Posts from July, 2006

Two Reports Detail Halting Progress on Intel Reform

Some intriguing new details of U.S. intelligence policy were disclosed in two reports on the implementation of the Intelligence Reform Act of 2004 that were issued yesterday by the House Intelligence Committee and by the Director of National Intelligence.

Beyond broad conclusions on the status of intelligence reform, each report voiced numerous passing observations of interest, both favorable and critical.

The report of the House Intelligence Committee noted the following, for example:

“Many of the major acquisition programs at the National Reconnaissance Office, the National Security Agency, and the National Geospatial-Intelligence Agency have cost taxpayers billions of dollars in cost overruns and schedule delays.” (p. 14)

“The National Intelligence Council is… making more use of external experts from academia and think tanks to prepare certain parts of a National Intelligence Estimate.” (p. 16)

“The National Counterterrorism Center … advised that out of the universe of information available on terrorist targets, the National Counterterrorism Center, the CIA’s Counterterrorism Center and the Defense Intelligence Agency’s Joint Intelligence Task Force – Counterterrorism were all analyzing approximately the same ten percent.” (p. 17)

A newly established Analytic Resources Catalog provides “the names and other identifying information such as home agency and areas of expertise for all analysts in the Community.” (p. 19) The DNI report added that “The Catalog contains information on 17,000 IC analysts throughout the IC, including current assignment, professional experience, academic background, language ability, and other biographical information.” (DNI, p. 5)

“We are concerned that individuals with [key] skill sets are not being hired because they may not conform to current hiring policy and standards. Subcommittee members and staff heard startling accounts of very qualified applicants being turned away because their diverse backgrounds do not permit them to successfully complete the rigid and antiquated applicant processing model of a ‘Cold War’ era.” (p. 24)

“The Open Source Center is in the midst of a major acquisition for a large-scale internet exploitation capability…. So far this year, there has been a significant increase in open source entries that have been included in the President’s Daily Brief.” (p. 34)

The report also provided new information on developments in intelligence analysis, intelligence reform at the FBI, the production of the President’s Daily Brief, and more. See the full report of the House Permanent Select Committee on Intelligence Subcommittee on Oversight here.

The report of the Director of National Intelligence addressed many of the same topics, though without the criticism or frustration expressed in the House report, and with some additional details.

For example, the DNI has established what sounds like a knock-off of the JASON defense advisory group:

“One new ODNI-sponsored external outreach event is the Summer Hard Problem Initiative, a series of intensive summer studies that will bring together outside experts to address challenging analytic problems.” (p. 5)

And changes to national security classification policy in intelligence may be on the horizon:

“Several new ODNI classification policies are currently in the final stages of review, but more significant shifts may be required. If so, the DNI’s classification and declassification authorities may require strengthening. The ODNI is currently engaged with the NSC in examining the possibility of broader change.” (p. 8)

See the full DNI report here.

Seeking Reciprocity in Security Clearance Policy

Reciprocity in security clearances — meaning the acceptance by one agency of a security clearance granted by another agency, and vice versa — has been an elusive security policy goal for well over a decade. But lately it has become the subject of increased attention.

“The Director [of National Intelligence] has done little to ensure the reciprocal recognition of security clearances within the [Intelligence] Community,” the House Intelligence Committee complained in its new report (pdf).

“It def[ies] common sense… that it takes months to transfer clearances for an individual who will work in the exact same space but transfer from the National Geospatial-Intelligence Agency to the CIA,” the House report said.

A July 17 memo from the Office of Management and Budget addresses the problem of reciprocity in highly restricted “special access programs,” and provides a checklist of permitted exceptions to reciprocity.

The Department of Defense and Department of Energy have each issued new directives lately on reciprocal recognition of security clearances.

House Hearing on FOIA Policy

The Freedom of Information Act “continues to be a valuable tool for citizens to obtain information about the operation and decisions of the federal government,” the Government Accountability Office reported at a July 26 House hearing.

“Since 2002, agencies have received increasing numbers of requests and have also continued to increase the number of requests that they process. In addition, agencies continue to grant most requests in full. However, the rate of increase in pending requests is accelerating,” the GAO concluded in its testimony (pdf), which provided substantial new data on individual agency FOIA practices.

Critical assessments of FOIA policy were also presented by Patrice McDermott of OpenTheGovernment.org and by Tonda Rush of the Sunshine in Government Initiative. Dan Metcalfe presented the viewpoint of the Department of Justice at the hearing, which also featured Senator Patrick Leahy, Sen. John Cornyn, and Rep. Brad Sherman.

See the prepared statements from “Implementing FOIA– Does the Bush Administration’s Executive Order Improve Processing?” hearing before the Subcommittee on Government Management of the House Government Reform Committee, July 26, here.

On July 24, a federal court told the National Reconnaissance Office that it could not use the “operational files” exemption to withhold its Congressional Budget Justification Book from processing under the FOIA.

But on July 25, the National Geospatial-Intelligence Agency denied a FOIA request for a copy of its Congressional Budget Justification Book. Why? Because, NGA said, it is an “operational file” that is exempt from FOIA processing. Sigh. An appeal was filed explaining that this claim has been found unlawful.

See, relatedly, “Judge: Spy satellite budget can be FOIA-ed,” by Shaun Waterman, United Press International, July 27.

DoD Manual on Technical Intelligence

The Department of Defense has published a new manual (pdf) on the conduct of “technical intelligence” operations, or TECHINT.

Technical intelligence here refers to the collection, analysis and exploitation of captured enemy materiel and documentation. TECHINT serves to maintain U.S. technological advantage on the battlefield and helps to counter adversary weapons systems and operations.

TECHINT roles and missions are described in a new inter-service manual. A copy was obtained by Secrecy News.

See “TECHINT: Multi-Service Tactics, Techniques, and Procedures for Technical Intelligence Operations,” FM 2-22.401, 9 June 2006.

FAS Wins FOIA Lawsuit Over NRO Budget Documents

In a rare victory for public access to intelligence agency records, a federal court yesterday ordered (pdf) the National Reconnaissance Office (NRO) to process its FY 2006 budget request for release under the Freedom of Information Act.

Judge Reggie B. Walton of the D.C. District Court granted a motion filed by the Federation of American Scientists to compel the NRO to comply with the FOIA.

FAS had requested disclosure of unclassified portions of the NRO budget request. Such records have been released to FAS in the past.

But the NRO, the agency which develops U.S. intelligence satellites, rejected the request with the novel claim that the budget documents were exempt from the FOIA under the exemption for highly sensitive “operational files.”

Operational files at the NRO are those records that “document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems.” Such files are exempt from search and review under the FOIA pursuant to 50 U.S.C. 432a.

Similar operational file exemptions to the FOIA are held by other intelligence agencies including CIA, NSA, NGA, and DIA. Never before had any agency (including NRO) denied a request for budget records by claiming that they were “operational.”

If the operational file exemption were permitted to cover routine administrative documents such as budget records, then an enormous swath of unclassified government records could be unilaterally removed from the reach of the FOIA simply by designating them “operational.”

In this case, Judge Walton ruled, the exemption does not apply. He ordered the NRO to process the requested budget records under the FOIA.

“The Court …finds that the CBJB [i.e., the NRO Congressional Budget Justification Book] is not protected by [the operational files] exemption from the FOIA’s search and review requirements, and the defendant [NRO] must therefore perform these tasks and disclose those parts of the CBJB which must be released under [the FOIA],” he concluded.

See Judge Walton’s July 24 ruling in Steven Aftergood v. National Reconnaissance Office, D.C. District Case No. 05-1307.

Judge Walton’s narrowly crafted opinion did not resolve the question of whether or not the budget documents can actually be considered “operational” files.

Instead, he ruled that even if they are operational, the exemption for operational files does not apply in this case because the budget records have been disseminated outside of their original file location. Under the terms of the statute, such dissemination nullifies the exemption.

In particular, he cited the NRO’s own admission that the “CBJB was disseminated to the DNI for approval and for inclusion in the President’s budget.”

The effectiveness of Judge Walton’s ruling may be short-lived, however, if legislation now pending in the Senate version of the 2007 intelligence authorization act is enacted into law.

That Senate bill would dictate that “protected operational files provided by elements of the Intelligence Community to the Office of the DNI carry with them any exemption such files had from Freedom of Information Act (FOIA) requirements for search, review, publication, or disclosure” (Senate Report 109-259 on section 411 of S. 3237). In other words, dissemination of exempted NRO operational records to the DNI would no longer nullify the exemption, if the Senate language is adopted.

The FAS lawsuit against the NRO benefitted from a masterful amicus brief prepared by Meredith Fuchs, general counsel at the National Security Archive, and Matthew B. Archer-Beck, now of the law firm Sidley Austin, in which they discussed the legislative history of the operational files exemption and the proper limits of its application. Senator Ron Wyden (D-OR) wrote a letter attesting to the fact that the requested NRO budget records had been disseminated to Congress.

Those and other selected case files can be found here.

A prior release of unclassified NRO budget request records from FY 1998 is available here.

Evolution of the Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act, the 1978 law that is supposed to govern surveillance of foreign intelligence targets within the U.S., has had an unusually dynamic legislative history. It has been modified in a hundred ways on at least a dozen occasions, the Congressional Research Service reported (pdf) this week.

Despite the demonstrated adaptability of this statute, the Bush Administration chose to conduct its NSA Terrorist Surveillance Program outside of the legally binding FISA framework and has not sought to amend it.

“Abiding by FISA does not mean clinging to [an obsolete] 1978 structure,” emphasized Rep. Jane Harman, ranking member of the House Intelligence Committee at a hearing this week. “FISA has been modernized.”

“Each time the Administration has come to Congress and asked to modernize FISA, Congress has said ‘yes’,” she recalled.

“Congress extended the time for obtaining emergency warrants so that surveillance can begin 72 hours before the government obtains a warrant. Congress expanded the authority to conduct ‘trap and trace’ surveillance on the Internet. Congress expanded the ability to get ‘roving John Doe’ wiretaps for terrorists who switch cell phones.”

“The surveillance the President wants to do can and must be done completely under the current FISA system,” Rep. Harman concluded.

She asked the Congressional Research Service to provide a listing of prior amendments to the FISA, which turned out to be a 29 page tabulation.

See “Amendments to the Foreign Intelligence Surveillance Act (FISA), 1994-2006,” Congressional Research Service, July 19.

The prepared testimony from a July 18 House Intelligence Committee hearing on “Modernization of the Foreign Intelligence Surveillance Act” is here.

The Senate Judiciary Committee has scheduled a hearing on “FISA for the 21st Century” on July 26.

Court Denies State Secrets Claim in Wiretapping Case

In a rare judicial denial of an official “state secrets” claim, a federal court yesterday rejected (pdf) a government assertion that a lawsuit against AT&T alleging illegal wiretapping should be dismissed because it would place state secrets at risk.

In May, Director of National Intelligence John Negroponte formally asserted the state secrets privilege in support of a motion to dismiss the lawsuit brought by the Electronic Frontier Foundation.

But instead of simply deferring to the executive branch, Judge Vaughn R. Walker did his own analysis of the matter.

“The first step in determining whether a piece of information constitutes a ‘state secret’ is determining whether that information actually is a ‘secret’,” he wrote.

He went on to conclude, based on public statements by the President and other officials, that the state secrets privilege was inapplicable in this case.

“Because of the public disclosures by the government and AT&T, the court cannot conclude that merely maintaining this action creates a ‘reasonable danger’ of harming national security.”

“It is important to note that even the state secrets privilege has its limits. While the court recognizes and respects the executive’s constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it…. To defer to a blanket assertion of secrecy here would be to abdicate that duty….”

The court’s rejection of unconditional judicial deference is noteworthy. Although the executive branch’s assertion of the state secrets privilege has been denied on at least four occasions in the past, those denials seem to have been based on technical defects or procedural failings rather than a substantial judicial assessment of the merits of the claim.

Seeking Transparency in Federal Funding

A new legislative initiative (S. 2590) would require the government to disclose and to publish online all federal contracts, grants, and other forms of spending.

“I like to think of this bill as ‘Google for Government Spending’,” said Senator Tom Coburn (R-OK).

“The concept behind the bill is really quite simple: Put information on government spending out there for all to see and greater accountability will follow. It will also change the expectations of those receiving funds that they will know in advance that the information will be public,” he said.

The bill has neatly circumvented the usual partisan divisions and has won bipartisan support and co-sponsorship from the likes of Sen. Barack Obama (D-IL) and Sen. John McCain (R-AZ), and endorsements from Greenpeace and the Heritage Foundation.

A July 18 Senate hearing on the proposal featured statements from Senators Coburn, Obama and McCain, and testimony from Gary D. Bass of OMB Watch and Mark Tapscott of the Washington Examiner and the blog Tapscott’s Copy Desk. See their prepared statements here.

The Los Angeles Times editorialized on the bill in “Googling the Feds,” July 21.

DoD Doctrine on Military Deception

The role of deception in military operations is illuminated and elaborated in a new Department of Defense doctrinal publication (pdf).

Military deception refers to “those actions executed to deliberately mislead adversary decision makers as to friendly military capabilities, intentions, and operations, thereby causing the adversary to take specific actions (or inactions) that will contribute to the accomplishment of the friendly mission.”

The principles of deception and their execution are described in some detail in the 79 page publication.

Some types of deception are “perfidious” and are prohibited by the laws of war.

“Acts of perfidy include, but are not limited to: feigning surrender or waving a white flag in order to lure the enemy into a trap; misuse of protective signs, signals, and symbols in order to injure, kill, or capture the enemy;” and so on.

Even when properly executed, a deception operation or cover story “may fail for many reasons. It is possible that the target will not receive the story, not believe the story, be unable to act, be indecisive even if the story is believed, act in unforeseen ways, or may discover the deception.”

Furthermore, the document explains, one must assume that the enemy is also engaged in deception, creating the need for “counterdeception” programs, both defensive and offensive.

Offensive counterdeception “focuses on forcing an adversary to expend resources and continue deception operations that have been detected by reinforcing the perception that friendly forces are unaware of them.”

The new publication concludes with a series of maxims summarizing central lessons of experience in the field, and a suggested reading list.

See “Military Deception,” Joint Publication 3-13.4, July 13, 2006.