Posts from April, 2006

ODNI Pursues Intelligence Compensation Reform

The Office of the Director of National Intelligence is attempting to revamp the compensation system for intelligence personnel to emphasize “pay for performance” rather than duration of employment.

But it is considered a delicate, even “potentially destructive” task.

“There can be no doubt that pay modernization is coming to the IC,” wrote DDNI Michael Hayden in a February memo (pdf), “and generally, I believe that is a good thing.”

“You should all receive competitive compensation based on your competence and contribution to mission, not just on longevity,” Gen. Hayden wrote.

“However, if we don’t carefully manage the introduction of these changes, we could see untenable pay disparities within the IC, potentially destructive inter-agency competition, and a negative impact on employee morale,” he wrote.

The February 6 Hayden memorandum was transmitted to senior defense officials by Under Secretary of Defense for Intelligence Stephen A. Cambone on March 13.

A copy was obtained by Secrecy News.

See “Modernizing Civilian Compensation Systems within the Intelligence Community,” memorandum for All Intelligence Community Employees.

House Poised to Grant Arrest Powers to CIA, NSA

The House version of the 2007 intelligence authorization bill would grant CIA and NSA security personnel the authority to make arrests for “any felony” committed in their presence, no matter how remote from the foreign intelligence mission it might be, the Baltimore Sun reported today.

Section 423 of H.R. 5020 “appears…to grant to CIA security personnel powers that have little to do with the primary mission of ‘executive protection,’ and potentially creates a pretext for use or abuse of these powers for the purposes of general domestic law enforcement — something no element of the CIA has ever been empowered to perform,” wrote Danielle Brian of the Project on Government Oversight in a letter to members of the House Intelligence Committee opposing the provision.

Section 432 of the bill grants similar authority to NSA security personnel.

The bill also includes measures intended to increase penalties for unauthorized disclosures of classified information.

See “Congress cracking down on U.S. leaks” by Siobhan Gorman, Baltimore Sun, April 25.

Judging Secrets: The Role of the Courts

Federal courts could, and should, play a more effective role in curtailing unnecessary government secrecy, argues Meredith Fuchs, general counsel at the National Security Archive, in a splendid new law review article.

“All too often, courts easily accept the argument that the executive needs unquestioning adherence to its judgments and that the court is not competent to assess those judgments in the realm of national security.”

“Yet judges have stemmed executive overreaching in other contexts involving national security claims. Judges have discretionary tools — such as the Vaughn Index, in camera review, and special master — available to help them do the same in the secrecy context,” she wrote.

Her article provides an updated introduction to the secrecy system, a critique of secrecy policy, and a survey of recent judicial actions.

See “Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy” by Meredith Fuchs, Administrative Law Review, Winter 2006.

Foreign Influence, Israel and the Security Clearance Process

Many people who have tangled with the security clearance system have found it bafflingly inconsistent and unpredictable. New research (pdf) on the role of foreign influence in security clearance disputes, particularly those involving Israel, finds an empirical basis for that perception.

According to official guidelines for granting security clearances for access to classified information, foreign influence or allegiance can understandably be a disqualifying factor leading to denial or revocation of clearance.

Among the security clearance disputes involving foreign influence that are presented for adjudication to the Defense Office of Hearings and Appeals (DOHA), “there appear to be an unusually large number of Israel cases,” wrote attorney Sheldon I. Cohen in a recent study.

“Since 1996, when DOHA began posting its decisions to its web site, until February 2006,… there have been 47 cases identifying Israel as the foreign country in question. These cases have resulted in 18 applicants being granted clearances and 29 being denied.”

Cohen, a specialist in security clearance law and policy, scrutinized many of these Israel-related cases to deduce the larger lessons they hold about the clearance adjudication process.

“After review of such an extensive body of case law one would expect there to be some predictability, but there is none,” he concluded.

“If DOHA would provide its policies in deciding and appealing these cases, if indeed there are such policies, applicants and their counsel would have some idea of the likelihood of obtaining a clearance more than simply a roll of the dice.”

Instead, Cohen found, “one is left with a sense of arbitrariness and unpredictability.”

See “Israel: Foreign Influence – Foreign Preference Cases, A Review of DOHA Decisions” by Sheldon I. Cohen, March 2006.

See also this broader consideration of “Foreign Influence and Foreign Preference Considerations in National Security Clearance Decisions”.

A new Department of Defense Inspector General report (pdf) found that the perennially troubled security clearance systems is still… troubled.

“All 26 DoD military and civilian requesting activities we visited experienced difficulties in effectively and efficiently processing personnel security investigation requests for military and civilian personnel.”

“As a result, requesting activities may continue to experience delays in the security clearance process, which may impact national security, completion of critical DoD missions, and support of the warfighter.”

See “DoD Personnel Security Clearance Process at Requesting Activities,” DoD Inspector General audit report, April 19, 2006 (2 MB PDF file).

A Flutter Over Air Force One Schematics

When the San Francisco Chronicle reported April 8 that information about the design and layout of the Presidential aircraft Air Force One was available on the world wide web, it generated a spasm of anxiety in some quarters.

The anxiety was magnified by a follow-on story in the Chronicle April 19, reprinted in the Pentagon Early Bird today, which observed ominously that the information “still remain[s] publicly available.”

The reporter, Paul J. Caffera, spoke to several people in and out of government who were prepared to express alarm about the disclosure. He did not quote anyone who questioned its significance or downplayed the potential threat that it might pose.

On closer examination, it appears that the Chronicle exaggerated the entire matter, and not only by mistakenly referring to the information as “classified” (an error that it corrected today).

The notion of a Secret that may lead to fatal vulnerability if exposed has mythological force and deep psychological resonance. But fear untethered by objective scrutiny is a poor guide to government information policymaking.

To begin with, the document that the Chronicle found on the web has never been classified. To the contrary, it was specifically reviewed and cleared for public release years ago.

This was no accident. As Stephen I. Schwartz observed in a cogent critique of the Chronicle story last week, the Air Force document was deliberately made public:

“It’s part of a safety manual, written so firefighters and emergency responders can quickly rescue Air Force One’s pilots and passengers if there’s an accident or mishap,” noted Schwartz, the former publisher of the Bulletin of the Atomic Scientists.

It follows that new efforts to suppress the document in response to the Chronicle story may tend to impede accident preparedness.

See Schwartz’s critique on the DefenseTech blog “Air Force One Scare: Real Security Sacrificed,” April 11.

John Pike of observed that he regularly finds “all kinds of stuff” that is genuinely sensitive, such as new details relating to Improvised Explosive Devices (IEDs) in Iraq, which his organization refrains from publishing.

But the information in the unclassified Air Force One safety manual that triggered the Chronicle story, he said, “is neither very interesting nor unique.”

World Law Bulletin

The Law Library of Congress, which maintains the world’s largest collection of legal materials, produces a monthly publication called World Law Bulletin that features the highlights of legal developments around the world, as well as occasional essays on specialized topics by some of the Library’s resident experts.

For no good reason, however, the World Law Bulletin is not released to the public. Until such time as Congress authorizes it to do so, the Library cannot make it directly available. Efforts are underway to instigate a change in disclosure policy to permit public release, but that has not happened yet.

In the meantime, Secrecy News has obtained the latest issues from December 2005 through March 2006.

Scanning the March issue (pdf) at random, one learns that “The Government of Botswana has amended the Liquor Act so that as of April 1, 2006, beer may only be sold for five hours a day.”

But a Library analyst astutely observes that “Bars and bottle shops are to open at 5 p.m. and close at 11 p.m. (which would appear to be a six-hour period for legal sales).”

See the latest issues of World Law Bulletin here.

In the News

“Security guards at the Department of Homeland Security were forced last month to sign agreements not to disclose information the agency deems sensitive — an attempt, according to several current guards, to silence them after recent high-profile revelations of security breaches at DHS.” See “Guards Say Non-Disclosure Agreements Were Used to Hide Security Flaws at DHS” by Patrick Yoest, CQ Homeland Security, April 19.

“While no one is paying much attention, the Bush administration is promoting a reading of an old and largely moribund law that could radically diminish the openness of U.S. government while criminalizing huge swaths of academic debate and journalism,” the Washington Post editorialized today on the AIPAC case. See “Dangerous Prosecution,” April 20.

The FBI’s attempt to gain access to files of the late Jack Anderson “is one of the more outrageous steps in a campaign by the Bush administration to hide information from the public,” according to the Kansas City Star. See “FBI needs to back off,” April 20.

An Army Guide to German Customs

The U.S. Army last year published a handbook (pdf) for commanders and other U.S. military personnel who are newly deployed to Germany which describes German customs, protocol and etiquette — as understood by the Army.

It includes a wide variety of interesting and peculiar details, including an introduction to German wine and beer.

“German wine categories are more complicated than German beer categories,” the Army guide says. “There are three types of wine and three colors.”

It also includes advice for how to handle delicate interpersonal situations.

For example, if two persons pledge brotherhood (“Brüderschaft”) over drinks and switch from using the formal you (“Sie”) to the informal you (“du”) and one of them later comes to regret the intimacy — what then?

“If an unhesitating ‘Sie’ is used [by one person] at the next encounter following a Brüderschaft drink, the other person should also revert to using ‘Sie’.”

See “Commanders Guide to German Society, Customs, and Protocol,” USAREUR Pamphlet 360-6, 20 September 2005.

CIA Expands Operational File Secrecy

The Central Intelligence Agency conducted a review of its “operational files” last year, as it is required to do every ten years under the CIA Information Act of 1984, to see if any such files could have their “operational” designation rescinded, making them subject to Freedom of Information Act requests.

But instead of removing any files from operational status, as contemplated by the 1984 Act, the CIA added nearly two dozen new categories of files that will now be exempt from search and review under the FOIA, according to a newly disclosed report to Congress.

Remarkably, the CIA report to Congress misstated the requirements of the 1984 law. The CIA told Congress that:

“The CIA Information Act… required that not less than once every ten years, the DCI review the operational files exemptions then in force to determine whether such exemptions could be removed from any category of exempted files or portion of those files, and whether any new categories of files should be designated as exempt.”

Only the first half of that sentence is true.

The statute that governs these reviews — 50 U.S.C. 432 — refers only to the removal of the operational file exemption based on “historical value or other public interest.” It says nothing about adding new designations.

Having misstated the law, CIA proceeded to implement its own misrepresentation.

The Agency did not remove any operational file exemptions at all. Instead, it added twenty three new file category exemptions.

The CIA has the legal authority under the 1984 CIA Information Act to create new operational file designations at any time. But that is not the purpose of the decennial reviews, which were established by Congress specifically to correct and curtail prior designations that were no longer necessary or appropriate.

In this case, the corrective mechanism designed by Congress was defeated by CIA.

The Report of the Second Decennial Review of CIA Operational File Exemptions was transmitted to Congress on June 28, 2005. It was publicly released this week in response to a Freedom of Information Act appeal from the Federation of American Scientists.

In the first decennial review in 1995, the operational file exemption was removed from four file categories and they were opened to FOIA requests. See the report of the first decennial review here.

If rigid and arbitrary secrecy were preconditions for a superior intelligence product, then advocates of greater openness would confront a dilemma. But we know that is not the case.

CIA secrecy policy as it exists today is not a sign of vigor but of decay.

In the latest sign of institutional turmoil at the Agency, the editor of the somewhat respected CIA journal Studies in Intelligence has resigned, and so has the chairman of its Editorial Board.

“The most chilling aspect is that there are newly established editorial hurdles at the journal. Merit is no longer the sole criterion governing publication,” wrote Max Holland, a sometime contributor to Studies.

He reported on the resignations in a new article in Washington Spectator, “Lessons Not Learned,” April 15.

FBI Seeks Access to Jack Anderson Files

The Federal Bureau of Investigation wants to review the files of the late muckraking journalist Jack Anderson and confiscate any documents it believes are classified before they are opened to the public.

This amazing story was first reported yesterday by the Chronicle of Higher Education (see Update below).

There has long been an unwritten agreement the government may do what it must to deter unauthorized disclosures of classified information and to punish leakers but that, once disclosed, the government does not pursue those who receive or publish the information.

Yet the Bush Administration and some on the political right seem intent on disrupting that longstanding convention through subpoenas of reporters, prosecution of recipients of leaks (as in the AIPAC case), threats of prosecution against the press for reporting classified information, and now the FBI pursuit of the Anderson files.

A series of email messages on the FBI matter from Jack Anderson’s son Kevin were posted yesterday by Don Goldberg on his blog here.

Among the abundant news reports of the story are these:

“FBI Rebuffed on Reporter’s Files” by Spencer Hsu, Washington Post, April 19.

“Late Journalist’s Family Resists FBI Request for His Documents” by Nick Timiraos, Los Angeles Times, April 19.

“Dead Journalist’s Archives Sought In U.S. Spy Case” by Eli Lake, New York Sun, April 19.

Update: Progressive Review was actually the first to report this story, on Monday April 17, here.