Posts from November, 2006

Reviving Congressional Oversight

“I believe that the first order of business when we reorganize after the first of the year is congressional oversight,” said Senate Democratic Leader Sen. Harry Reid (D-NV) on November 10 after it became clear that Democrats would control the Senate and House in the next Congress.

“There simply has been no oversight in recent years,” Sen. Reid said.

That of course is an exaggeration. Even on the narrow subject of government secrecy, for example, Rep. Christopher Shays (R-CT) held multiple oversight hearings over the last two years that substantially enriched the public record.

But it is nevertheless true that congressional oversight atrophied under Republican leadership and that many fateful national policy decisions escaped scrutiny or challenge. That is expected to change as Democrats take charge in January.

New members and staff may need to learn or relearn the tools and techniques of oversight.

Beginning with the basics, the Congressional Research Service explains: “Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation.”

More simply still: “Oversight is a way for Congress to check on, and check, the executive.”

A 146 page manual prepared by CRS in 2004 describes the purposes and practices of congressional oversight in detail.

See “Congressional Oversight Manual” (pdf), October 21, 2004.

See also “Congressional Oversight” (pdf), updated January 3, 2006.

Robert Gates on Openness, Oversight

As Director of Central Intelligence from 1991-1993, Robert M. Gates, the nominee to be the next Secretary of Defense, grappled with questions of government secrecy more than almost any other agency head and helped to inaugurate a decade of increasing openness in intelligence and elsewhere.

Though he said the term “CIA openness” was “an oxymoron,” Mr. Gates also expressed the view that the interests of the CIA would best be served by eliminating unnecessary restrictions on disclosure of Agency information.

He undertook several initiatives to increase openness in U.S. intelligence, some of which did not fail.

He directed the publication of unclassified and declassified articles from the CIA journal Studies in Intelligence; he began the process of declassifying records concerning major U.S. covert actions during the cold war; he signaled the CIA’s willingness to cooperate in a government-wide program of declassifying records pertaining to the assassination of President Kennedy; and he initiated a program of declassification of National Intelligence Estimates on the former Soviet Union.

“Over the years, CIA’s approach to dealing with the media and the public has been, at best, uneven,” he said in a 1992 speech. It “took place against a backdrop of overall continuing and undifferentiated secrecy…. This is going to change.”

Mr. Gates laid out his views on the subject and his new initiatives in “CIA and Openness,” a speech to the Oklahoma Press Association, on February 21, 1992.

Most of Mr. Gates’s changes in intelligence disclosure policy were incremental and did not fundamentally transform either internal or external communications. Many of the proposed changes were adopted half-heartedly or inconsistently, or later abandoned. Some were not implemented at all.

For example, at his 1991 confirmation hearing, Mr. Gates expressed support for the idea of declassifying the intelligence budget total, but he never did so.

An excellent proposal that he presented in his 1992 speech — to “publish on an annual basis an index of all documents [CIA] has declassified” — was never accomplished, though it remains a valuable and perfectly achievable objective, for CIA and other national security agencies.

Mr. Gates’ halting efforts to increase openness were explicitly motivated by bureaucratic self-interest, but they were not less effective for that reason. To the contrary, he seemed to understand what few agency heads do: that openness and responsiveness to the public can advance the interests of an agency over the long run.

Mr. Gates has also displayed an appreciation for the role of congressional oversight that may yet serve him and the nation well.

“I sat in the Situation Room in secret meetings for nearly twenty years under five Presidents, and all I can say is that some awfully crazy schemes might well have been approved had everyone present not known and expected hard questions, debate, and criticism from the Hill,” he wrote in his 1996 memoir “From the Shadows” (p. 559).

“And when, on a few occasions, Congress was kept in the dark, and such schemes did proceed, it was nearly always to the lasting regret of the Presidents involved. Working with the Congress was never easy for Presidents, but then, under the Constitution, it wasn’t supposed to be. I saw too many in the White House forget that.”

A Glimpse of Army Special Operations Forces

The role of special operations forces in the U.S. military is steadily increasing but relatively little is publicly known about the activities and performance of these specialized units.

A new U.S. Army manual (pdf) fills in some of the gaps in the public record with a description of the structure, capabilities and missions of U.S. Army Special Operations Forces (ARSOF).

The manual has not been approved for public release, but a copy was obtained by Secrecy News.

“ARSOF are specially organized, trained, and equipped military forces,” it explains. “They conduct SO [special operations] to achieve military, political, economic, or informational objectives by generally unconventional means in hostile, denied, or politically sensitive areas.”

According to the Army, special operations forces can leap tall buildings in a single bound.

“They provide to the Nation an array of deployable, agile, versatile, lethal, survivable, and sustainable formations, which are affordable and capable of rapidly reversing the conditions of human suffering and decisively resolving conflicts.”

Counterterrorism missions are a particular focus of special operations today.

“ARSOF are, and will be for the near future, continuously engaged against terrorists whose goal is the destruction of American freedoms and the American way of life,” the new manual says.

Special operations also support intelligence collection.

“ARSOF are a key enabler in the WOT [war on terror] by conducting SO, which obtain actionable intelligence…. The results of these activities may be fed directly to a commander or Country Team or may be input into the intelligence process for processing, analysis, and dissemination to military and other government agencies (OGAs).”

There is also a domestic component to Army special operations, though it is not clearly specified in the manual.

“The United States employs ARSOF capabilities at home and abroad in support of U.S. national security goals in a variety of operations.”

The manual spells out the principles of special operations warfare, including preemption, dislocation, disruption, and so forth.

“SO [special operations] are frequently clandestine or low-visibility operations, or they may be combined with overt operations. SO can be covert but require a declaration of war or a specific finding approved by the President or the SecDef,” the manual states.

(The asserted ability of the Secretary of Defense to authorize covert operations has not been explicitly claimed before, to Secrecy News’ knowledge.)

“Significant legal and policy considerations apply to many SO activities,” the manual observes.

The new Army manual is unclassified, but its distribution is formally restricted “to protect technical or operational information.”

In view of the possible sensitivity of the document, Secrecy News is only posting the preface and the first of the eight chapters from the 119 page manual.

See “Army Special Operations Forces,” U.S. Army Field Manual FM 3-05, September 20, 2006.

The Congressional Research Service noted earlier this year (pdf) that “The 2006 Quadrennial Defense Review (QDR) has called for a 15% increase in special operations forces beginning in FY 2007.”

Fired Air Marshal Defends Disclosure of Sensitive Security Info

A former Federal Air Marshal who was fired by the Transportation Security Administration last April for disclosing “sensitive security information” (SSI) to the press has filed suit against the government arguing that his disclosure was protected under the Whistleblower Protection Act.

SSI is unclassified information regarding transportation security that is protected from disclosure by statute.

“Your release of SSI to the media was unauthorized and not protected by the First Amendment of the U.S. Constitution,” a TSA official wrote (pdf) to Air Marshal Robert MacLean, notifying him of his termination.

But whistleblower advocacy groups, including the Government Accountability Project and the Project on Government Oversight, have rallied to the support of Mr. MacLean.

“The Federal Air Marshal Service is in blatant violation of the Whistleblower Protection Act, which protects the disclosure of unclassified information that an employee feels endangers public health and safety, and Robert certainly did that,” said Adam Miles, legislative director of GAP, in a Washington Times story.

See “Ex-air marshal to sue over ‘SSI’ label” by Audrey Hudson, Washington Times, October 30.

See also “Air marshal’s firing prompts whistleblower suit” by Stephen Losey, Federal Times, November 7.

A 2004 report from the Congressional Research Service on SSI is here (pdf). Recent Congressional action to limit the application of SSI was described in Secrecy News here.

Covert Action Policy May Need Updating, Says CRS

U.S. intelligence policy on covert action, including presidential authorization and congressional notification requirements, is “less than clear,” according to a new report (pdf) from the Congressional Research Service, and may need to be updated to encompass activities performed by the Department of Defense.

Covert action generally refers to CIA operations undertaken abroad against foreign targets in which U.S. sponsorship is concealed. But increasingly, some DoD special operations seem to fit the criteria for covert action.

“Senior U.S. intelligence community officials have conceded that the line separating CIA and DOD intelligence activities has blurred, making it more difficult to distinguish between the traditional secret intelligence missions carried out by each,” according to the new CRS report.

The Department of Defense contends that there is a difference between its “clandestine operations,” which do not entail any unique oversight requirements, and CIA “covert actions,” which cannot be conducted without a written presidential finding and congressional notice, mandated by a 1991 statute.

As explained by CRS, “a clandestine operation is an operation sponsored or conducted by governmental departments or agencies in such a way as to assure secrecy or concealment. Such an operation differs from a covert action in that emphasis is placed on concealment of the operation rather than on the concealment of the identity of the sponsor.”

In certain DoD special operations, however, “an activity may be both covert and clandestine.”

The CRS report presents a menu of policy questions for lawmakers to consider in evaluating whether to modify U.S. policy on covert action.

A copy of the report was obtained by Secrecy News.

See “Covert Action: Legislative Background and Possible Policy Questions,” November 2, 2006.

Army Presents Standard Classification Methodology

U.S. Army intelligence (G2) has developed a new methodology (pdf) for applying national security classification controls and for training personnel in the proper use of classification restrictions.

Failure to classify correctly has consequences, a tutorial on the new approach points out.

“Over-classification is costly, inefficient and can cause slow downs to development/operation. Under-classification can cause compromise, inadvertent disclosures and confusion.”

But getting it right is easier said than done, because it involves the conscious exercise of informed judgment.

“The descriptors used in addressing damage at the confidential (damage), secret (serious damage) or top secret (exceptionally grave damage) levels are subjective.”

The new Army methodology “provides a standardized method of making an objective decision about a subjective issue,” wrote Lt. Gen. John F. Kimmons, U.S. Army Deputy Chief of Staff for Intelligence, in a cover memorandum.

See “Standardized Methodology for Making Classification Decisions,” Office of the Army Deputy Chief of Staff, G-2, October 25, 2006.

NY Times Story Leads to Shutdown of Iraqi Document Site

The U.S. Government suspended public access to an online database of captured Iraqi documents after the New York Times presented claims from some nuclear experts that the documents included sensitive nuclear weapons design information.

The documents had already been reviewed and cleared for public release, but the experts consulted by the Times said they should not have been disclosed.

See “U.S. Web Archive Is Said to Reveal a Nuclear Primer” by William J. Broad, New York Times, November 3.

Everyone agrees that proliferation-sensitive data should be protected. The Federation of American Scientists does not publish detailed blueprints of functional nuclear weapons, for example, though such records can be found in the public domain.

But in Secrecy News’ estimation, the New York Times story failed to include an appropriate note of skepticism about the significance of the disclosures.

According to the Times, experts say that the Iraqi documents “constitute a basic guide to building an atom bomb.”

This is a trope that has surfaced repeatedly for decades, from the publication of the Smyth Report in 1946 and the Los Alamos Primer (pdf) some years later to the Progressive Case in 1979 and even the declassification of inertial confinement fusion in the 1990s, each of which supposedly compromised the secret of the Bomb.

While it is no doubt true, as former Energy Department classification official A. Bryan Siebert told the Times, that there are still nuclear weapons secrets, the basics of nuclear weapons construction have long been publicly available. And in case anyone hasn’t noticed, proliferation of actual nuclear weapons has been proceeding apace in North Korea, Iran and elsewhere, with or without captured Iraqi documents.

William Broad is the best of reporters and his stories pack a punch even when they are not on the front page of the New York Times.

But he also has a penchant for telling and retelling a sensational, counterintuitive story that the government is failing to protect sensitive national security secrets.

A January 13, 2002, front page story by Mr. Broad reported that the government was selling declassified documents describing the production of biological weapons. That story, like the one today, also referred to the documents in question as “cookbooks” for weapons of mass destruction, a cliched term that grossly exaggerates their significance and utility, in Secrecy News’ opinion.

The earlier story prompted the removal of many thousands of declassified documents from public access, which was probably prudent. But it also triggered a continuing expansion of official controls on unclassified information, culminating in a March 19, 2002, memorandum from White House chief of staff Andrew Card on “White House Guidance on Safeguarding WMD Information and Sensitive Homeland Security Documents.” One has to expect that the latest story will aggravate the problem.

The current Administration is not known for reckless disclosure of sensitive data, to put it mildly. The Times and its reporters know this. But today’s story does not account for the government’s supposed departure from its normal stinginess with information and its move towards indiscriminate revelation of precious nuclear secrets, if that’s what happened. Having been publicly scolded by the Times for this little experiment in public disclosure, officials are now even less likely to defy well-founded expectations of secrecy.

Last week, coincidentally, the Nuclear Regulatory Commission published a proposal to export some 15 kilograms of highly enriched uranium (93% U-235) to Canada, thereby perpetuating international traffic in actual bomb-grade materials.

The proposal was not reported in the New York Times.

Classified Budgets and Congressional Corruption

Rep. Jim Gibbons (R-Nevada) helped to direct millions of dollars of classified contracts to one of his major campaign contributors, according to an astonishing account in the Wall Street Journal. (“Congressman’s Favors for Friend Include Help in Secret Budget,” by John R. Wilke, Wall Street Journal, November 1, sub. req’d.).

Coming in the wake of the bribery scandal involving Rep. Randy “Duke” Cunningham (R-CA), the latest report underscores the potential for corruption in classified defense and intelligence budgeting.

Yet Congressional leaders have stubbornly resisted efforts to reduce budget secrecy.

The Las Vegas Review-Journal followed up on this aspect of the Gibbons story in a report yesterday.

See “Experts critical of secret defense budgeting system” by Aaron Sadler, Las Vegas Review-Journal, November 2.