Jun 18

Last month the Director of National Intelligence transmitted to Congress the Obama Administration’s proposed language for next year’s Intelligence Authorization Act.  This week, the Administration forwarded several additional proposals.  To its credit, the Senate Intelligence Committee has made this material available for public review on its web site.

Unsurprisingly, the proposed language would generally tend to expand intelligence agency authority while relaxing existing controls.

For example, the draft bill (pdf) would grant the DNI a new exemption under the Freedom of Information Act for “operational files.”  Under this provision, if an intelligence agency that has its own operational file exemption transfers an operational file to the ODNI, the transferred information would retain its exempt status.  (Normally, operational file information that is disseminated beyond the originating agency would lose its exemption from review under FOIA.)

In order to preserve the security of intelligence sources and methods and to promote information sharing, DNI Blair testified (pdf) last month, “It is imperative that those [operational] files are accorded the same protections at the ODNI as they are accorded at the CIA [for example].”

Recent experience suggests otherwise, however.  In 2005, FAS sought certain unclassified budget records from the National Reconnaissance Office, which the NRO denied because it said they were “operational files.”  We challenged that position in a FOIA lawsuit and a court ruled (pdf) that the NRO’s claim to an operational file exemption was not valid due in part to the fact that the document had been disseminated outside of the agency to the ODNI.  More than a hundred (pdf) partially redacted pages were found to be releasable.

At least a few lessons emerge from this episode:  First, it appears that intelligence agencies have a tendency to invoke the operational files exemption more broadly than is justified, in an attempt to exclude releasable records from processing under the FOIA.  Second, the loss of the NRO’s operational file exemption in this case had no adverse effect on information sharing within the intelligence community.  The NRO did not and could not have stopped sharing its budget documents with the ODNI.  Third, the processing of these records under FOIA did not result in any uncontrolled release of classified information or of sensitive intelligence sources and methods.  It just didn’t.

Aside from the operational files exemption, the Administration’s draft intelligence authorization bill also would exempt the ODNI from the open meeting requirements of the Federal Advisory Committee Act.  It would cancel several existing reporting requirements.  And so forth.

Here are a few hypothetical secrecy reform provisions that were not included in the Administration’s draft bill:

  •   A requirement that intelligence agencies perform a top-to-bottom review of all of their classification guides with the objective of eliminating all obsolete or unnecessary classification requirements.  Modeled on the 1995 Fundamental Classification Policy Review at the Department of Energy, such a process should include appropriate channels for public input and review, along with the participation of subject matter experts other than the original classifier.
  •   A revision of the National Security Act of 1947 to clarify that the requirement to protect intelligence sources and methods is limited only to those sources and methods that would be jeopardized or compromised to the detriment of national security if revealed.
  •   An instruction to the DNI Open Source Center that OSC products that are neither classified nor copyrighted should be made available to the public.

written by Steven Aftergood

Jun 18

The Senate on June 17 passed a bill sponsored by Senators Joseph Lieberman and Lindsey Graham that would exempt from the Freedom of Information Act certain photographs documenting the abuse of detainees held in U.S. custody.  Senator Graham said that if the bill was not enacted into law, the Obama Administration had assured him it would classify the photos to prevent their release.  “Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day,” he said.

Strictly speaking, however, classification alone is not sufficient to exempt any such record from the FOIA.  It must also be “properly classified,” and that is a determination that is to be made by a court of law.

Senate Jay Rockefeller introduced a bill to limit the abuse of the “sensitive security information” (SSI) marking to withhold certain health and safety information from the public.  “When an industrial emergency happens and threatens the lives of residents, workers and first responders, I absolutely believe the public has the right to receive important information about what it means for them and their health,” he said. “Period.”

Strictly speaking, again, the bill (pdf) does not modify the definition of “sensitive security information” nor does it even place public health and safety considerations on an equal footing with security.  Rather, it simply prohibits the deliberate, witting abuse of the SSI control marking.

The Senate Judiciary Committee again postponed its consideration of the State Secrets Protection Act (S.417) that would limit the ability of the executive branch to terminate litigation by invoking the privilege.  Senator Orrin Hatch outlined his opposition to the bill in a floor statement last week.  “Unless serious changes are made to this legislation and the amendments offered by myself and my Republican colleagues are adopted, I cannot in good conscience vote this bill out of committee,” he warned on June 10.

written by Steven Aftergood

Jun 18

The U.S. Air Force last month issued revised doctrine on “nuclear operations,” incorporating the conclusions of the 2001 Nuclear Posture Review. But it is nearly obsolete upon release, since a new Nuclear Posture Review that will presumably lead to a revised policy is already underway.  The new Air Force doctrine may be of interest nevertheless, since it presents an Air Force perspective on enduring issues of nuclear deterrence and nuclear command and control in easily understandable, mostly jargon-free terms.  See “Nuclear Operations” (pdf), Air Force Doctrine Document 2-12, May 7, 2009.

The text of a proposed agreement (pdf) between the United States and the United Arab Emirates concerning cooperation in the peaceful uses of nuclear energy was transmitted by the White House to Congress last month, along with assorted supporting materials.

written by Steven Aftergood

Jun 17

The rise of “the wall” between intelligence and law enforcement personnel that impeded the sharing of information within the U.S. government prior to September 11, 2001 was critically examined in a detailed monograph (pdf) that was prepared in 2004 for the 9/11 Commission.  It is the only one of four staff monographs that had not previously been released.  It was finally declassified and disclosed earlier this month.

In April 2004, Attorney General John Ashcroft testified (pdf) that the failure to properly share threat information in the summer of 2001 could be attributed to Justice Department policy memoranda that were issued in 1995 by the Clinton Administration.  That is an erroneous oversimplification, the staff monograph contends:  “A review of the facts… demonstrates that the Attorney General’s testimony did not fairly and accurately reflect” the meaning or relevance of those 1995 policy documents.  For one thing, those policies did not even apply to CIA and NSA information, which could have been shared with law enforcement without any procedural obstacles.

But if Attorney General Ashcroft was misinformed, he was not alone.  The 1995 procedures governing information sharing between law enforcement and intelligence “were widely misunderstood and misapplied” resulting in “far less information sharing and coordination… than was allowed.”  In fact, “everyone was confused about the rules governing the sharing and use of information gather in intelligence channels.”

“The information sharing failures in the summer of 2001 were not the result of legal barriers but of the failure of individuals to understand that the barriers did not apply to the facts at hand,” the 35-page monograph concludes.  “Simply put, there was no legal reason why the information could not have been shared.”

The prevailing confusion was exacerbated by numerous complicating circumstances, the monograph explains.  The Foreign Intelligence Surveillance Court was growing impatient with the FBI because of repeated errors in applications for surveillance.  Justice Department officials were uncomfortable requesting intelligence surveillance of persons and facilities related to Osama bin Laden since there was already a criminal investigation against bin Laden underway, which normally would have preempted FISA surveillance.  Officials were reluctant to turn to the FISA Court of Review for clarification of their concerns since one of the judges on the court had expressed doubts about the constitutionality of FISA in the first place.  And so on.  Although not mentioned in the monograph, it probably didn’t help that public interest critics in the 1990s (myself included) were accusing the FISA Court of serving as a “rubber stamp” and indiscriminately approving requests for intelligence surveillance.

In the end, the monograph implicitly suggests that if the law was not the problem, then changing the law may not be the solution.  The document, which had been classified Secret, was released with some small though questionable redactions.  See “Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations,” 9/11 Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special Projects, August 20, 2004.

written by Steven Aftergood

Jun 17

For the first time in several years, the Senate Select Committee on Intelligence has once again published unclassified responses from the Director of National Intelligence (pdf) to questions for the record arising from the DNI’s 2008 annual threat briefing to Congress.  In the past, such formal responses to Congress have offered an unexpected wealth of information and updated intelligence.

Unfortunately, the latest answers were transmitted to the Committee in May 2008 and not published until May 2009, so to a large extent they are stale, have been overtaken by events, or are of limited historical interest.  But in some cases, they present pithy statements of official policy or otherwise interesting interpretations of events:

“We are unequivocally opposed to leniency for Mr. [Jonathan] Pollard,” the convicted spy.

“For a number of reasons, we believe China poses a significantly greater foreign intelligence threat today than it did during most of the cold war era.”

“The Intelligence Community plays a crucial role in the protection of U.S. persons and national interests from emerging or re-emerging disease outbreaks.  The IC provides earliest possible warning… using both clandestine collection and open source collection of foreign print and electronic media.”

See the DNI responses to questions for the record from the February 5, 2008 hearing on Current and Projected National Security Threats to the United States, transmitted to the Senate Intelligence Committee May 2, 2008.

written by Steven Aftergood

Jun 17

The controversial idea of the “unitary executive” in which all executive power is vested in the President of the United States may be a coherent legal theory.  But in reality, things don’t happen within the executive branch simply because the President commands them.  In practice, what we have is a “fragmentary executive” the efficacy of which is entirely dependent on the competence and the good faith of thousands of officials who must consciously choose to implement the declared policies of the Administration.

With that in mind, it is noteworthy that the Secretary of Energy, Steven Chu, reiterated and endorsed the President’s Freedom of Information Act policy in a memorandum (pdf) to senior Energy Department officials this month.

“All DOE employees have the responsibility to ensure the success of the agency’s FOIA program,” Secretary Chu wrote.  “We can no longer use competing agency priorities and insufficient technological support as a basis for not responding to requests expeditiously.  DOE employees should no longer view FOIA as an additional duty.  It is your responsibility to ensure that FOIA requests are responded to in a timely manner.”

“I want to make it clear that DOE will adhere to the President’s and Attorney General’s guidance,” Secretary Chu concluded.  See “Freedom of Information Act,” memorandum for heads of departmental elements from Energy Secretary Steven Chu, June 5, 2009 (thanks to nukewatch.org).

written by Steven Aftergood

Jun 15

President Obama has still not appointed anyone to the President’s Intelligence Advisory Board (PIAB), Secrecy News has learned.

The PIAB has broad responsibility for conducting internal executive branch oversight of intelligence, and it is specifically charged with alerting the President to intelligence activities that may be unlawful or contrary to executive order or presidential directive.  Although the PIAB rarely releases its findings to the public, it is positioned to play a potentially important role in the intelligence oversight process.  Its actual performance seems to depend on the qualifications of Board members, which have sometimes been minimal, as well as the receptivity of an Administration to the oversight process.

Without any members, the PIAB is “kind of running on autopilot,” said Homer Pointer, counsel to the Board.  But he added that “day to day intelligence oversight marches on,” particularly since the Director of National Intelligence and relevant department heads are required by executive order to report to the Board on a regular basis.

The Boston Globe reported last year that President Bush had “stripped the Board of much of its authority” (“President weakens espionage oversight” by Charlie Savage, March 14, 2008) but Mr. Pointer disputed that assessment.

News reports in January 2009 indicated that President-elect Obama had asked former DNI J. Michael McConnell to serve on the PIAB.  But for whatever reason, a formal appointment of Mr. McConnell has not yet been made, Mr. Pointer said, nor have any other members of the Board been designated.

“We are hopeful that a new Board will be named soon,” Mr. Pointer said.

written by Steven Aftergood

Jun 15

Rep. Frank Wolf (R-VA) placed two “sensitive but unclassified” (SBU) State Department documents in the Congressional Record last week, illustrating the informal, non-binding character of this information control marking.

Rep. Wolf took to the House floor to express his views on the Council on American-Islamic Relations (CAIR), an advocacy organization that he said had unacceptable links to terrorist groups.  CAIR has generally disputed such allegations.

But what is of interest here is Rep. Wolf’s willingness to introduce two State Department cables that are specifically marked “sensitive” and “SBU” and to place them in the public record.  Doing so might annoy the State Department and violate unofficial norms of confidentiality, but it breaks no law.

The problematic aspect of SBU and similar labels is that anyone can mark anything “sensitive” or “for official use only” for any reason.  The system is completely unregulated.  But the flip side is that records bearing such markings are not rigorously protected and in fact are often openly distributed.

As the government moves to replace all kinds of SBU markings with a more uniform “controlled unclassified information” (CUI) system, the expectation is that the standards for applying controls on sensitive but unclassified records will be more clearly articulated, limited and enforced.  By the same token, however, the freewheeling disclosure of such records may grind to a halt.  It’s hard to know in advance if the benefits in terms of public access to government information will exceed the costs.

written by Steven Aftergood

Jun 15

Gen. Stanley McChrystal was confirmed by the Senate last week to be the new commander of U.S. (and NATO) forces in Afghanistan, a role that he assumed today.  But his nomination was opposed by Sen. Russ Feingold (D-WI) who objected to the General’s advancement on unspecified “classified” grounds.

“I oppose the nomination of LTG Stanley McChrystal to command U.S. forces in Afghanistan for two reasons,” Senator Feingold said on June 11. “The first relates to a classified matter about which I have serious concerns. I have conveyed those concerns in a letter to the President.”

The second reason cited by Sen. Feingold was McChrystal’s embrace of interrogation techniques that went beyond those authorized in the Army Field Manual on the subject.

written by Steven Aftergood

Jun 15

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“Comprehensive Nuclear Test Ban Treaty: Updated ‘Safeguards’ and Net Assessments,” June 3, 2009.

“The Role of the Department of Defense During a Flu Pandemic,” June 4, 2009.

“Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States,” June 2, 2009.

“The President’s Office of Science and Technology Policy: Issues for Congress,” updated June 3, 2009.

“Landsat and the Data Continuity Mission,” May 22, 2009.

“Geospatial Information and Geographic Information Systems (GIS): Current Issues and Future Challenges,” June 8, 2009.

written by Steven Aftergood