Posts from January, 2008

The Law of the Sea Convention and Intelligence

The Director of National Intelligence last year affirmed the Administration’s support for ratification of the Law of the Sea Convention. But a minority in Congress expressed concern that the Convention would impede U.S. intelligence collection.

“The overwhelming opinion of Law of the Sea experts and legal advisors is that the Law of the Sea Convention simply does not regulate intelligence activities nor was it intended to…,” wrote Charles Allen, then-Assistant Director of Central Intelligence for Collection, as quoted in an August 8, 2007 letter from DNI Mike McConnell.

But “the Treaty fails to protect the significant role submarines have played, especially during the Cold War, in gathering intelligence very close to foreign shorelines,” claimed Sens. Jim DeMint (R-SC) and David Vitter (R-LA), in a dissenting view not supported by the DNI or the leadership of the Senate Intelligence Committee.

Both perspectives were aired in a Senate Foreign Relations Committee volume last month that recommended ratification of the Convention. See “Convention on the Law of the Sea” (pdf), December 19, 2007.

DoJ Attorneys Damaged Secrecy Oversight, FAS Complaint Says

Attorneys at the Justice Department Office of Legal Counsel violated the executive order on classification and damaged oversight of the secrecy system last year when they refused to process a request from the Information Security Oversight Office for an interpretation of the order, according to a complaint filed yesterday (pdf) by the Federation of American Scientists Project on Government Secrecy.

Last January, J.William Leonard, the Director of the Information Security Oversight Office (ISOO), wrote to the Attorney General seeking an opinion on the applicability of classification oversight requirements to the Office of the Vice President after that Office ceased to cooperate with ISOO oversight.

But in July, Steven G. Bradbury of the Office of Legal Counsel wrote back that the Justice Department “will not be providing an opinion addressing this question.”

By refusing to provide an opinion, Mr. Bradbury appears to have violated the President’s executive order, which requires that “the Attorney General… shall render an interpretation” of any disputed matter when requested by ISOO. A response is not optional, and yet no response was provided.

Yesterday, FAS asked the Justice Department Office of Professional Responsibility to investigate the Office of Legal Counsel’s handling of the dispute between ISOO and the Office of the Vice President (OVP).

In his July letter (pdf), Mr. Bradbury explained his failure to respond by claiming that the dispute had been resolved. But Mr. Leonard said last week that “from my point of view, the matter is not closed.”

Mr. Leonard, who retired this month, told Newsweek last week that the unresolved conflict with the Office of the Vice President was a “contributing” factor in his decision to leave government.

By refusing to process the ISOO request and to adjudicate the conflict with the OVP, as required by the executive order, the Justice Department deprived ISOO of one of its Presidentially-authorized tools for conducting oversight of the classification system.

And by yielding to the OVP’s extreme view, the Justice Department has introduced new deformities in the classification system. So, for example, the classification activities of the Vice President’s National Security Advisor are now said to be exempt from ISOO oversight even though the classification activities of the President’s National Security Advisor must be reported to ISOO.

This incoherent new policy is attributable to professional misconduct by Justice Department attorneys, the FAS complaint argues, because they were obligated to respond to the ISOO request and refused to do so.

DNI Directive Prescribes Evaluation of Employee Performance

The Director of National Intelligence has issued a new performance management policy (pdf) that will require regular evaluations of the performance of all U.S. intelligence community employees.

The new policy will include “the evaluation of IC employees on their results (in other words, ‘what’ they achieve)” as well as “the manner in which they achieved those results (in other words, ‘how’ they were accomplished).”

There will be “a clear linkage between an employee’s performance and compensation, rewards, promotion opportunities, and retention considerations. High performance will be recognized and reinforced. Substandard performance will be addressed and corrected. Employees who cannot or will not improve their performance to meet required expectations will be subject to appropriate action,” the DNI directive states.

See “Performance Management System Requirements for the Intelligence Community Civilian Workforce,” Intelligence Community Directive 651, November 28, 2007.

New FOIA Law Does Not “Restore Presumption of Openness”

Updated below

On December 31 President Bush signed into law the “Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007,” which amends the Freedom of Information Act (FOIA).

The new law makes several constructive procedural changes in the FOIA to encourage faster agency response times, to enable requesters to track the status of their requests, to expand the basis for fee waivers, and more.

One thing it does not do, however, is alter the criteria for secrecy and disclosure. Whatever records that a government agency was legally entitled to withhold before enactment of the “OPEN Government Act” can still be withheld now that the President has signed it.

Some reporters and editorial writers, perhaps enchanted by the name of the new law, mistakenly assumed that it accomplishes much more than that.

“The law … restores a presumption of a standard that orders government agencies to release information on request unless there is a finding that disclosure could do harm,” according to a January 1 Associated Press account that appeared in the Washington Post, the New York Times, USA Today, the Wall Street Journal and elsewhere.

Further, the widely-published AP account continued, “The legislation is aimed at reversing an order by former Attorney General John Ashcroft after the 9/11 attacks in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.”

But that is incorrect.

Although the original House version of the OPEN Government Act did include a provision that would have repealed the Ashcroft policy and established a “presumption of openness,” that provision was removed from the bill prior to passage.

Thus, Rep. Henry Waxman (D-CA) noted with regret on the House floor on December 18 that the final legislation “does not include a provision which I thought was a key one establishing a presumption that government records should be released to the public unless there is a good reason to keep them secret.”

From an opposing perspective, Rep. Tom Davis (R-VA) expressed his approval that “the provision repealing the so-called Ashcroft memorandum was eliminated…. The Ashcroft memorandum established that the administration would defend agency decisions to withhold records under a FOIA exemption if the decision was supported by a sound legal basis, replacing the pre-9/11 Janet Reno standard of always releasing information absent foreseeable harm.”

“I think preservation of the Ashcroft policy is the right policy to adopt in the current environment,” Rep. Davis said.

Right or not, the Ashcroft FOIA policy remains the policy of the Bush Administration even after enactment of “The OPEN Government Act.”

Update:On January 4, the Associated Press issued the following clarification:

BC-NA-GEN–US-Bush-Freedom of Information,CLARIFICATION/245
Eds: Subscribers who used BC-NA-GEN–US-Bush-Freedom of Information of Dec. 31 may wish to use the following, which explains that the bill does not explicitly reverse former Attorney General John Ashcroft’s order to lean against disclosure when uncertain about any impact on national security.
Clarification: Bush-Freedom of Information

CRAWFORD, Texas (AP) _ In a Dec. 31 story, The Associated Press reported that Freedom of Information legislation signed by President George W. Bush aims to reverse an order by former Attorney General John Ashcroft instructing agencies to lean against releasing information when there was uncertainty about how doing so would affect national security.

The story should have specified that the bill does not explicitly reverse Ashcroft’s order in the wake of 9/11. However, sponsors say the legislation’s intent is to require agencies to provide stronger justification when withholding information under the Freedom of Information Act.

The new law cites Supreme Court decisions for a “strong presumption in favor of disclosure” and states that “disclosure, not secrecy, is the dominant objective of the act.”

“No matter who is the next president, he will have to run a government that is more open than in the past,” Sen. Patrick Leahy, a Democrat from Vermont, said when the bill passed the Senate.

Under the new law, agencies now must specify national security, law enforcement or privacy exemptions in denying information, but they don’t have to provide a finding that those interests would be harmed by disclosure.

A House draft version of the bill explicitly reversed Ashcroft’s order, but that language was stripped out at the insistence of the administration and Republican lawmakers.

NSA Announces Power Upgrades Project

The National Security Agency published a notice today describing its Power Upgrades Project, which is intended to meet the Agency’s growing demand for electrical power and to replace aging electrical infrastructure.

“The proposed utility upgrades would allow for 100 percent self-contained redundancy, should off-site power sources fail,” according to the January 2 Federal Register notice.

“The demand for electricity to operate its expanding intelligence systems has left the high-tech eavesdropping agency on the verge of exceeding its power supply,” reported Siobhan Gorman in the Baltimore Sun on August 6, 2006.