Intelligence Directive Bars Unauthorized Contacts with News Media

The Director of National Intelligence has forbidden most intelligence community employees from discussing “intelligence-related information” with a reporter unless they have specific authorization to do so, according to an Intelligence Community Directive that was issued last month.

“IC employees… must obtain authorization for contacts with the media” on intelligence-related matters, and “must also report… unplanned or unintentional contact with the media on covered matters,” the Directive stated.

The new Directive reflects — and escalates — tensions between the government and the press over leaks of classified information. It is intended “to mitigate risks of unauthorized disclosures of intelligence-related matters that may result from such contacts.” See Intelligence Community Directive 119, Media Contacts, March 20, 2014.

Significantly, however, the new prohibition does not distinguish between classified and unclassified intelligence information. The “covered matters” that require prior authorization before an employee may discuss them with a reporter extend to any topic that is “related” to intelligence, irrespective of its classification status.

The Directive prohibits unauthorized “contact with the media about intelligence-related information, including intelligence sources, methods, activities, and judgments (hereafter, ‘covered matters’).”

If an employee’s contact with the media involves an unauthorized disclosure of classified information, then he could be subject to criminal prosecution. But even if classified information were not communicated to the reporter, the Directive indicates, violation of the new policy “at a minimum… will be handled in the same manner as a security violation.”

“IC employees who are found to be in violation of this IC policy may be subject to administrative actions that may include revocation of security clearance or termination of employment,” the Directive states.

The new Directive creates an anomalous situation in which routine interactions that are permissible between an intelligence employee and an ordinary member of the public are now to be prohibited if that member of the public qualifies as “media.”

So under most circumstances, an intelligence community employee is at liberty to discuss unclassified “intelligence-related information” with his or her next-door neighbor. But if the neighbor happened to be a member of the media, then the contact would be prohibited altogether without prior authorization.

Meanwhile, the Directive defines membership in “the media” expansively. It is not necessary to be a credentialed reporter for an established news organization. It is sufficient to be “any person… engaged in the collection, production, or dissemination to the public of information in any form related to topics of national security….”

Moreover, even approved contacts are to be formally documented for future review. “IC elements should ensure their records on media contacts are sufficient to support executive and legislative branch oversight requirements.”

Essentially, the Directive seeks to ensure that the only contacts that occur between intelligence community employees and the press are those that have been approved in advance. Henceforward, the only news about intelligence is to be authorized news.

The IC policy bears some resemblance to a proposal that was advanced by the Senate Intelligence Committee in 2012, and then withdrawn in response to widespread criticism.

The Senate’s initial version of the FY2012 intelligence authorization act (Section 506) would have required that only specifically designated officials would be permitted to provide “background or off-the-record information regarding intelligence activities to the media.”

That provision would “lead to a less-informed debate on national security issues, by prohibiting nearly all intelligence agency employees from providing briefings to the press, unless those employees give their names and provide the briefing on the record,” said Sen. Ron Wyden at the time.

“I haven’t seen any evidence that prohibiting the intelligence agencies from providing these briefings would benefit national security in any way, so I see no reason to limit the flow of information in this manner,” he said then.

Likewise, there is no particular reason to think that routine interactions between intelligence agency employees and reporters — especially on unclassified matters — pose any kind of threat to national security, or that limiting them will offer any benefit. However, the new policy is likely to be effective in reducing the quality, independence and critical content of intelligence-related information that is available to the press and the public.

“I think we are going to make headway over the next few weeks on media leaks,” said outgoing National Security Agency Director Gen. Keith Alexander at an event on March 4. At the time, it was unclear what he was referring to, but he might have had the March 20 Intelligence Community Directive 119 in mind.

Iran-North Korea-Syria Cooperation, and More from CRS

The executive branch today provides less unclassified information to Congress concerning proliferation of weapons mass destruction than it used to do, a new report from the Congressional Research Service observes.

“The number of unclassified reports to Congress on WMD-related issues has decreased considerably in recent years,” the report said. “Congress may wish to consider requiring additional reporting from the executive branch on WMD proliferation.” That suggestion appeared in a new CRS report entitled Iran-North Korea-Syria Ballistic Missile and Nuclear Cooperation, published April 16, 2014.

Other new and newly updated CRS reports that Congress has withheld from online public distribution include the following.

NATO: Response to the Crisis in Ukraine and Security Concerns in Central and Eastern Europe, April 16, 2014

Obstruction of Justice: an Overview of Some of the Federal Statutes that Prohibit Interference with Judicial, Executive, or Legislative Activities, April 17, 2014

Same-Sex Marriage: A Legal Background After United States v. Windsor, April 17, 2014

Executive Orders: Issuance, Modification, and Revocation, April 16, 2014

Returning to Full Employment: What Do the Indicators Tell Us?, April 15, 2014

Chemical Facility Security: Issues and Options for the 113th Congress, April 16, 2014

Social Media in the House of Representatives: Frequently Asked Questions, April 16, 2014

Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, April 18, 2014

 

History of 1953 CIA Covert Action in Iran to be Published

In 1989, the Department of State published a notorious volume that purported to document U.S. foreign policy towards Iran in the early Eisenhower Administration. The volume triggered an avalanche of criticism because it omitted any mention of the CIA’s role in a 1953 covert action that helped overthrow the government of Iran.

Later this year, after the passage of more than two decades, the State Department will rectify that error by publishing a supplemental volume of declassified documents in its Foreign Relations of the United States (FRUS) series that is expected to fill in the missing pieces of the documentary record of the 1953 coup against the Mossadeq government of Iran.

The publication of the 1989 Iran volume was a milestone in the history of U.S. government secrecy that prompted widespread outrage and ridicule, but it also inspired remedial efforts that had some lasting impact.

The episode was recounted in detail in an impressive history of the FRUS series that was also published by the State Department last year (Chapter 10).

“FRUS historians could have been more assertive in their efforts to promote greater openness in the 1980s,” the FRUS history candidly observed. “They should have recognized that the Iran volume was too incomplete to be published without damaging the series’s reputation, consulted with stakeholders across the government and the academic community, and devised alternatives to releasing an unacceptable volume.”

Ironically, the defects in the official Iran history generated more broad public attention to questions of diplomatic history than the subject had received for many years.

“The ostensibly authoritative” FRUS volume on Iran “is ‘Hamlet’ without the Prince of Denmark — or the ghost,” the New York Times editorialized in 1990.

“We are poisoning the wells of our historical memory,” wrote Senator Daniel P. Moynihan in the New York Review of Books at the time. “The secrecy system has gone loony.”

On the plus side, the scandal over the Iran history galvanized efforts by historians and others to demand a higher standard of fidelity in official history. Those efforts led directly to the enactment of a 1991 statute dictating that the Foreign Relations of the United States series shall provide “a thorough, accurate, and reliable documentary record of major United States foreign policy decisions and significant United States diplomatic activity.”

The forthcoming publication of the FRUS retrospective volume on Iran was noted in a new annual report from the State Department Advisory Committee on Historical Diplomatic Documentation.

It was confirmed by Historian of the State Department, Dr. Stephen Randolph, who told Secrecy News that the volume was expected to be released this summer, barring unforeseen events, along with another long-deferred collection on Chile, 1969-1973.

An initial selection of recently declassified CIA records on the 1953 coup with related background material was posted last year by the National Security Archive.

“The issue is more than academic,” wrote the Archive’s Malcolm Byrne. “Political partisans on all sides, including the Iranian government, regularly invoke the coup to argue whether Iran or foreign powers are primarily responsible for the country’s historical trajectory, whether the United States can be trusted to respect Iran’s sovereignty, or whether Washington needs to apologize for its prior interference before better relations can occur.”

 

U.S. Prisons Are Bursting at the Seams, and More From CRS

The U.S. federal prison population has been growing steadily for decades, and it now exceeds the capacity of the prison system to properly house and maintain it, according to an updated report from the Congressional Research Service on the Bureau of Prisons [BOP].

“The number of inmates under the BOP’s jurisdiction has increased nearly eight-fold (790%) from approximately 24,600 inmates in FY1980 to nearly 219,300 inmates in FY2013. Since FY1980, the federal prison population has increased, on average, by approximately 5,900 inmates each year,” the report said. “The annual growth in the federal prison population has outstripped the BOP’s prison capacity, resulting in overcrowding in the federal prison system.”

The CRS report identified various options for Congress to address the situation, whether by expanding prison capacity or by reducing the prison population through alternatives to incarceration. See The Bureau of Prisons (BOP): Operations and Budget, March 4, 2014.

Other new and updated CRS reports that Congress has withheld from online public access include the following.

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, April 10, 2014

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch, April 10, 2014

The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, April 11, 2014

Former Presidents: Pensions, Office Allowances, and Other Federal Benefits, April 9, 2014

Retirement Benefits for Members of Congress, March 19, 2014

Campaign Contribution Limits: Selected Questions About McCutcheon and Policy Issues for Congress, April 7, 2014

What Is the Farm Bill?, April 7, 2014

The Federal Budget: Overview and Issues for FY2015 and Beyond, April 11, 2014

U.S. Foreign Aid to Israel, April 11, 2014

Security Assistance Reform: “Section 1206″ Background and Issues for Congress, April 4, 2014

Implementation of Chemical Facility Anti-Terrorism Standards (CFATS): Issues for Congress, April 2, 2014

Brazil: Political and Economic Situation and U.S. Relations, March 27, 2014

Bee Health: Background and Issues for Congress, April 9, 2014

The Distribution of Household Income and the Middle Class, March 10, 2014

 

Countering CIA’s Conflict of Interest in Declassification

Last week the Senate Intelligence Committee voted to submit the 480-page executive summary, findings and conclusions of its five-year investigation into the post-9/11 CIA Detention and Interrogation Program for declassification review. But in an obvious conflict of interest, the review is expected to be performed by the CIA itself.

“The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen,” said Sen. Dianne Feinstein, the chair the Senate Intelligence Committee, in an April 3 statement. “This is not what Americans do.”

The standard process for declassification therefore puts the CIA in the awkward and untenable position of deciding whether to enable (or to prevent) the release of information that portrays the Agency itself, or some of its personnel, as having engaged in behavior that was brutal, lawless, and unaccountable.

Instead, it is the White House, not the CIA, that should lead the declassification process, said Sen. Feinstein, as reported today by McClatchy Newspapers.

“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” Sen. Feinstein wrote. (Feinstein: CIA should not lead declassification review of report about interrogation tactics by Ali Watkins, McClatchy, April 8).

However, it may not be possible to exclude CIA from the declassification process altogether, since it was CIA that generated and classified most or all of the information at issue. While the President certainly has the authority to declassify the report, the White House would be unlikely to possess the detailed knowledge of the underlying records that would be needed to do so independently.

But there are ways to minimize and counteract CIA’s conflict of interest in declassification.

First of all, the Senate Intelligence Committee will be in a position to make its own judgment as to the validity of any CIA redactions of the report. Unlike the typical FOIA requester who pursues a document he has never seen, the Senate Committee knows exactly what is in the report, which it produced. If CIA moves to withhold information in ways that are frivolous, questionable or unfounded in genuine national security concerns, the Committee will recognize that immediately and will be able to elevate those specific disagreements with the CIA to the White House for resolution.

Another possible option would be for the Senate Committee to engage the services of the Public Interest Declassification Board (PIDB).

That Board’s statutory purpose is, among other things, “To review and make recommendations to the President in a timely manner with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records.”

While the PIDB, which is made up of non-governmental personnel, cannot declassify anything on its own authority, it could serve to backstop the regular declassification process with an independent perspective, and could also provide political cover for the President to overrule an unwarranted refusal to declassify.

In 2006, members of the Senate Intelligence Committee asked the Public Interest Declassification Board to review an Administration decision to classify portions of two Committee reports on prewar intelligence on Iraq. At the time, the Board said it doubted that it could carry out the review without White House authorization.

So Senators Ron Wyden and Russ Feingold introduced legislative language to clarify that the Board is authorized to review declassification proposals — or evaluate agency refusals to declassify — at the initiative of a congressional committee of jurisdiction. Their measure was enacted into law in the FY 2010 Intelligence Authorization Act.

While this function has never yet been performed by the Board, it remains available to Congress at its discretion.

“The classification system exists to protect national security, but its outdated design and implementation often hinders that mission,” wrote PIDB chair Amb. Nancy E. Soderberg in a November 2012 letter to President Obama transmitting a Board report.

“The system is compromised by over-classification and, not coincidentally, by increasing instances of unauthorized disclosures. This undermines the credibility of the classification system, blurs the focus on what truly requires protection, and fails to serve the public interest. Notwithstanding the best efforts of information security professionals, the current system is outmoded and unsustainable; transformation is not simply advisable but imperative,” she wrote.