Posts from April, 2008

A New ISOO Director, and Various Items

William J. Bosanko was formally named this week as the fourth director of the Information Security Oversight Offfice, the executive branch agency that is responsible for oversight of national security classification and declassification policy government-wide. A ten-year veteran of the ISOO staff, Mr. Bosanko shares an understanding of the ideals and the realities of classification as well as the scruple and the responsiveness that made his predecessors such remarkable public servants.

“When I am president, the era of Bush/Cheney secrecy will be over,” said Sen. Hillary Clinton in a speech to the Newspaper Association of America on April 15. “I will empower the federal government to operate from a presumption of openness, not secrecy… I will direct my administration to prevent needless classification of information that ought to be shared with the public.”

Sen. John Cornyn (R-TX) this week introduced a new bill to increase transparency in government agency expenditures, to provide online public tracking of legislative earmarks, and to require the IRS to provide taxpayers with statements of total taxes paid and projected. “This latest effort will provide taxpayers unprecedented information about how their money is spent, and how their taxes are paid. Increasing transparency in government spending is essential for accountability and fiscal responsibility.”

The CIA today published for public comment a proposed rule modifying its Freedom of Information Act procedures. “The Agency proposes to revise its FOIA regulations to more clearly reflect the current CIA organizational structure, record system configuration, and FOIA policies and practices and to eliminate ambiguous, redundant and obsolete regulatory provisions.”

War Crimes and Persian Gulf Weather

Prodded by a request from the Federation of American Scientists, the U.S. Marine Corps recently restored online public access to many of its doctrinal publications, Federal Computer Week reported on March 27.

One of those Marine Corps documents addresses war crimes (pdf), describing prohibited actions and the need to prevent them.

“While we Marines fight swiftly and aggressively, we also conduct our military operations with respect toward both the liberated people and the vanquished foe.”

“Marines do not harm enemy soldiers who surrender. Marines do not torture or kill enemy prisoners of war or detainees. Marines collect and care for the wounded, whether friend or foe.”

See “War Crimes,” Marine Corps Reference Publication 4-11.8B, 6 September 2005.

Another document is a 1990 analysis of weather patterns in the Persian Gulf (pdf).

“While some of the technical information in this manual is of use mainly to meteorologists, much of the information is invaluable to anyone who wishes to predict the consequences of changes in the season or weather on military operations.”

See “The Persian Gulf Region: A Climatological Study,” Fleet Marine Force Reference Publication 0-54, 19 October 1990.

AIPAC Defendants Say Testimony from ISOO’s Leonard is Crucial

Testimony from classification expert J. William Leonard, the former director of the Information Security Oversight Office, will “seriously undercut the government’s case” against two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with unlawful receipt and transmission of classified information, defense attorneys argued in a dramatic new pleading (pdf) urging that he be allowed to testify.

Prosecutors oppose Mr. Leonard’s testimony, saying it is precluded by his prior contacts with the prosecution.

The closely-watched AIPAC case is the first time that the government has ever used the espionage statutes to prosecute private citizens — pro-Israel lobbyists in this case — for receiving classified information to which they were not entitled and then communicating it to others.

“Mr. Leonard’s expert testimony is critical to the defense,” the defense pleading stated. “As the government’s former ‘Classification Czar,’ he has unsurpassed expertise in the issues involved in this case, and his insights into how and why the government classifies, protects, and discloses sensitive information squarely refute the prosecution’s theory of the case.”

The government has opposed Mr. Leonard’s testimony, citing a meeting he had in 2006 with prosecutors regarding the case while he was still a government employee and was being considered as a witness for the prosecution.

(“My impression from the interview was that they did not like what I had to say, especially about over-classification, and decided not to use me as an expert,” Mr. Leonard stated in an affidavit.)

For him to now testify as a defense witness, prosecutors argued, would be a violation of the Ethics in Government Act and, they insinuated, could even put him at risk of criminal prosecution.

To resolve any lingering legal uncertainty, the defense asked the court to issue an order authorizing Mr. Leonard to testify.

“Mr. Leonard has carefully examined the classified information at issue in this case,” the defense filing indicated. If and when he is permitted to appear, Mr. Leonard will testify “that information disclosed in this case could not damage national security, was not closely held, and was not demonstrably classified.”

Further, Mr. Leonard will testify “that high level government officials frequently disclose information contained in classified documents for the purpose of advancing national security interests instead of harming them,” and that “the defendants reasonably could have believed that their conduct was appropriate.”

“Given Mr. Leonard’s unsurpassed expertise, his testimony is likely to impact the outcome of the trial,” the defense said.

However, defendants need an order from the court “to ensure that Mr. Leonard can testify safely, particularly in light of the government’s shot across the bow regarding Mr. Leonard’s potential criminal liability [if he testifies for the defense].”

See the Defendants’ Reply to the Government’s Opposition to the Expert Witness Testimony of J. William Leonard, April 11, 2008.

Among the potential expert witnesses for the prosecution is William McNair, a former Information Review Officer at the Central Intelligence Agency known for his conservative approach to declassification and disclosure.

A pre-trial appeal of several district court rulings in the AIPAC case has been filed by the government, as well as a cross-appeal filed by the defense. This month’s anticipated trial was postponed and no new trial date has been set.

McCain Admits Possibility of Good “Leaks”

Some unauthorized disclosures of classified information in the press can serve a constructive purpose, Sen. John McCain allowed. And so he expressed support for a pending press “shield” law that would increase reporters’ legal protection against compulsory disclosure of their confidential sources.

“Despite concerns I have about the legislation, I have narrowly decided to support it,” he told the Associated Press Annual Meeting on April 14.

The bill, the Free Flow of Information Act, is co-sponsored by Sen. Barack Obama and has also been endorsed by Sen. Hillary Clinton. But Sen. McCain’s support is noteworthy because it places him directly at odds with the Bush Administration, which strongly opposes the measure.

Even more interesting is the way in which McCain framed the issue:

“The shield law is, frankly, a license to do harm, perhaps serious harm. But it is also a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction.”

“I know that the press that disclosed security secrets that should have remained so also revealed the disgrace of Abu Ghraib.”

In other words, according to Sen. McCain, there are bad leaks of classified information and there are good leaks of classified information. (The leaked Army investigative report on Abu Ghraib [pdf] was classified Secret).

This comparatively nuanced view of unauthorized disclosures is a significant departure from the Bush Administration’s categorical view that any disclosure of classified information is unacceptable. And it provides some common ground for considering both disclosure and voluntary non-disclosure of classified information by the press.

The text of Sen. McCain’s April 14 speech is here.

The Washington Post editorialized today in favor of the press shield bill, which is also supported by press advocacy organizations such as the Reporters Committee for Freedom of the Press. Jack Shafer in demurred.

Nieman Reports: 21st Century Muckrakers

The latest edition of Nieman Reports, the quarterly magazine of the Nieman Foundation for Journalism at Harvard, is devoted to the subject of “21st Century Muckrakers: Who Are They? How Do They Do Their Work?”

It’s a meaty and highly readable issue. I contributed a piece on “Secrecy vs. Citizenship.” Ted Gup, author of the recent book “Nation of Secrets,” has another piece on “Investigative Reporting About Secrecy.” Walter Pincus of the Washington Post wrote “Secrets and the Press,” a review of the Gup book. And there’s a lot more.

See the latest Nieman Reports, edited by Melissa Ludtke, here.

Senate Mulls Changes in Intelligence Oversight

The Senate Intelligence Committee has recommended creation of a new Senate Appropriations Subcommittee on Intelligence to prepare the annual intelligence budget.

“The [proposed] Subcommittee on Intelligence shall appropriate all funds for the National Intelligence Program (NIP) (as opposed to the current situation where appropriations for the NIP are fragmented among several subcommittees within the Appropriations Committee),” according to the March 6, 2008 proposal (pdf) sent by fourteen members of the Intelligence Committee to the Senate Majority Leader.

The proposed Subcommittee, on which members of the Intelligence Committee would be heavily represented, would increase the Committee’s influence and leverage over executive branch intelligence agencies. It would also probably imply and require continuing disclosure of the annual budget for the National Intelligence Program.

The proposal was developed in response to recommendations of the 9/11 Commission and 2007 legislation implementing those recommendations. It has already won significant bipartisan support outside of the Intelligence Committee.

“The options for additional reform contained in the SSCI’s letter represent a thoughtful response to the 9/11 Commission’s recommendations,” wrote Senators Joseph Lieberman and Susan Collins of the Senate Homeland Security and Governmental Affairs Committee on March 13 (pdf).

But the proposal is opposed by the leadership of the Senate Appropriations Committee.

“We do not understand how the creation of an Intelligence [Appropriations] Subcommittee, led by members of the Intelligence Committee, would do anything but minimize the free exchange of ideas and hamper the debate which exists in the current system,” wrote Senators Robert Byrd and Thad Cochran, the Chair and Ranking Member of the Appropriations Committee.

“We strongly believe that consolidating authority over intelligence in a smaller group of Senators is precisely the wrong way to improve the Senate’s oversight of intelligence,” they wrote in an April 5 letter (pdf) to the Senate leadership.

It may be argued that the greatest defect in Senate oversight of intelligence is not a limitation of jurisdiction or budgetary influence, but of principle and will. Overseers have failed in recent years to challenge the Administration’s implicit view that the ends justify the means, and they have acquiesced in momentous intelligence policy deviations, which now apparently include officially-sanctioned torture (though that word is not used) and extra-legal surveillance of domestic communications. Americans who are repulsed by such developments lack effective representation in the Senate oversight process.

Iraq War Casualties, and More from CRS

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Tibet: Problems, Prospects, and U.S. Policy,” April 10, 2008.

“Judicial Review of Removal Orders,” April 10, 2008.

“Avatars, Virtual Reality Technology, and the U.S. Military: Emerging Policy Issues,” April 9, 2008.

“International Violence Against Women: U.S. Response and Policy Issues,” March 31, 2008.

“Awards of Attorneys’ Fees by Federal Courts and Federal Agencies,” updated March 26, 2008.

“The Executive Office of the President: An Historical Overview,” updated March 17, 2008.

“Freedom of Speech and Press: Exceptions to the First Amendment,” updated March 17, 2008.

“United States Military Casualty Statistics: Operation Iraqi Freedom and Operation Enduring Freedom,” updated March 18, 2008.

“Iraqi Civilian Deaths Estimates,” udpated March 13, 2008.

U.S. Intelligence Agencies Rethink Classification Policy

U.S. intelligence agencies have embarked upon a process to develop a uniform classification policy and a single classification guide that could be used by the entire U.S. intelligence community, according to a newly obtained report (pdf) from the Office of the Director of National Intelligence.

The way that intelligence agencies classify information is not only frustrating to outsiders, as it is intended to be, but it has also impeded interagency cooperation and degraded agency performance.

In order to promote improved information sharing and intelligence community integration, the ODNI undertook a review of classification policies as a prelude towards establishing a new Intelligence Community Classification Guide that would replace numerous individual agency classification policy guides.

The initial ODNI review, completed in January 2008, identified fundamental defects in current intelligence classification policy.

“The definitions of ‘national security’ and what constitutes ‘intelligence’ — and thus what must be classified — are unclear,” the review team found.

“Many interpretations exist concerning what constitutes harm or the degree of harm that might result from improper disclosure of the information, often leading to inconsistent or contradictory guidelines from different agencies.”

“There appears to be no common understanding of classification levels among the classification guides reviewed by the team, nor any consistent guidance as to what constitutes ‘damage,’ ‘serious damage,’ or ‘exceptionally grave damage’ to national security… There is wide variance in application of classification levels.”

Among the recommendations presented in the initial review were that original classification authorities should specify clearly the basis for classifying information, e.g. whether the sensitivity derives from the content of the information, or the source of the information, or the method by which it is analyzed, the date or location it was acquired, etc. Current policy requires that the classifier be “able” to describe the basis for classification but not that he or she in fact do so.

A copy of the unreleased ODNI report on classification policy was obtained by Secrecy News. See “Intelligence Community Classification Guidance: Findings and Recommendations Report,” January 2008.

From Secrecy News’ perspective, the initial ODNI review falls short in two respects.

First, it assumes that consistency in classification is intrinsically desirable and should therefore be imposed by a community-wide classification guide. But consistency is at most a secondary virtue. When a classification policy is poorly justified, it is preferable for it to be inconsistently applied, as in the case of intelligence budget secrecy (see below).

Second, the review does not touch upon what is probably the single most necessary change in intelligence classification policy, namely the need to narrow the definition of intelligence sources and methods that require protection. Almost anything can serve as an intelligence source or method, including a subscription to the daily newspaper. But not every intelligence source or method requires or deserves classification or other protection from disclosure.

State Department Reveals 2009 Intelligence Budget Request

The U.S. State Department’s Bureau of Intelligence and Research (INR) is among the most highly regarded members of the U.S. Intelligence Community. Not coincidentally, it is also among the most open and accessible.

In particular, it is one of the only Intelligence Community organizations that regularly publishes its budget (pdf). (The FBI also discloses much of its intelligence spending.)

Thus, the recent 2009 State Department budget justification book projects a 2009 INR budget of $59.8 million for a staff of 313 persons.

This would be unremarkable except for the fact that INR’s budget disclosure policy deviates from the norm of U.S. intelligence classification policy, in which most budget information is automatically classified. Even some intelligence organizations that are smaller and less influential than INR insist on classifying their budgets.

For more than a decade, the Department of Energy Office of Intelligence published its detailed budget each year. But under pressure from CIA (so I was told), DOE began withholding its intelligence budget information in 2004. The last reported figure for DOE intelligence was $39.8 million in FY 2004.

If consistency in classification policy were to prevail throughout the U.S. intelligence community, as the Director of National Intelligence has recommended, then State Department intelligence might be expected to follow DOE intelligence into pointless, unnecessary secrecy.

Some Classified DoD Assets Are Too Secret to Protect

In a stark illustration of how secrecy may undermine rather than reinforce security, the Government Accountability Office found that the Department of Defense has omitted many of its most sensitive assets from critical infrastructure protection planning because they are too secret to be identified.

“DOD has not taken adequate steps to ensure that highly sensitive critical assets associated with SCI and SAPs are accounted for,” the GAO reported last week (pdf). SCI means sensitive compartmented information that is derived from intelligence sources. SAPs are special access programs.

Only critical assets that are classified at the collateral level — i.e. plain Secret or Top Secret, but not compartmented or special access — are being processed in the Defense Critical Infrastructure Program, the GAO found. But if they are classified as SCI or special access, they have been excluded.

The Defense Intelligence Agency, for example, has withheld a list of over 80 critical assets because they are SCI and the infrastructure protection program is not equipped to receive such information.

“Unless critical SCI and SAP assets are identified and prioritized, DOD will lack sufficient information to assure the availability of the department’s most critical assets,” the GAO stated.

The Pentagon concurred with the GAO’s recommendation that critical SCI and SAP assets should be incorporated in infrastructure protection.

See “Defense Critical Infrastructure: DOD’s Risk Analysis of Its Critical Infrastructure Omits Highly Sensitive Assets,” April 2, 2008.