Posts from May, 2006

ISOO Urged to Compel Vice President to Report on Secrecy

The Information Security Oversight Office (ISOO) should exercise its authority to compel the Office of the Vice President to disclose how frequently it classifies and declassifies information, the Federation of American Scientists urged in a letter (pdf) to ISOO Director J. William Leonard.

For the third year in a row, the Office of the Vice President (OVP) has failed to disclose such data, as all executive branch entities that handle classified information are required to do for publication in the ISOO annual report to the President.

But the OVP did not simply neglect to report the data, it declared that it had no obligation to do so.

OVP spokeswoman Lea Ann McBride told the Chicago Tribune last week: “This has been thoroughly reviewed and it’s been determined that the reporting requirement does not apply to [the office of the vice president], which has both legislative and executive functions.” (“Cheney Keeps Classification Activity Secret” by Mark Silva, Chicago Tribune, May 27.)

There is no basis for this claim that the OVP is exempt from reporting.

“Nothing in the executive order excuses the OVP from reporting on classification activity in the performance of its executive duties merely because it also has separate legislative functions,” I wrote in a May 30 FAS letter to ISOO.

“Since the OVP has publicly staked out a position that openly defies the plain language of the executive order, I believe ISOO now has a responsibility to clarify the matter. Otherwise, every agency will feel free to re-interpret the order in idiosyncratic and self-serving ways.”

FAS asked ISOO either to directly compel the OVP to comply with the executive order under threat of sanction, or else to formally request a determination from the Attorney General on the applicability of the executive order to the OVP.

“I recognize that the OVP’s classification activity is quantitatively small, by comparison with other executive branch elements, and that it could easily be overlooked without much detriment to the aggregate statistical reporting by ISOO,” our letter stated.

“But by casting its non-compliance as a matter of principle, the OVP has mounted a challenge to the integrity of classification oversight and to the authority of the executive order. In my opinion, it is a challenge that should not go unanswered,” I wrote.

“You raise some valid points,” wrote ISOO Director Leonard in an initial email response on May 30. “I will pursue.”

“Deemed Exports”: Commerce Department Retreats

In a victory for academic researchers, the Department of Commerce announced the withdrawal of a controversial rulemaking notice on so-called “deemed exports” that would have imposed new restrictions on access to information and technology by foreign-born scientists.

A “deemed export” has taken place when a foreign national who is working in the United States gains access to technology or information that is export controlled.

The 2005 Commerce rulemaking notice had triggered an outpouring of anxiety in academia and among scientists who said the Commerce proposal would complicate or render impossible many common interactions with foreign-born students as well as foreign collaborators. (See “Controls on ‘Deemed Exports’ May Threaten Research,” Secrecy News, 05/02/2005).

In response to hundreds of comments received, the Commerce Department’s Bureau of Industry and Security (BIS) abandoned key features of its proposal, including a surprising provision that access restrictions should be based on an individual’s country of birth rather than on his current citizenship.

Along with withdrawal of the pending proposal, “BIS is establishing a Deemed Export Advisory Committee [that] will serve as forum to address complex questions related to an evolving deemed export control policy.”

The policy shift was described in a Federal Register notice published today.

“While the deemed export rule plays a crucial role in preventing foreign nationals from countries of concern from obtaining controlled U.S. technology, BIS also recognizes that export controls must take into account the integral and critical contribution of foreign nationals to U.S. fundamental research,” the Federal Register notice stated.

“U.S. research institutions play a vital role in advancing science and technology for future generations. Part of the vitality of the research enterprise is the contribution made by foreign national students, faculty, and visiting scientists.”

House Moves to Limit “Sensitive Security Information”

The scope of the “sensitive security information” (SSI) control category that prevents disclosure of certain kinds of transportation security-related information would be significantly curtailed by the House version of the 2007 Department of Homeland Security Appropriations Act.

The House bill would mandate automatic disclosure of SSI when it becomes three years old if it is not part of an active security plan and unless a written determination is made by the Secretary that it must be withheld.

It would also require DHS to revise its written policy on SSI to provide common representative examples of what constitutes SSI, and it would make it easier for parties in litigation to gain access to SSI. See the SSI provision in the 2007 Homeland Security Appropriations bill, which awaits final action on the House floor, here.

The White House denounced the House measure.

“The Administration strongly opposes Section 525 [the SSI provision], which would jeopardize an important program that protects Sensitive Security Information (SSI) from public release by deeming it automatically releasable in three years…,” according to a May 25 Statement of Administration Policy (pdf).

“This provision would require the Secretary to undertake an ongoing, burdensome review process to protect this secure sensitive information that would otherwise remain appropriately protected by regulation,” the White House said (at page 4).

And see, relatedly, “Homeland Security Department: FY2007 Appropriations” (pdf), Congressional Research Service, May 10, 2006.

Some Notable Declassifications

The National Security Archive announced the publication of a large collection of Henry Kissinger’s Memoranda of Conversation (memcons), a detailed and candid record of his diplomatic contacts with world leaders from 1969 to 1977, edited by the Archive’s William Burr.

An FBI account of “Bacteriological Warfare in the United States” was published by TheMemoryHole.org. It contains a description of a “previously unknown simulated BW attack on the Pentagon” [circa 1950], notes Michael Ravnitzky, who obtained the document.

The second and final installment of declassified National Security Agency records on Vietnam and the Tonkin Gulf Incident was published yesterday on the NSA web site.

Senate Bill Would Require Intelligence Budget Disclosure

(Updated below)

Public disclosure of intelligence budget data would be required under a provision of the 2007 Intelligence Authorization Act that was reported (pdf) by the Senate Intelligence Committee yesterday and disclosed today.

The total amounts authorized and appropriated for the National Intelligence Program would be publicly disclosed each year starting in 2007, the Senate bill (pdf) states.

After 2007, the bill would also require the President to disclose the aggregate amount requested each year for national intelligence.

The budget disclosure provision was proposed by Senator Ron Wyden (D-OR) and approved yesterday by the Senate Intelligence Committee on a 9-6 vote. All Democrats on the Committee supported the move, as did Republican Senators Olympia Snowe (R-Maine) and Chuck Hagel (R-Nebraska). Other Republicans, including Chairman Pat Roberts (R-KS), opposed it.

Beyond aggregate budget disclosure, the bill would also require the Director of National Intelligence to conduct a study on the advisability of disclosing the budget of each individual element of the intelligence community.

The disclosure requirement (Section 107 of S. 3237) generally corresponds to a bipartisan recommendation of the 9/11 Commission. A similar measure was approved by the Senate in October 2004, but opposed by the White House and blocked in the House.

“The public ought to know how much money the government is spending on intelligence activities and the Senate has long sought this sensible reform,” Senator Jay Rockefeller and other Democratic Senators wrote in a Statement appended to the Report.

“We believe declassifying the aggregate amount of money the nation spends on intelligence would not harm the nation’s security.”

The new Senate Intelligence Committee report on the Intelligence Authorization Act for FY 2007 includes numerous other significant and interesting provisions including: a requirement for a DNI report on treatment of detainees (section 313); a requirement for a report on alleged clandestine detention facilities (section 314); establishment of a National Space Intelligence Center (section 410); and quite a bit more.

See the Senate Intelligence Committee Report on the FY 2007 Intelligence Authorization Act, Senate Report 109-259, May 25.

The underlying bill is S. 3237.

The intelligence bill has been referred to the Senate Armed Services Committee for a ten day period.

Update: See Panel Requires Annual Disclosure of Intelligence Budget by Walter Pincus, Washington Post, May 28.

Vice President Refuses to Report Classification Activity

For the third year in a row the Office of Vice President Dick Cheney has refused to disclose data on its classification and declassification activity, in an apparent violation of an executive order issued by President Bush.

“The Office of the Vice President (OVP), the President’s Foreign Intelligence Advisory Board (PFIAB), and the Homeland Security Council (HSC) failed to report their data to ISOO this year,” the Information Security Oversight Office (ISOO) noted in its new 2005 Annual Report to the President (pdf) (at page 9, footnote 1).

The Office of the Vice President has declined to report such data since 2002. Yet it is clear that disclosure is not optional.

“Each agency that creates or handles classified information shall report annually to the Director of ISOO statistics related to its security classification program,” according to ISOO Directive 1 (at section 2001.80).

This and other ISOO directives “shall be binding upon the agencies,” President Bush wrote in Executive Order 13292 (section 5.1). And an “agency” is not only a statutorily defined executive branch agency, but also includes “any other entity within the executive branch that comes into the possession of classified information.”

Despite this straightforward language, a spokeswoman for Vice President Cheney told the Chicago Tribune in April that his Office is “not under any duty” to provide the required information.

On prior refusals by the Vice President to disclose classification and declassification data, see “Cheney exempts his own office from reporting on classified material” by Mark Silva, Chicago Tribune, April 29, 2006.

Historically, the OVP has “not reported quantitatively significant data,” according to ISOO. So the Vice President’s current defiance of the executive order does not greatly distort the overall presentation of classification activity.

But it signals an unhealthy contempt for presidential authority and undermines the integrity of classification oversight.

ISOO Reports Nine Percent Drop in Classification

The Information Security Oversight Office reported a nine percent drop in overall classification activity in its new annual report for FY 2005 (pdf).

Total classification activity (including “original” and “derivative” classification) dropped from the record high 2004 level of 15.6 million classification actions to 14.2 million, almost identical to the 2003 level.

“ISOO views the decrease reported in classification, particularly after three years of rising numbers, as a positive step,” ISOO Director William Leonard reported to the President.

Declassification increased during FY 2005 by 4 percent to 29.5 million pages.

While the data reported by ISOO each year serve as a useful benchmark, the ISOO methodology for collecting and reporting data is rudimentary and not very illuminating. For example, the annual report provides no way to assess overclassification.

During the period covered by the latest annual report, the 9/11 Commission determined that the amount of the annual intelligence budget was improperly classified and should be disclosed. But House Republicans and the White House blocked declassification (the Senate favored it) and the budget figure remained classified despite an expert bipartisan consensus in favor of disclosure.

But the reality of overclassification is not reflected in the ISOO data. There is no mechanism for determining just what fraction of classification actions are, like intelligence budget secrecy, illegitimate.

Still, the ISOO annual report provides an occasion to reflect on larger trends in classification and declassification.

“A responsible security classification system and a committed declassification program are the cornerstones of an open and efficient government that serves to protect and inform its citizens,” Mr. Leonard wrote.

The 2005 ISOO annual report also presents useful information on individual agency performance and related topics such as the Interagency Security Classification Appeals Panel, the Public Interest Declassification Board, industrial security, and more.

In an extraordinary act of public outreach, the Information Security Oversight Office will hold a free public workshop on June 30 on the use of mandatory declassification review as a tool for researchers.

ISOO is also offering interested members of the public a DVD recording of an October 2005 Symposium on classification policy that was held to mark the 10th anniversary of executive order 12958.

New FISA Court Judge Appointed

District Judge Roger Vinson of the Northern District of Florida this month became the newest member of the Foreign Intelligence Surveillance Act (FISA) Court.

Judge Vinson was named by the Chief Justice of the United States to a seven year term on the FISA Court, effective May 4. He replaces Judge Michael J. Davis, whose term on the Court expired this month.

The FISA Court, established by the Foreign Intelligence Surveillance Act of 1978, provides judicial authorization for electronic surveillance and physical searches that are conducted within the United States for foreign intelligence and counterterrorism purposes.

Judge Vinson’s appointment has not been previously reported, but it was confirmed for Secrecy News yesterday by Shelly Snook, media liaison and assistant to the chief judge of the D.C. District Court.

The current membership of the eleven-member FISA Court and of the three-member FIS Court of Review is available on the Federation of American Scientists web site here.

House Intel Committee to Hold Hearing on Leaks

The House Permanent Select Committee on Intelligence announced (pdf) that it will hold a hearing on Friday May 26 on “the Media’s Role and Responsibilities in Leaks of Classified Information.”

There is no legislation on leaks currently before the Committee, and there are no governmental witnesses testifying at the hearing.

In an invited statement for the record (pdf), I attempted to put the issue into a larger context and to illustrate the fact that some leaks serve a constructive purpose.

“I believe it is an error to focus on unauthorized disclosures as if they were an isolated phenomenon, without consideration of the corrupted state of the classification system and the difficulties faced by whistleblowers who seek to comply with official procedures,” I wrote.

“From my own perspective, it seems likely that the benefits of leaks in preserving constitutional values greatly outweigh their risks to national security.”

The suggestion by Attorney General Alberto Gonzales last weekend that the government might prosecute reporters who publish classified information was critiqued by Jacob Sullum of Reason Magazine in “When Speech Is Outlawed, Only Outlaws Speak,” May 24.

Committee chairman Rep. Pete Hoekstra has been an outspoken critic of classified leaks.

“Each year, countless unauthorized leaks cause severe damage to our intelligence activities and expose our capabilities,” he said in a speech last year.

“The fact of the matter is, some of the worst damage done to our intelligence community has come not from penetration by spies, but from unauthorized leaks by those with access to classified information.”

Canada Views Terrorist Threat to Transportation

“On 12 November 2002, Osama Binladen issued a public statement which specifically targeted Canada for the first time for its collaboration with the United States in attempting to dismantle Al Qaida,” a 2002 Canadian intelligence report (pdf) noted.

With that statement in mind, the Canadian Security Intelligence Service (CSIS) conducted classified studies on the terrorist threat to Canadian transportation systems. Two of those classified studies have now been declassified and released in redacted form.

The declassified studies were obtained under Canada’s Access to Information Act by former Canadian intelligence officer and author Stéphane Lefebvre, who provided copies to Secrecy News.

At least some of the many redactions seem silly, for example: “Surface transportation presents a [adjective deleted] degree of vulnerability to terrorist attacks,” one study begins. The missing word is probably not “low” or “negligible.”

See “International and National Terrorist Threats to Surface Transportation,” CSIS Study #2002-3/26 (redacted) (3 MB PDF).

and “The International Terrorist Threat to Maritime Transportation,” CSIS Study #2003-4/02 (redacted) (2.7 MB PDF).