Posts from March, 2006

Bill to Authorize Warrantless Surveillance Introduced

Senate Republicans led by Sen. Mike DeWine yesterday introduced a bill (pdf) that would authorize warrantless intelligence surveillance for up to 45 days, after which it could be renewed upon review by the Attorney General.

The bill would require notification to Congress of various aspects of the program.

But significantly, it would impose no external constraints on domestic surveillance by the executive branch.

The bill (pdf) would also impose penalties of up to $1 million and/or 15 years in prison for unauthorized disclosure of classified information relating to such surveillance activity.

Stung by criticism that this approach could be used to punish reporters who write about illegal government surveillance, the Senators declared that the proposed penalty, an amendment to 18 U.S.C. 798, “does not apply to journalists.”

Thus, while the current 18 U.S.C. 798(a) apparently prohibits unauthorized disclosures of certain specific types of classified information by “any person”, the new proposed section 798(b) would only apply to “any covered person,” which means someone who has authorized possession of the classified information, but not a reporter or other recipient of the information.

See “DeWine, Graham, Hagel and Snowe Introduce the Terrorist Surveillance Act of 2006,” news release, March 16.

On March 13, Sen. Russ Feingold introduced a resolution to censure President Bush for what he described as a violation of the Foreign Intelligence Surveillance Act.

Some Notable Docs

Prepared testimony from a March 14 House Government Reform subcommittee hearing titled “Drowning in a Sea of Faux Secrets” that addressed overclassification, reclassification, and the use of the “sensitive but unclassified” control marking can be found here.

“Congressional Notification of Intelligence Activities, Intelligence-Related Activities, Special Access Programs, and Covert Actions Within the Department of the Navy” (large pdf) is the subject of Secretary of the Navy Instruction 5730.13A, updated February 1, 2006 (badly scanned by the Navy into a 5 MB file).

Transcript of Franklin Sentencing Hearing Online

“All persons who have authorized possession of classified information, and persons who have unauthorized possession, who come into possession in an unauthorized way of classified information, must abide by the law. They have no privilege to estimate that they can do more good with it.”

“So, that applies to academics, lawyers, journalists, professors, whatever. They are not privileged to disobey the laws, because we are a country that respects the rule of law.”

Thus spoke Judge T.S. Ellis, III, in a January 20, 2006 sentencing hearing (pdf) for former Defense Department official Lawrence A. Franklin, who was convicted of unauthorized disclosures of classified information. His remarks were first reported (in slightly truncated form) by the Jewish Telegraphic Agency.

Judge Ellis’ statement was extraordinary because it appeared to endorse the new Bush Administration theory that not only leakers but also unauthorized recipients of classified information can be prosecuted for retaining or disclosing such information to others.

This reading of the law, which has never prevailed before, could now be used against academics, lawyers, newsletter writers, newsletter readers, whatever.

It is currently being tested in the prosecution of two former employees of the American Israel Public Affairs Committee, who are accused of mishandling classified information that was provided to them by Mr. Franklin. Neither of the two AIPAC employees held a security clearance.

A copy of the transcript of the January 20 sentencing hearing (pdf) at which Judge Ellis made his surprising remarks was obtained by Secrecy News.

See, relatedly, “Suppression of witness names underlines battle in AIPAC case” by Ron Kampeas and Matthew E. Berger, Jewish Telegraphic Agency, March 15, 2006.

A Focus on “Sensitive But Unclassified” Information

The government’s use of the problematic “sensitive but unclassified” (SBU) designation to restrict access to information that does not warrant classification is coming under new scrutiny.

“Federal agencies do not use uniform definitions of SBU information or have consistent policies for safeguarding or releasing it,” a new study from the Congressional Research Service (CRS) observed.

“This lack of uniformity and consistency raises issues about how to identify SBU information, especially scientific and technical information; how to keep it from those who would use it malevolently, while allowing access for those who need to use it; and how to develop uniform nondisclosure policies and penalties.”

The 82-page CRS report presents a comprehensive treatment of this vexing subject. It surveys the origins of government SBU practices; explores “contentious issues” involving SBU; and considers recommendations to improve SBU policy.

CRS does not permit direct public access to its publications, but a copy was obtained by Secrecy News.

See “‘Sensitive But Unclassified’ Information and Other Controls: Policy and Options for Scientific and Technical Information,” dated February 15, 2006 (published March 14, 2006).

The Government Accountability Office yesterday released a report on SBU policies at the Departments of Energy and Defense to coincide with a House Government Reform Subcommittee hearing. See “Managing Sensitive Information: Departments of Energy and Defense Policies and Oversight Could Be Improved,” Report No. GAO-06-369, March 2006.

The National Security Archive conducted its own survey of SBU policies at federal agencies and released a report entitled “Pseudo-Secrets: A Freedom of Information Audit of the U.S. Government’s Policies on Sensitive Unclassified Information.”

Some More Intelligence-Related Publications

“Intelligence in the Civil War” is the topic of a new study published by the Central Intelligence Agency (PDF).

The technical challenges facing the National Geospatial-Intelligence Agency (NGA) and a research agenda to help meet those challenges were described in a new report from the National Research Council. See “Priorities for GEOINT Research at the National Geospatial-Intelligence Agency,” 2006.

In the Press

President Bush this week said that a newspaper — the Los Angeles Times — had published details of a new technology used to defend against improvised explosive devices, and that jihadists used details from that newspaper story to develop techniques for defeating the new technology. Noah Shachtman of DefenseTech.org argues that there is reason to doubt the President’s account. See “The Enemy is Me,” March 14. (There’s more here.)

“In another sign of increasing government secrecy, the Federal Aviation Administration has removed from its Web site the transcript of a heated public hearing during which pilots ridiculed no-fly zones that have surrounded Washington since 9/11,” writes Lance Gay of Scripps Howard News Service. See “FAA yanks potentially ‘sensitive’ information from Web site,” March 15.

If the New York Times could be prosecuted under the Espionage Act for having disclosed the warrantless NSA surveillance activity, as some enthusiasts have proposed, then who else might be guilty of a similar offense? That question was asked and answered by Jack Shafer in “A Gitmo for Journos: Who besides the New York Times could be prosecuted under the Espionage Act?”, Slate, March 14.

DNI Negroponte on Intelligence Information Sharing

In an effort to improve the sharing of intelligence information, the Director of National Intelligence last year authorized the use of a new marking for intelligence documents: RELIDO, or Releasable by Information Disclosure Official.

RELIDO is intended “to facilitate information sharing through streamlined, rapid release decisions by authorized disclosure officials,” DNI John D. Negroponte wrote in a June 2005 memo.

Essentially, the RELIDO marking permits authorized officials to release documents (on a need-to-know basis, of course) without consulting the originators of the documents.

This is a step forward since originator controls on the dissemination of intelligence are one of the major bottlenecks that impede intelligence information sharing.

A copy of the DNI memo, marked For Official Use Only (not RELIDO), was obtained by Secrecy News.

See “Intelligence Community Implementation of Releasable by Information Disclosure Official (RELIDO) Dissemination Marking,” DCID 8 Series Policy Memoranda 1, June 9, 2005.

No one should mistake the recent focus on intelligence information sharing for greater openness or public disclosure. To the contrary, “information sharing” has been accompanied by increased secrecy in intelligence.

In 2004, for example, the Central Intelligence Agency decided that it would no longer release unclassified intelligence directives under the Freedom of Information Act. Though such directives had previously been released, the CIA now claimed that they were exempt from FOIA as internal agency records (exemption 2) and as intelligence sources and methods information (exemption 3).

Consequently, Americans who are interested in such things are obliged to seek out alternate sources of information.

Among the directives that CIA refused to release under the FOIA is Director of Central Intelligence Directive 8/1, the last Directive issued by former DCI George Tenet, on the subject of intelligence information sharing.

That DCI directive was hailed enthusiastically but perhaps prematurely by some officials.

It “changed the sharing paradigm from ‘need to know’ as determined by the information collector to ‘share at the first point of usability’ as determined by intelligence users across our community,” wrote Maj. Gen. John F. Kimmons, commander of the U.S. Army Intelligence and Security Command, in INSCOM Journal last year.

A copy of the directive, marked For Official Use Only, was obtained by Secrecy News.

See “Intelligence Community Policy on Intelligence Information Sharing,” DCID 8/1, June 4, 2004.

Intelligence Oversight: The Road Not Taken

Democratic proposals to initiate a congressional investigation of the National Security Agency warrantless surveillance program have been repeatedly rebuffed by Republican leaders in Congress.

This month, House Committees have produced no fewer than four adverse reports on Democratic “resolutions of inquiry,” which sought executive branch records on domestic intelligence surveillance.

In the Senate, a proposal (pdf) by Sen. Jay Rockefeller (D-WV) to investigate the NSA program was voted down on party lines in the Senate Intelligence Committee on March 7.

See the adverse reports of the House Intelligence Committee, the House Armed Services Committee, and the House Judiciary Committee (two: here and here).

Some background on the use of resolutions of inquiry as an instrument of oversight can be found in “House Resolutions of Inquiry” by Louis Fisher (who is now with the Law Library of Congress), Congressional Research Service, May 12, 2003.

Sen. Russ Feingold announced yesterday that he would introduce a resolution to censure President Bush for “authorizing the illegal wiretapping program and then misleading the country about the existence and legality of the program.”

Some New Intelligence-Related Publications

“Sources and Methods of Foreign Nationals Engaged in Economic and Military Espionage” is the title of a September 15, 2005 hearing of a House Judiciary Subcommittee which has just been published.

Defense Department policy on Operations Security has been updated in a new directive. Operations Security (OPSEC) refers to the identification and reduction of tell-tale signs of military operations that could be exploited by an adversary. See “DoD Operations Security (OPSEC) Program” (pdf), DoD Directive 5205.02, March 6, 2006.

Under Secretary of Defense for Intelligence Stephen A. Cambone has reissued the National Industrial Security Program Operating Manual (NISPOM), which “provides baseline standards for the protection of classified information released or disclosed to industry.” See the updated NISPOM, DoD Manual 5220.22, February 28, 2006.