits.

I do not necessarily subscribe to the view that the detainees in Guantanamo and other U.S. controlled foreign prisons need to tried in civilian courts in the U.S. But there does need to be fair, transparent procedures in place to protect the rights of those detainees. Transparency of the interrogation process and eliminating the use of hearsay in legal proceedings would be a good start.

Steven Aftergood has an interesting look at a proposal from Jane Harmon to formalize the concept of “controlled unclassified information” (CUI) that the White House rolled out on a trial balloon basis last month.

Aftergood is dubious of the so-called “The Improving Public Access to Documents Act” and I mostly defer to him on this matter.

[I]t is tactically unwise to lock into statute an executive branch “framework” that still remains largely undefined and that may be subject to significant modification in the course of its projected five-year implementation period. The CUI Office at the National Archives that is supposed to develop the implementing regulations referenced in the bill does not even have its own funding this year, and has also missed the funding cycle for next year.

Among other questionable features (and some positive ones), the bill regrettably endorses the executive branch view of the Freedom of Information Act as the proper channel for public access to agency information on homeland security and related topics. Thus, the bill says, “The Department [of Homeland Security] should start with the presumption that all homeland security information that is not properly classified, or marked as controlled unclassified information and otherwise exempt from disclosure, should be shared with the public pursuant to section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act’).”

This is not a “presumption” — disclosure of non-exempt information pursuant to FOIA is already required by law — and it would not “improve public access.” To the contrary, by presenting disclosure under FOIA as the primary alternative to classification or control, the bill would place an impossible burden on the FOIA process, and would diminish agency responsibility to unilaterally disclose homeland security information that has not been formally requested.

Fair enough. Our goal should be making it easier, not harder, for journalists, scholars, and other interested citizens to get access to information about how their government operates.

In theory, though, a bill could be written that would actually achieve the titular objective. A regulatory scheme that provides rules for internal handling and dissemination of information but that stops short of formal classification is, theoretically, a good idea. Once something is classified, it’s ridiculously hard to overcome inertia even if it only needed to be held close for a very short period of time. Ending the practice of stamping that sort of material — including huge documents with only a sentence of such material — “classified” could be a boon.

My suspicion, unfortunately, is that the bill which actually emerges — at least after the bean counters lard it with “clarifying” regulation — will further the tendency to treat routine operating information as sensitive and thus not sharable with the public because those who would do us harm could cobble together something damaging from bits and pieces of information that, in isolation, are innocuous.

The United States government is thinking about coming up with a coherent system for dealing with classified information. Steven Aftergood has details.

U.S. intelligence agencies have embarked upon a process to develop a uniform classification policy and a single classification guide that could be used by the entire U.S. intelligence community, according to a newly obtained report (pdf) from the Office of the Director of National Intelligence.

The way that intelligence agencies classify information is not only frustrating to outsiders, as it is intended to be, but it has also impeded interagency cooperation and degraded agency performance.

[...]

“The definitions of ‘national security’ and what constitutes ‘intelligence’ — and thus what must be classified — are unclear,” the review team found. “Many interpretations exist concerning what constitutes harm or the degree of harm that might result from improper disclosure of the information, often leading to inconsistent or contradictory guidelines from different agencies.” “There appears to be no common understanding of classification levels among the classification guides reviewed by the team, nor any consistent guidance as to what constitutes ‘damage,’ ’serious damage,’ or ‘exceptionally grave damage’ to national security… There is wide variance in application of classification levels.”

Among the recommendations presented in the initial review were that original classification authorities should specify clearly the basis for classifying information, e.g. whether the sensitivity derives from the content of the information, or the source of the information, or the method by which it is analyzed, the date or location it was acquired, etc. Current policy requires that the classifier be “able” to describe the basis for classification but not that he or she in fact do so.

Coming up with a less lousy system shouldn’t be hard but Steven is rightly skeptical:

First, it assumes that consistency in classification is intrinsically desirable and should therefore be imposed by a community-wide classification guide. But consistency is at most a secondary virtue. When a classification policy is poorly justified, it is preferable for it to be inconsistently applied, as in the case of intelligence budget secrecy (see below).

Second, the review does not touch upon what is probably the single most necessary change in intelligence classification policy, namely the need to narrow the definition of intelligence sources and methods that require protection. Almost anything can serve as an intelligence source or method, including a subscription to the daily newspaper. But not every intelligence source or method requires or deserves classification or other protection from disclosure.

It’s axiomatic that coming up with system that is both standardized and lousy is a bad thing. But the second issue is really the key: Too many things are deemed classifiable and, once that decision is made, it’s hard to unclassify the material because of bureaucratic inertia.

Researching my dissertation in the early 1990s, I did archival research of military documents from 1943-1948 relating to the “roles and missions” debate (that is, what the proper roles of the Army, Navy, Air Force and Marines were vis-a-vis one another). An amazing amount of that material had only recently been de-classified even though none of it should ever have been classified. There were no technical details involved in these documents that would have been of value to the enemy; it was nothing more than bureaucratic infighting about whether the Navy should be permitted to keep its airplanes now that there was a Navy, whether the Marines should continue to be allowed to maintain, in effect, a second land Army, and so forth. Indeed, even press releases that were to be published in the New York Times a few hours hence were classified. That’s simply nonsense.

Sometimes, incidentally, the reverse error occurs. As the leader of a rocket artillery firing platoon in the closing days of the Cold War, I had a “battle book” containing maps with the detailed locations to which my unit would initially deploy for war. It contained the locations of my three launchers, my fire direction center, the other platoons in the battery, the battery tactical operations center, the other firing batteries, and the battalion headquarters. I was classified SECRET, which is the lowest level anyone bothers to pay attention to.

At 12:20 Eastern yesterday, I got a CNN Breaking News alert that read, in its entirety, “Britain’s Prince Harry has been serving on the front line in Afghanistan, CNN confirms.” I found it mildly interesting, in that his superiors had previously decided the security risk in sending him to Iraq was too high, but didn’t have anything significant to say about the matter and had plenty of other work to do.

The Independent’s Terry Judd, though, adds a twist: “Prince’s cover in Afghanistan blown by Drudge Report.”

An American website, the Drudge Report, broke a news blackout yesterday by revealing that Prince Harry has been serving in Afghanistan for more than two months.

To the fury of the Ministry of Defence and condemnation from the head of the British Army, General Sir Richard Dannatt, the website announced a “world exclusive” and proclaimed: “They’re calling him ‘Harry the Hero!”.

The article brought to an end an agreement with the media that the Prince’s deployment to Helmand be kept quiet in the interests of his safety and that of the soldiers with him.

The decision to send Prince Harry, 23, to Afghanistan under a cloak of secrecy came after the furore that followed the revelation of his proposed deployment to Iraq. Much to the Prince’s frustration, General Dannatt announced in May last year that it would be too risky, fearing the Prince and his comrades in the Household Cavalry would become top priority targets for insurgents.

Immediately, officers decided the only way the third-in-line to the throne could continue to do his duty without creating an additional security risk was to send him secretly, calling on the media to co-operate in a news blackout. By July, editors of key newspapers and broadcasting organisations were sounded out to see if such assistance would be forthcoming. Without dissent, all agreed that it was the only sensible and safe solution. In December, days before Cornet Wales – as the Prince is known in The Blues and Royals – deployed to Helmand, editors met MoD officials and signed an understanding setting out the terms of the news blackout. While not a legally binding document, it was a statement of faith from the British press.

It is thought the source for the Drudge Report article was a story printed last month in an Australian women’s magazine, New Idea. The Drudge Report is most famous for breaking the Monica Lewinsky scandal after Newsweek decided not to publish the story.

At 3.30pm yesterday the MoD received a call, confirming fears that a foreign news organisation would break the silence. A decision was taken to make a formal statement confirming the Prince had been in Afghanistan. “I am very disappointed that foreign websites have decided to run this story without consulting us. This is in stark contrast to the highly responsible attitude that the whole of the UK print and broadcast media, along with a small number of overseas outlets, who have entered into an understanding with us over the coverage of Prince Harry on operations,” General Dannatt said. “The editors took the commendable attitude to restrain their coverage. I would like to thank them for that.”

Presumably, Matt Drudge was not a signatory to said agreement and had no duty to abide by it. And, contrary to what John Aravosis, Logan Murphy, and Keith Olbermann are saying, it’s not as if he was revealing secret troop movements; the existence of British patrols in Helmand province was well known.

Still, one longs for the old days when gentlemen’s agreements like this were honored for their own sake. Indeed, it’s somewhat surprising that the news blackout on this story was as successful as it has been. Allowing Harry to do his duty outside the spotlight and without creating a high profile target for the Taliban is a noble gesture and far outweighs whatever “public right to know” that would have justified breaking the embargo.

That, of course, is over. The decision has naturally been made to cut his tour short.

A formal decision will be announced within the next hour to confirm the 23-year-old officer’s war has come to an end.

Harry is still out on operations in the Helmand desert with his troop of Household Cavalry – where he is considered safe for the time being. But top brass have accepted Taliban fighters will now be doing their all to find him. And Harry has agreed that he will leave the war torn country within the next 72-hours for a flight home to the UK. But the precise extraction plan will be kept a closely guarded secret to protect his safety.

The news comes after Taliban fanatics were feared to be hunting down Harry after he secretly fought in the Afghan badlands for ten weeks.

The young lieutenant killed up to 30 of the enemy on his frontline tour by directing at least THREE air strikes.

One suspects that his services as a forward air controller can be easily replaced. His especial value was the symbolism of having a prince in harm’s way. To some extent, it could be argued, the publicity value is heightened now that the secret’s out of the bag and that’s not entirely a bad thing as NATO is scrambling to support the Afghanistan mission. But one would have preferred that he be permitted to finish his tour as just another lieutenant.

Photo credit: The Guardian/John Stillwell/PA

UPDATE: Alex Massie passes on word that several British bloggers, and even celeb gossip site Popbitch, had knowledge of Harry’s whereabouts and sat on the story despite the sacrifice of traffic (and presumably, ad revenue) that this entailed. Good for them.

America’s greatest journalist, Radley Balko, has an excellent piece on why a Clinton II Presidency would differ very little from the Bush II Presidency.

For seven years, the left has been up in arms about President Bush’s aggressive foreign policy, his secrecy, his partisanship, and his expansive claims on executive power. It’s odd, then, that they’re prepared to nominate Hillary Clinton to carry the party into the 2008 elections.

[...]

Then there is Hillary Clinton on the issues. Cato Institute President Ed Crane recently wrote a piece for the Financial Times pointing out that when you strip away the partisan coating, Mrs. Clinton’s grandiose, big-government vision is really no different than that envisioned by the neoconservatives so loathed by the left. Clinton, remember, not only voted for the Iraq war, she still hasn’t conceded she was wrong to do so, and has made no promise to end it any time soon.

[...]

Hillary Clinton voted for both the Patriot Act and its reauthorization. She voted for building a wall on the U.S.-Mexican border. She voted to loosen restrictions limiting the federal government’s ability to wiretap cell phones. In the past, she has supported a robust role for the federal government in enforcing “decency” standards in television and music. She teamed up with former Sen. Rick Santorum on a bill calling for the federal government to restrict the sale of violent video games.

[...]

What about secrecy and executive power? It’s difficult to see Hillary Clinton voluntarily handing back all of those extra-constitutional executive powers claimed by President Bush. Her husband’s administration, for example, copiously invoked dubious “executive privilege” claims to keep from complying with congressional subpoenas and open records requests—claims the left now (correctly, in my view) regularly criticizes the Bush administration for invoking.

Hillary Clinton herself went to court to keep meetings of her Health Care Task Force secret from the public, something conservatives were quick to point out when leftists criticize Vice President Cheney’s similar efforts to keep meetings of his Energy Task Force secret.

Read the whole thing.

Personally, my Election 2008 nightmare is one in which next November, the country is forced to choose between Hillary Clinton and Rudy Giuliani. Both persons are, by personality and inclination, more authoritarian than just about anyone else in the field. Both are smart enough to take advantage of the past two decades of increasingly consolidated presidential authority to bolster their own power. Both seem to think that the threat of military force is the end-all be-all of American diplomacy. Both have little regard for individual liberty.

And both of them are the current frontrunners.

Judge Victor Marrero has again struck down a portion of the USA Patriot Act.

A federal judge struck down a key part of the USA Patriot Act on Thursday in a ruling that defended the need for judicial oversight of laws and bashed Congress for passing a law that makes possible “far-reaching invasions of liberty.” U.S. District Judge Victor Marrero immediately stayed the effect of his ruling, allowing the government time to appeal.

[...]

The ACLU had challenged the law on behalf of an Internet service provider, complaining that the law allowed the FBI to demand records without the kind of court supervision required for other government searches. Under the law, investigators can issue so-called national security letters to entities like Internet service providers and phone companies and demand customers’ phone and Internet records.

In his ruling, Marrero said much more was at stake than questions about the national security letters. He said Congress, in the original USA Patriot Act and less so in a 2005 revision, had essentially tried to legislate how the judiciary must review challenges to the law. If done to other bills, they ultimately could all “be styled to make the validation of the law foolproof.”

Noting that the courthouse where he resides is several blocks from the fallen World Trade Center, the judge said the Constitution was designed so that the dangers of any given moment could never justify discarding fundamental individual liberties. He said when “the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty.” Regarding the national security letters, he said, Congress crossed its boundaries so dramatically that to let the law stand might turn an innocent legislative step into “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

He said the ruling does not mean the FBI must obtain the approval of a court prior to ordering records be turned over, but rather must justify to a court the need for secrecy if the orders will last longer than a reasonable and brief period of time.

A March government report showed that the FBI issued about 8,500 national security letter, or NSL, requests in 2000, the year prior to passage of the USA Patriot Act. By 2003, the number of requests had risen to 39,000 and to 56,000 in 2004 before falling to 47,000 in 2005. The overwhelming majority of the requests sought telephone billing records information, telephone or e-mail subscriber information or electronic communication transactional records.

The judge said that through the NSLs, the government can unmask the identity of Internet users engaged in anonymous speech in online discussions, can obtain an itemized list of all e-mails sent and received by someone and can then seek information on those communicating with the individual. “It may even be able to discover the web sites an individual has visited and queries submitted to search engines,” the judge said.

[...]

Marrero had ruled in 2004, on the initial version of the Patriot Act, that the letters violate the Constitution because they amounted to unreasonable search and seizure. He found free-speech violations in the nondisclosure requirement, which for example, disallowed an Internet service provider from telling customers their records were being turned over to the government. After he ruled, Congress revised the Patriot Act in 2005, and the 2nd U.S. Circuit Court of Appeals directed that Marrero review the law’s constitutionality a second time.

This ruling strikes me as perfectly reasonable, if rather longwinded for a trial court judge (it’s 106 pages! [PDF of decision]). He didn’t invalidate the practice of issuing NSLs, which may well be a vital investigative technique, but rather the gag rule which “violates the First Amendment and the Constitution’s separation of powers provisions because it effectively prohibits recipients of the FBI letters (NSLs) from revealing their existence and does not provide adequate judicial oversight of the process.”

According to Dan Eggen’s front page report in today’s WaPo, “The FBI says it typically orders that such letters be kept confidential to make sure that suspects do not learn they are being investigated, as well as to protect ’sources and methods’ used in terrorism and counterintelligence probes.” This justification strikes me as rather silly, and surely insufficient to override fundamental civil liberties enshrined in the Bill of Rights. After all, the country was founded on the idea that certain rights were “inalienable.”

Jeralyn Merritt provides background on the NSL’s and the case. WaPo published a column by an anonymous victim of the NSL gag order in March.

Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

The inspector general’s report makes clear that NSL gag orders have had even more pernicious effects. Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI’s actions would have been subject to some degree of public scrutiny. To be sure, not all recipients would have spoken out; the inspector general’s report suggests that large telecom companies have been all too willing to share sensitive data with the agency — in at least one case, a telecom company gave the FBI even more information than it asked for. But some recipients would have called attention to abuses, and some abuse would have been deterred.

Steven Taylor is right: “The situation is one that should be utterly unacceptable in the United States of the America.”

I’m willing to give the government some latitude in the war against terrorists, including allowing data mining and other broad intelligence gathering techniques with minimal intrusion on individual privacy. If, however, the FBI wants access to specific records of specific individuals, there’s simply no reason not to require them to get warrants and be subject to judicial oversight as required by the 4th Amendment. And the gag orders are repugnant on their face.

As the sorry spectacle of the investigation into the firing of a dozen U.S. Attorneys for political purposes has unfolded, it’s been rather clear that Attorney General Alberto Gonzales has been both an incompetent administrator of his Department and a really bad liar, doing a lousy job of covering up something that almost surely didn’t need to be covered up. His testimony to Congress on the matter has been incoherent, contradictory, and, at best, disengenuous. He should have been fired long ago and President Bush’s insistence on sticking by him is baffling.

Oddly, however, Senate Democrats are now seriously pursuing a perjury probe over what seems, on the surface at least, among the least significant contradictions in his testimony and one that would be the hardest to prove. The dispute over which classified intelligence program was briefed to Congress three years ago strikes me as trivial. The smoking gun documents which allegedly contradict his testimony don’t prove much of anything.

Moreover, as unpopular as this administration is, the politics of this make little sense. This matter is incredibly complicated and convoluted, owing to the classification and technical nature of the programs in question, the long timeframe over which all this has evolved, and the intermingling of so many other issues. Indeed, having read the major news stories on the latest charges this morning, I’m not sure I quite understand them. And I’ve been paying far, far more attention to this than Joe Public.

While I think the Imperial Presidency charges are overblown, there’s not much doubt that the administration’s penchant for secrecy and claim to be the sole decider on matters of national security policy stretch the concept of checks and balances beyond recognition. Congress is right to fight back as an institution jealous of its own power; indeed, my guess is that would be happening even if the Republicans had retained the majority. This particular hill, however, seems a strange choice upon which to make that stand.

UPDATE: Kevin Drum and, especially, Steve Benen disagree. I remain unconvinced that the differing post-hoc recollections by two officials about which classified intelligence program a particular meeting was about rises to the level of perjury.

Jim Henley, responding to a Brian Doherty piece commemorating the 100th anniversary of Robert Heinlein’s birth and the “rough-hewn anti-government but pro-defense message” of his work, observes that, “The problem with the H-G fusion of militarism and limited government is that the former always ends up eating the latter.”

That’s likely right, in that even the most noble wars are incredibly expensive and require secrecy and a collective consciousness. I’m sure Jim would agree that wars are occasionally worth that sacrifice. An attack on the homeland is the most obvious case but there are others, such as World War II, when most are willing to make that trade-off.

The problem, then, is with a permanent war footing. Unfortunately, that has more-or-less been the norm the last several decades. World War II’s postwar division of Europe into zones quickly led to the Cold War with its numerous standoffs, proxy wars, and spin-offs large and small, including Vietnam and Korea. The post-Cold War peace dividend largely failed to emerge, as a dozen or more peacekeeping, humanitarian intervention, warlord chasing, endeavors with optimistic code names like Uphold Democracy and Restore Hope followed.

A president who campaigned on the premise of No More Nation Building quickly became the second incarnation of Woodrow Wilson, wanting to bring terrorists to justice while simultaneously spreading democracy throughout the Middle East, thus bringing to fruition his father’s vision of a New World Order.

In the back-and-forth in the comments section of a recent post, I noted that,

[P]residents from both parties routinely see the use of force as being in the U.S. national interest despite the situation at hand often not being amenable to military solution. At some point, either the public is going to have to insist that not happen or the military is going to have to adapt to that reality.

Jim, naturally, prefers the former.

The other path leads to national ruin. It may take a long time; it may take a short time; but hubris always precedes a fall, and the assumption that the US should properly be involved in some war some where “routinely” is hubris straight up. It is immoral, imprudent and financially calamitous.

I’m inclined to agree. Indeed, with the notable exceptions of the Afghanistan and Iraq Wars, that’s been my position on all of our post-Desert Storm endeavors big and small. Afghanistan was never controversial, given that it was the classic case of responding to an attack on the homeland. It took months of convincing to get me on board the Iraq bandwagon, and then only for reasons unrelated to nation-building.

Unfortunately, as the rest of Jim’s post makes clear, there is a longstanding, bipartisan consensus that will seemingly lead to us continuing to get into these messes. Despite the overwhelming public disapproval of the ongoing war in Iraq and the seeming movement of a large part of the Democratic base back into a position of reflexive anti-militarism, I suspect that we’ll continue to insert ourselves on a routine basis into messes halfway around the world.

My grad school mentor, Don Snow, attributed this tendency to what he termed the “Do Something Syndrome.” Bad things are happening right there on our television screens and, by golly, we’re the richest, most powerful, most decent country in all creation. We put a man on the moon! Surely, we have to do something!

Given that we have a large standing military that can quickly be deployed by the mere command of the president, that something almost always involves troops. That militaries in general and our military in particular is not the best tool for building a nation is both not widely understood by policy makers and rendered moot by the fact that there’s nobody else to send, really.

So, while I agree that we need to change our political culture so that we aren’t sending the troops off on a routine basis, it seems to me that we have to recognize that this is unlikely to happen anytime soon. Thus, adapting the military to best deal with that reality strikes me as the best likely option.

The White House says that the president’s and vice president’s staff was always intended to be exempt from a presidential order describing the handling of classified documents, Josh Meyer reports.

The White House said Friday that, like Vice President Dick Cheney’s office, President Bush’s office is not allowing an independent federal watchdog to oversee its handling of classified national security information. An executive order that Bush issued in March 2003 — amending an existing order — requires all government agencies that are part of the executive branch to submit to oversight. Although it doesn’t specifically say so, Bush’s order was not meant to apply to the vice president’s office or the president’s office, a White House spokesman said.

The president, as the sole authority for issuing Executive Orders, has an absolute right to exempt whomever he wishes from the. Still, it’s a horrible idea to exempt the Executive Office of the President and Office of the Vice President from this scrutiny, since they represent the probably the greatest breach threat in the Executive branch: people who have not spent their whole careers dealing with Sensitive Compartmented Information who are presumably dealing with the mostly highly sensitive materials.

[Democratic Congressman Henry] Waxman and J. William Leonard, director of the Information Security Oversight Office, have argued that the order clearly applies to all executive branch agencies, including the offices of the vice president and the president.

The White House disagrees, [White House spokesman Tony] Fratto said. “We don’t dispute that the ISOO has a different opinion. But let’s be very clear: This executive order was issued by the president, and he knows what his intentions were,” Fratto said. “He is in compliance with his executive order.” Fratto conceded that the lengthy directive, technically an amendment to an existing executive order, did not specifically exempt the president’s or vice president’s offices. Instead, it refers to “agencies” as being subject to the requirements, which Fratto said did not include the two executive offices. “It does take a little bit of inference,” Fratto said.

Steven Aftergood, director of the Federation of American Scientists’ government secrecy project, disputed the White House explanation of the executive order. He noted that the order defines “agency” as any executive agency, military department and “any other entity within the executive branch that comes into the possession of classified information” — which, he said, includes Bush’s and Cheney’s offices.

Aftergood’s interpretation of the language of the Order is reasonable enough. Still, if the president decides that the orders he issues don’t apply to himself, his staff, or Bob in Accounting, that’s his call. It’s a bad call, in my judgment, but one that’s his to make.