Posts from November, 2007

CIA Foresees Reduced Declassification, New Loopholes

The Central Intelligence Agency anticipates declining productivity in its declassification program, according to a newly disclosed declassification plan (pdf).

Between 1995 and 2006, CIA reviewed nearly 97 million pages of 25 year old documents and released 30 million pages, the Agency reported. But that level of activity is unlikely to be sustained.

“Resource constraints limit our ability to implement the detailed — and expensive — review intrinsic to a redaction strategy [in which individual words or passages are deleted from a particular page] and drive us in the direction of a document-level pass-fail system [in which an entire document is either fully released or fully withheld], which significantly reduces the number of documents that can be released.”

Nor is CIA willing to permit other government agencies to review its records for possible release, which would be one way to optimize the declassification process.

“CIA has no plans to delegate broad declassification authority to other government agencies. In fact, CIA has rescinded past arrangements under which it delegated limited declassification authority to NARA,” the CIA declassification plan noted.

In a previously unreported step that further limits disclosure, the CIA has devised a new loophole in the automatic declassification requirements of the executive order on classification policy.

In CIA’s reading, a 25 year old document is not considered “historically valuable,” and therefore subject to automatic declassification, unless and until it is no longer in use. But if the document is still in active use, the CIA says, it does not qualify as historically valuable for purposes of declassification no matter how historically significant it may be.

“Surveys of records in the D/CIA and the Directorate of Intelligence areas indicate that certain of these records, while containing pre-1982 materials, are still in use and therefore remain unretired.” Such records, CIA says, will only be subject to automatic declassification requirements “when and if [they] are retired permanently.”

“Many of CIA’s methods, techniques, and operations over 25 years old are still active,” the plan notes. “In some cases, currently inactive sources and methods may be reactivated.”

The CIA Declassification Plan was submitted to the Information Security Oversight Office in April 2006. It was approved for release in October 2007 with limited redactions in response to a request from researcher Michael Ravnitzky. A copy of the document is here.

An Intimate Look at the President’s Daily Brief (1970)

The President’s Daily Brief (PDB), a highly classified intelligence report prepared daily for the President of the United States, “is the quintessential predecisional, deliberative document,” the Central Intelligence Agency argued (pdf) recently in court, claiming that virtually nothing about it can be made public even after several decades have passed.

But a 1970 memorandum (large pdf) disclosed this week at the Nixon Library sets aside any such reticence and provides a detailed look at the preparation, evaluation and reception of the PDB.

Meredith Fuchs of the National Security Archive, who litigated a Freedom of Information Act case earlier this year seeking access to historical PDBs, expressed surprise at the new release.

“What is most amazing is that one day they say the method of producing [the PDB] is so secret that nothing about the document can be disclosed, and then not long after they release this detailed, hour by hour explanation of how it is produced,” she said.

The 1970 memorandum, written by Andrew Marshall for Henry Kissinger, describes strengths and weaknesses in the PDB process, and proposals for improvement.

But the biggest “secret” about the Daily Brief may be what Marshall described as “the widely shared suspicion that the President does not ever read the CIA PDBs.”

As for the selection process that determines what to include in the PDB, Mr. Marshall wrote in his Top Secret Codeword report, “It is derived… to a large extent, I believe, from a sense of what’s timely as judged from the New York Times, press, and wire service coverage.”

See the “Evaluation of the Process Leading to the President’s Morning Intelligence Reading Package,” memorandum for Henry A. Kissinger from A.W. Marshall, March 18, 1970 (13 MB PDF file).

Selected other declassified documents from the Nixon Library released this week are here.

Background on PDBs including previous releases and recent litigation in which an appeals court upheld the denial of two Vietnam-era Briefs is available from the National Security Archive here.

Executive Order on Asset Seizure Casts a Wide Net

Last July, President Bush issued a broadly-worded executive order authorizing the government to seize the assets of “any person” who threatens the stability of Iraq and, more controversially, any person who provides assistance to such a person.

The scope, objectives and precedents of the order — Executive Order 13,438, “Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq” — were examined in a new report (pdf) from the Congressional Research Service.

“The broad language of this executive order has been the subject of a degree of criticism as potentially reaching beyond insurgents in Iraq to third parties, such as U.S. citizens, who may unknowingly be providing support for the insurgency,” the CRS report noted, citing prior reports in the Washington Post, TPM Muckraker, and elsewhere.

In fact, the potential application of the order appears to be technically unlimited since it includes a recursive clause that has no defined endpoint.

Thus, section 1(b) of the Order states that any person who provides goods or services to a person whose actions are proscribed under section 1(a) is himself subject to section 1(a). But then, anyone who provides similar support to that person could likewise be swept up in the expansive terms of the order. And so on, without end.

In practice, the application of the order will be defined by implementing regulations to be issued by the Treasury Department’s Office of Foreign Assets Control, which will also prepare an initial list of blocked individuals and organizations. Those have still not been published.

A copy of the new CRS report was obtained by Secrecy News.

See “Executive Order 13,438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq,” November 16, 2007.

Some New DoD Intelligence Policy Directives

New issuances on Defense Department intelligence policy include the following (all pdf).

“Access to Classified Cryptographic Information,” DoD Instruction 5205.08, November 8, 2007.

“Scientific and Technical Intelligence Liaison Officer (STILO) Program and Intelligence Support for the naval Research, Development, Test & Evaluation, and Acquisition Communities,” OPNAV Instruction 3880.6A, November 5, 2007.

And for good measure there is the “NATO Glossary of Abbreviations Used in NATO Documents and Publications,” 2007. It indicates, for example, that the French for “sensitive compartmented information” is “informations sensibles cloisonnées.”

Bahamas Ratifies Nuclear Test Ban Treaty

The Commonwealth of the Bahamas announced this week that it has ratified the Comprehensive Nuclear Test Ban Treaty, according to a news release from the CTBT Organization in Vienna. The Treaty prohibits all nuclear explosions.

The ratification by the Bahamas brings the total number of Treaty ratifications to 141. But the Treaty cannot take effect until it is ratified by ten other states with nuclear programs, including China, North Korea, India, Pakistan, Israel, Iran and the United States.

For related background, see “Nuclear Weapons: Comprehensive Test Ban Treaty” (pdf) from the Congressional Research Service, updated October 29, 2007.

AIPAC Court Rules on Classification Markings, Juror Bias

Classification markings will be removed from classified documents that are admitted into evidence in the upcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC), a court ruled earlier this month. The former AIPAC officials, Steven J. Rosen and Keith Weissman, are accused of unauthorized receipt and disclosure of classified information.

“To see this onslaught of documents marked Secret, Top Secret, NOFORN — it creates an atmosphere that is just unfair,” said Judge T.S. Ellis, III at a November 8 hearing (pdf).

“I find that looking at this mass of documents, as I have, with all of these prominent inch-and-a-half stamps of Secret, Secret, creates I think unfair prejudice [and] likelihood of confusion with the jury.”

A legal issue arises because such classification markings “have both [inadmissible] hearsay and [admissible] nonhearsay purposes,” he said.

The legitimate nonhearsay purpose is that the markings “show that the Government intended that this be closely held information.”

However, to the extent that the markings indicate the classifier’s “opinion as to whether disclosure of this material would be damaging to the national interest, that’s clearly hearsay” and is impermissible, particularly since the classifier is not present at trial.

After discussing the issue at length, Judge Ellis ruled that “the bold, large classified markings for any documents that are admitted will be removed.” Instead, there will be a stipulation by the parties that the documents were classified and the judge will instruct the jury to consider classification status only for the purpose of determining whether the information was closely held or not.

The November 8 hearing also considered the question of juror bias.

“There are very significant problems with selecting a jury in this case owing to the nature of the case and owing to the publicity that this case has been accorded,” Judge Ellis said, noting “that there may be an animus in prospective jurors that should not be operating. And of course, I am referring to anti-Semitism.”

He asked the parties to draft a questionnaire for use in the jury selection process.

“You don’t ask people, are you an anti-Semite and expect to get a straightforward answer. But I leave to you how that can be reasonably explored,” he said.

A related legal question that remains unresolved is whether potential jurors can be dismissed peremptorily based on their religion or ethnicity.

“In other words, can the Government strike someone [from the jury] just because his name ends in Stein or whatever, or can the defense strike somebody because his name is Mohammed,” Judge Ellis said.

The transcript of the November 8 hearing is not in the PACER system of online federal court records, but a copy was obtained by Secrecy News.

The trial, which has been repeatedly postponed, will not take place before March 2008.

Intelligence Oversight Deflected by Appropriators

Updated below

The efficacy of intelligence oversight in the Senate has been drastically undermined by procedural hurdles that enable the Defense Appropriations Subcommittee to overrule actions taken by the Senate Intelligence Committee, Senators complained earlier this month. To remedy this concern, a new bill has been introduced that would transfer budget appropriations authority to the Intelligence Committee.

This year, the Senate Intelligence Committee presented “four major oversight initiatives in its [authorization] bill,” said Sen. Christopher S. Bond (R-MO) (pdf) at a Committee hearing on November 13. But in each case, “actions by the appropriations committee were completely dissimilar.”

A Memorandum of Agreement between the Committees that was supposed to improve coordination between the authorizers and the appropriators has failed in every significant respect, he said.

In a written statement, Sen. Bond referred obliquely to several attempted actions by the Intelligence Committee that had been overridden by appropriators to the detriment of national policy.

For example, because of resistance from appropriators, “It took until recent time to end a program that, at the least, should have been terminated a few years ago. Unfortunately, all told, the loss to the taxpayers is astronomical, in the billions of dollars.” This appears to be a reference to the Future Imagery Architecture MISTY satellite program (thanks to Jeff Richelson for the correction).

See Senator Bond’s November 13 statement here.

Related statements and testimony from the SSCI hearing on intelligence oversight are here.

The proposed Senate Resolution 375 that would grant appropriation authority to the Intelligence Committee is here.

The recent decision to declassify the annual budget of the National Intelligence Program now makes it possible to remove the intelligence budget from concealment in the defense budget and to appropriate it independently, thereby strengthening oversight and accountability.

For this and other reasons, budget declassification is the most important involuntary public disclosure of intelligence information at least since declassification of the August 6, 2001 President’s Daily Brief item “Bin Laden Determined to Strike in U.S” (pdf).

But significantly, the intelligence oversight committees, which have been criticized for ineffective leadership on several controversial policy fronts, did not play a leading role in intelligence budget disclosure either.

Update and Correction: Although the intelligence budget disclosure requirement was not successfully enacted in previous Intelligence Authorization Acts, members of the Intelligence Committee did help ensure its acceptance in the bill implementing the 9/11 Commission recommendations. See this October 30 news release from Sen. Kit Bond, “Bond Praises Release of Intelligence Community’s Budget” (pdf). Senator Bond also expressed his support for declassification of top-line budget figures from past years, a task that remains to be accomplished.

Weak and Failing States, and More from CRS

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“Weak and Failing States: Evolving Security Threats and U.S. Policy,” November 15, 2007.

“Pakistan’s Nuclear Weapons: Proliferation and Security Issues,” updated November 14, 2007.

“The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11,” updated November 9, 2007.

“Judicial Security: Responsibilities and Current Issues,” updated November 13, 2007.

“Pandemic Influenza: An Analysis of State Preparedness and Response Plans,” September 24, 2007.

“The Public Health and Medical Response to Disasters: Federal Authority and Funding,” September 19, 2007.

Open Source Center Views Mafia Turmoil

Italian news reports regarding upheaval in the organization of the Sicilian mafia were synthesized and summarized in a new analysis from the Open Source Center, a component of the Office of the Director of National Intelligence.

“The recent arrest of mafia fugitive Salvatore Lo Piccolo and the April 2006 capture of Bernardo Provenzano, the Sicilian mafia’s ‘boss of bosses,’ have highlighted the succession challenge over the position of top boss within the organization.”

“Open source reporting suggests that the ensuing power struggle, following Provenzano’s arrest, led not only to increased violence in Sicily but also to likely renewed cooperation between the Sicilian mafia and the US-based Gambino family. Their growing relationship may open new possibilities for the Sicilian mafia to launder money through US institutions.”

See “Changes in Mafia Leadership Reveal New Links to US-Based La Cosa Nostra,” DNI Open Source Center, November 19, 2007.

Recent CRS Reports

Recent reports of interest from the Congressional Research Service include the following (all pdf):

U.S. Arms Sales to Pakistan, November 8, 2007.

Nuclear Weapons: The Reliable Replacement Warhead Program, updated November 8, 2007.

Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, updated November 7, 2007.

China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues, updated October 22, 2007.

The Iran Sanctions Act (ISA), updated October 12, 2007.

NATO in Afghanistan: A Test of the Transatlantic Alliance, updated October 23, 2007.

China’s Economic Conditions, updated October 11, 2007.

Ukraine: Current Issues and U.S. Policy, updated October 10, 2007.