Posts from February, 2009

OSC Views French News Media, German Think Tanks

A detailed and rather opinionated assessment of French media outlets was prepared last year by the Open Source Center (OSC) of the Office of the Director of National Intelligence.

“Many of the estimated 37,000 French journalists see themselves more as intellectuals than as reporters. Instead of merely reporting events, they often try to analyze developments and influence readers with their own biases. At the same time, many political or economic journalists are educated at the same elite schools as the politicians they cover…. As a consequence, many reporters do not necessarily regard their primary role as being that of a watchdog or a counterweight to the political and economic powers in place.”

See “France — Media Guide 2008″ (pdf), Open Source Center, 16 July 2008.

Another OSC document last year provided a survey of think tanks in Germany.

“German policy research institutes influence decisionmaking of the federal and state governments, and their work is becoming more visible in the German media. Many receive government funding, and most maintain close ties with universities. German think tanks include major foreign policy institutes, peace research organizations, economic research institutes, party foundations, and non-traditional think tanks.”

See “German Think Tank Guide” (pdf), Open Source Center, 05 March 2008.

Like most other Open Source Center analyses, these reports have not been approved for public release.  Copies were obtained by Secrecy News.

AIPAC Case: New Ruling May Lead to Acquittal

A federal court this week ruled that J. William Leonard, the former director of the Information Security Oversight Office, may testify for the defense in the long-running prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with illicitly receiving and transmitting classified information that prosecutors say is protected from disclosure.

Prosecutors had sought to prevent Mr. Leonard, a preeminent expert on classification policy, from testifying for the defendants, on grounds that he had briefly discussed the case with prosecutors while he was still in government.  They even suggested that he could be liable to a year in jail himself if he did testify.  To protect himself against such pressures, Mr. Leonard (represented by attorney Mark S. Zaid) moved to challenge the subpoena in the expectation that the court would order him to testify, thereby shielding him from any potential vulnerability.  (“To Evade Penalty, Key AIPAC Witness Seeks to Quash Subpoena,” Secrecy News, September 2, 2008).  The court has now done so.

In a February 17, 2009 memorandum opinion (pdf), Judge T.S. Ellis, III affirmed the subpoena and directed Mr. Leonard to testify for the defendants.

The ruling’s consequences for the AIPAC case are likely to be momentous, because government secrecy policy has become a central focus of the proceeding and because Mr. Leonard is the strongest witness on that subject on either side.

More than almost any other litigation in memory, the AIPAC case has placed the secrecy system itself on trial.  In Freedom of Information Act lawsuits and other legal disputes, courts routinely defer to executive branch officials on matters of classification.  If an agency head says that certain information is classified, courts will almost never overturn such a determination, no matter how dubious or illogical it may appear to a third party.

But in this case, it is a jury that will decide whether or not the information in question “might potentially damage the United States or aid an enemy of the United States.”  Far from granting automatic deference on this question, Judge Ellis wrote that “the government’s classification decision is inadmissible hearsay”!

The dispute over whether or not the classified information that was obtained by defendants Steven J. Rosen and Keith Weissman qualifies for protection under the Espionage Act will be “a major battleground at trial,” Judge Ellis observed, and it will be addressed at trial “largely through the testimony of competing experts.”

While the prosecutors naturally have their own classification experts, including former CIA Information Review Officer William McNair, none of those experts have Mr. Leonard’s breadth of experience and none of them reported to the President of the United States on classification matters as he did.

Judge Ellis wrote with perhaps a hint of admiration that the defense “understandably characteriz[es] Leonard’s experience and expertise as ‘unsurpassed’.”

As noted in the new opinion, Mr. Leonard will testify for the defense on the “pervasive practice of over-classification of information,” “the practice of high level officials of disclosing classified information to unauthorized persons (e.g. journalists and lobbyists),” whether the classified information in this case qualifies for protection under the Espionage Act, and “whether… the defendants reasonably could have believed that their conduct was lawful.”

In other words, the prosecution probably just lost this case.

The new memorandum opinion has not been posted on the court web site for some reason, but a copy was obtained by Secrecy News.  Other significant AIPAC case files may be found here.

A nominal trial date has been set for April 21, 2009 but that date is likely to slip as a pre-trial appeal by the prosecution remains pending at the Court of Appeals. (Update: The trial has been rescheduled for June 2, 2009.)

OSC on Turkish Newspapers, Polish Think Tanks

The Open Source Center (OSC) of the Office of the Director of National Intelligence consistently generates a wealth of informative analytic and bibliographic products.  But for reasons that are hard to understand, such materials are generally withheld from public disclosure even when they are unclassified and not subject to copyright.

The following OSC publications (both pdf), which have not been approved for public release, were obtained by Secrecy News.

“Guide to Major Daily Turkish Newspapers,” OSC Media Aid, 7 October 2008.

“Poland — Think Tank Guide,” OSC Media Aid, 18 July 2008.

OSC Ranks the Ten Most Influential British Commentators

The Open Source Center (OSC) of the Office of the Director of National Intelligence recently ranked the individuals whom it considers to be the ten most influential political commentators in the British press and profiled them in an OSC publication (pdf).

These commentators — from the BBC, Sky News, the Guardian, and elsewhere — are “listened to and read by cabinet ministers, business leaders, and fellow journalists. Many of them have close links to senior politicians and have been responsible for breaking stories that set the political agenda,” the OSC document said.

The OSC publication, which has not been approved for public release, is marked “for official use only.”  Furthermore, its “authorized use is for national security purposes of the United States Government only.”  What the relevant U.S. Government national security purposes of such material might be was not specified.

A copy of the document was obtained by Secrecy News.  See “United Kingdom — Profiles of Influential Political Commentators,” OSC Media Aid, October 22, 2008.

Interrogation of Detainees, and More from CRS

The shifting legal framework governing the interrogation of detainees held by the U.S. Government was examined in several newly updated reports from the Congressional Research Service that have not previously been made readily available to the public (all pdf).

“Interrogation of Detainees: Requirements of the Detainee Treatment Act,” updated January 23, 2009.

“U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques,” updated January 26, 2009.

“The U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens,” updated January 21, 2009.

“The War Crimes Act: Current Issues,” updated January 22, 2009.

“Renditions: Constraints Imposed by Laws on Torture,” updated January 22, 2009.

Other Secrecy News

“Despite President Obama’s vow to open government more than ever, the Justice Department is defending Bush administration decisions to keep secret many documents about domestic wiretapping, data collection on travelers and U.S. citizens, and interrogation of suspected terrorists,” Michael J. Sniffen reported for the Associated Press.  See “Despite Obama Pledge, Justice Defends Bush Secrets,” February 16, 2009.

David Sobel of the Electronic Frontier Foundation described several actions taken by his organization to test and challenge the Obama Administration’s new disclosure policies.  See “EFF to Obama Administration: Time to Make Open Government a Reality,” February 12, 2009.

Excessive classification continues to generate intense frustration within the government and to foster suspicion and hostility on the part of allies, according to Lt. Gen. (ret.) John Sattler, the former director of strategic plans for the Joint Chiefs of Staff.  His remarks were reported in “Sattler: Less Classification, More Communication with Coalition” by Rebekah Gordon, Inside the Navy, February 16, 2009.

Corrections and an Apology to CRS

In a recent news story about the public availability of Congressional Research Service reports (“Thousands of Congressional Reports Now Available Online” by Brian Krebs, Washingtonpost.com, February 11), I was accurately quoted saying: “While 90 percent of the [CRS] reports are probably mediocre, at their best they are very good.”

I wish I had not said that 90% of CRS reports are probably mediocre.  It was disrespectful and condescending.  Besides, I have not read anywhere close to 90% of CRS reports and so I am not in a position to make such a judgment.  In other words, at least 50% of my statement was wrong.  I apologize for that.

I think my intent was to express skepticism about the utility of publishing another archive of CRS reports dating back a decade or more, as Wikileaks.org has recently done, since many of those reports address once-current policy issues that have been overtaken by events.  Such reports generally do not retain their original value over time.

I think I also meant to indicate that even when they are brand new, a large fraction of CRS reports are introductory in character.  Their purpose is primarily to organize and synthesize information that is already in the public domain, not to generate new insights or to provide original analysis or to advance a preferred policy.  But that doesn’t make them mediocre.  Sometimes it makes them especially useful.

Though I know better, I further implied that CRS itself is responsible for its policy of not permitting direct public access to its reports.  This is a tamer version of the recent Wikileaks assertion that CRS deliberately opposes public access so as to enable it to clandestinely influence Congress.  (“Free from meaningful public oversight of its work, the CRS… is able to influence Congressional outcomes, even when its reports contain errors,” according to Wikileaks. “Public oversight would reduce its ability to exercise that influence without criticism.”)  But that does not make sense, both because CRS does not advocate particular policy outcomes and because the majority of CRS reports are already in the public domain and have been available online for years.  It is Congress that prevents CRS from making its reports directly available to the public.  When Congress changes its policy, CRS will undoubtedly comply.

Perhaps the most important work that CRS performs does not find its way into the finished reports for Congress at all.  That is the day to day support that CRS analysts provide to congressional staff, some of whom are young and inexperienced, and many of whom may be overwhelmed by the complexity of the issues they face.  If Congress is ever to achieve its potential as a thoughtful, deliberative and co-equal branch of government, it will need all the help it can get, including the expert assistance of CRS.

A Forgotten Spy at GAO?

“There is no known instance in which classified information was leaked or compromised by Government Accountability Office (GAO) employees,” I wrote on February 9 (“Senate Bill Revisits GAO Oversight of Intelligence”).  But that may not be true, according to one former GAO analyst.

“Sadly, your assertion of GAO’s record of no loss or compromise of classified information is probably not correct,” the former analyst told me.  “There was a German-born staff member in the old Programs Evaluation Division in the 1970s and 1980s who turned out to have been a Stasi plant.”

“I don’t remember the gentleman’s name.  I don’t think it was ever proved beyond a reasonable doubt that he had committed espionage, but I do recall that he was allowed to quietly retire on essentially no notice.  I also recall that GAO went through a really thorough internal review thereafter to assess the damage.”

“I’m sorry I don’t remember my former colleague’s name, but I do recall that there was a great deal of handwringing on this one.”

If there was a compromise of classified information at GAO in this case, however, it was the exception that proved the rule, said the former analyst (who asked that his name be withheld).

“I will assert… that GAO was among the most cautious and careful of government agencies in which I have either worked or observed in the manner in which it handles classified information.”

“One of the most frustrating problems for Executive Branch agencies is that GAO consistently wants the original classification guidance/authorities for classified materials that end up in its possession.  This ‘auditor’s obsession’ with the ‘complete’ file unfortunately uncovers the fact that much classified material is incorrectly marked or is classified according to whim and whimsy, not a bona fide classification guide.”

“And therein lies the problem,” he said.

On February 11, a bill was introduced in the House of Representatives by Rep. Bennie Thompson and several colleagues that would “reaffirm and clarify the authority of [the GAO] to audit and evaluate the programs, activities, and financial transactions of the intelligence community.”  The new bill, HR 1008, is a companion to Senator Daniel Akaka’s Intelligence Community Audit Act, S.385, that was introduced in the Senate on February 5.

Marine Corps: Expose Yourself to Secrecy News

U.S. Marine Corps personnel who are responsible for protecting classified information should consult a variety of sources including Secrecy News in order to maintain their professional awareness, a new Marine Corps newsletter advised (pdf).

To begin with, “you should read every security-related regulation/article you can get your hands on,” including the executive order on classification, the Information Security Oversight Office implementing directive, and so forth.

Then the newsletter recommended “exposing yourself to opposing views over the proper protection of CMI [classified military information],” a category that it said includes the views of Secrecy News and the National Security Archive.

See “Security Standard,” the official newsletter of the MARFORPAC [U.S. Marine Corps Forces Pacific] Command Security Branch, January 2009, page 1.

Management Crisis Threatens “Foreign Relations” Series

A management crisis in the State Department Office of the Historian threatens the future of the official “Foreign Relations of the United States” (FRUS) series that documents the history of U.S. foreign policy, according to a newly disclosed report on the situation.

“We find that the current working atmosphere in the HO [Historian's Office] and between the HO and the HAC [Historical Advisory Committee] poses real threats to the high scholarly quality of the FRUS series and the benefits it brings,” the January 13, 2009 report to the Secretary of State said.  A copy of the report (pdf) was obtained by Secrecy News.

The report was commissioned in December by then-Secretary Condoleezza Rice following the dramatic resignation of the chairman of the State Department Historical Advisory Committee Prof. W. Roger Louis as well as escalating complaints from fellow HAC members, staff, colleagues, and others.  (See “State Dept: Crisis in the ‘Foreign Relations’ Series,” Secrecy News, December 11, 2008.)

At first glance, the new report is rather anticlimactic.  It does not even mention the name of the State Department Historian, Dr. Marc J. Susser, who has been the focus of the complaints regarding mismanagement.  It also does not explore, much less resolve, any of the specific personnel disputes that have arisen in the Office.  (“It quickly became apparent that emotions ran high and that there was a great deal of contradictory testimony,” the report says.  “Reconciling the contradictions seemed both unlikely… and unproductive.”)

But on closer inspection, the report makes at least two crucial points.  First, it confirms that the crisis is real.  Out of several dozen people who were interviewed and consulted, “only a single person suggested that there was no crisis, no problem beyond what is normal in an office.”

Second, regardless of who may be to blame, “we believe that effective management is the responsibility of the managers, not the managed….”  In other words, the Office leadership, including the Historian himself, has failed to manage the Office in an appropriate manner.

The review therefore delicately recommends “serious consideration of a reorganization” of the Office of the Historian.

The nature of such a potential reorganization was not spelled out in the new report.  Conceivably, it could imply removal of current management, or rearrangement of existing functions to place the FRUS series under new authority, or something else.  In the meantime, the search for a new General Editor of the FRUS series has been suspended pending a decision about how to proceed.  (The previous General Editor resigned abruptly last year in a sign of the growing turmoil in the Office.)

“At this point no decisions have been made as to next steps concerning the Office of the Historian,” State Department spokesman Robert A. Wood told Secrecy News on February 6.

There are several complicating factors that will impede prompt correction of the situation.  Bad management is not a firing offense in the U.S. government.  Even if the Historian has lost the confidence of a sizable fraction of his colleagues and subordinates, that does not mean he can be summarily removed.  To the contrary, he has strong civil service protections as a member of the Senior Executive Service.  By law (5 U.S.C. 3395) he “may not be involuntarily reassigned” within 120 days after the appointment of a new agency head.  Nor can the significant expertise of now-departed staff members be quickly reconstituted.  For these reasons, and because of the myriad other issues involved in restoring the vitality of the FRUS production process, no short-term resolution of the problem is in sight.

“The Historical Advisory Committee has long been concerned about two interrelated issues,” said the new HAC chairman Prof. Robert J. McMahon last week, namely “the obvious morale problems among the staff and an alarming turnover among experienced FRUS editors. Those two issues, in our judgment, will inevitably lead to a slowdown in the production of FRUS volumes and we are concerned that the series is already years away from coming even close to the legislatively-mandated 30-year deadline.”  (By statute, FRUS is supposed to present a “thorough, accurate, and reliable documentary record of major United States foreign policy decisions” not more than 30 years after the events described.)  The next scheduled meeting of the HAC is March 2-3.

I should mention that I have had some limited, negative interaction with Dr. Susser, the State Department Historian.  After I wrote something critical of FRUS and the Historian’s Office that he disapproved of, he removed me from the distribution list for hardcopy volumes of the series.  This action might have been justified as a cost-cutting measure, particularly since I am not a professional historian and Secrecy News is not a public library.  But the punitive aspect of the move was, I thought, unseemly.  (See “Secrecy News Purged from State Dept History Mailing List,” Secrecy News, June 12, 2008.)  However, I don’t consider that episode to be part of the current controversy.

It also bears mentioning on this 200th birthday of Abraham Lincoln that the venerable FRUS series dates back to the Lincoln Administration.