Posts from February, 2009

Open Source Center Views Iraqi Elections

A recent DNI Open Source Center publication presents a guide to the Iraqi provincial elections that took place on January 31.  The report was prepared prior to the elections and does not reflect their important results, but it does provide an informative overview of the electoral process, the Iraqi provincial council structure, and the thirty-six contending coalitions, with valuable individual profiles of the numerous coalition members.

Like most OSC analyses, it has not been approved for public release, but a copy was obtained by Secrecy News.   See “Iraq: Provincial Elections Guide 2009″ (pdf), Open Source Center Report, January 21, 2009.  (For an initial assessment of the Iraqi election results by Philip Zelikow, see here.)

In a recent meeting with the Director of CIA Information Management Services, we reiterated our view that all unclassified, non-copyrighted publications of the Open Source Center (which is managed by CIA) should be made freely available to the public.

“I will convey the message,” the Director told us.

The Center for Democracy and Technology and are inviting members of the public to suggest categories of government documents that they believe should be easily available online, but are not.

Iran’s Economic Conditions, and More from CRS

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public — despite the widely-noted publication and republication of other CRS reports by this week — include the following (all pdf).

“Iran’s Economic Conditions: U.S. Policy Issues,” updated January 15, 2009.

“U.S. Foreign Aid to the Palestinians,” updated January 30, 2009.

“The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?” February 5, 2009.

“FEMA’s Disaster Declaration Process: A Primer,” January 23, 2009.

“Nuclear Waste Disposal: Alternatives to Yucca Mountain,” February 6, 2009.

Deputy AG-Nominee is “A Big Believer in Whistleblowers”

David W. Ogden, who has been nominated to be the next Deputy Attorney General, last week expressed strong support for government whistleblowers who help to expose corruption or malfeasance.

“I am a big believer in whistleblowers,” he said at his February 5 confirmation hearing before the Senate Judiciary Committee, “and in the need to make sure that people feel comfortable coming forward to make complaints.”

“I think what we need is a process that encourages whistleblowing in this administration and any other administration going forward. The business of making sure that we’re doing the right thing is an ongoing business,” Mr. Ogden said in response to a question from Sen. Sheldon Whitehouse.

He said he would work with the Attorney General “to fashion an appropriate process that encourages whistleblowers to raise issues that need to be addressed.”

Mr. Ogden also indicated a willingness to consider public disclosure of certain legal opinions of the Foreign Intelligence Surveillance Court.

Sen. Ron Wyden noted that “there are a lot of important rulings that go to the meaning of surveillance law, and I think that a lot of those kinds of judgments really could be redacted and declassified so that the country could be brought in in a more informed, a more complete way to these national-security debates.”

“I absolutely will commit to take a fresh look at this issue if I’m confirmed,” Mr. Ogden said.

FIS Court opinions that interpret surveillance law were one of several categories of “secret law” that were identified (pdf) in an April 30, 2008 Senate Judiciary Committee hearing on the subject.

Technology for Detection of Nuclear Weapons Advances

Technology for detecting nuclear weapons and materials “appears to be advancing faster than many have expected,” according to an exceptionally informative new report from the Congressional Research Service.

The 97-page report (pdf) by CRS analyst Jonathan Medalia explains the basics of nuclear detection — what is to be detected and how — and introduces nine illustrative new and emerging technologies for detecting nuclear materials.

“Systems now under development have the potential to reduce false positives (speeding the flow of commerce) and false negatives (improving security).”  Improved detection, besides enhancing security, also serves an important deterrent function, the author writes.

See “Detection of Nuclear Weapons and Materials: Science, Technologies, Observations,” November 6, 2008.

Senate Bill Revisits GAO Oversight of Intelligence

Sen. Daniel Akaka (D-HI) and several Senate colleagues last week reintroduced the “Intelligence Community Audit Act” that would strengthen the authority of the Government Accountability Office to oversee intelligence agency programs and activities.

“GAO has well-established expertise that should be leveraged to improve the performance of the Intelligence Community,” Sen. Akaka said. “In particular, GAO could provide much needed guidance to the IC related to human capital, financial management, information sharing, strategic planning, information technology, and other areas of management and administration.”

“By employing GAO’s expertise to improve IC management and operations while carefully protecting sensitive information, this bill would reinforce the Intelligence Community’s ability to meet its mission,” he said.

Until recently, intelligence agencies have been unenthusiastic or openly hostile to GAO involvement in intelligence oversight.  Last year, when the Senate Homeland Security and Governmental Affairs Committee held a hearing on the Akaka bill, not a single representative of the intelligence community agreed to testify.

But last month, the Department of Defense cautiously acknowledged that GAO auditors may be granted access to classified foreign intelligence under some circumstances (“DoD Should Not ‘Categorically’ Deny GAO Access to Intelligence,” Secrecy News, February 4).

And at the January 22, 2009 confirmation hearing of Adm. Dennis C. Blair to be Director of National Intelligence, Adm. Blair also seemed to endorse a role for GAO in intelligence oversight.

Sen. Ron Wyden asked him: “If the GAO is conducting a study at the direction of one of the intelligence committees using properly cleared staff, will you give them the access they need to do their work?”

Adm. Blair replied: “Senator, I’m aware that the direction of GAO studies and the terms of them are generally subject to talk between the two branches of government for a variety of reasons, and subject to having those discussions, ultimately I believe the GAO has a job to do and I will help them do that job.”

The congressional intelligence committees themselves have been reluctant to take advantage of the GAO for intelligence oversight, and it is not a coincidence that Sen. Akaka, the leading Senate proponent of the idea, is not a member of the Senate intelligence committee.  But in another sign of shifting perspectives, Rep. Sylvestre Reyes and Rep. Anna G. Eshoo of the House Intelligence Committee last year asked the GAO to perform its first assessment of the intelligence community security clearance process.  It was the first request to the GAO on any topic from either of the congressional intelligence committees in six years.  (“A New Intelligence Oversight Task for GAO,” Secrecy News, April 1, 2008.)

In an almost forgotten episode from 1982, a former GAO auditor alleged that Soviet spies had infiltrated the GAO.  The Senate Intelligence Committee conducted an investigation and then-Committee chairman Sen. Barry Goldwater reported to the Senate that the allegation was not substantiated.  There is no known instance in which classified information was leaked or compromised by GAO employees.

DoD Should Not “Categorically” Deny GAO Access to Intelligence

Department of Defense intelligence agencies were told last week to consider granting requests from the congressional Government Accountability Office (GAO) for access to classified foreign intelligence information.

A new DoD directive (pdf) states explicitly for the first time that GAO requests for foreign intelligence and counterintelligence information may be granted:

“Although the Comptroller General may be prevented from compelling access to this information, such information should not be denied categorically.  Such information may be furnished to GAO representatives having a legitimate need to know.  Therefore, denials of access to such information must be carefully considered and supported legitimately.”

See “Government Accountability Office (GAO) and Comptroller General Requests for Access to Records,” Department of Defense Instruction 7650.01, January 27, 2009 (at page 6).

As of last year, 1000 GAO analysts held top secrecy security clearances and 73 were cleared for intelligence information (Secrecy News, “GAO and Intelligence Oversight,” August 4, 2008).

GAO access to intelligence information has long been a subject of dispute and controversy. By law (31 U.S.C. 716d), the Comptroller General who directs the GAO cannot compel executive branch agencies to disclose intelligence information. The Central Intelligence Agency has generally refused to cooperate with GAO auditors, while defense intelligence agencies have historically been somewhat more forthcoming.

Using GAO analysts to audit intelligence agency operations potentially offers a way to augment and improve congressional oversight of intelligence, the Federation of American Scientists and others have argued (pdf).

A bill to affirm the role of GAO in intelligence oversight was introduced by Senator Daniel Akaka (D-HI) in the last Congress.

“It is my strong belief that the Intelligence Community could benefit from the Government Accountability Office’s expertise in reviewing organizational transformations and management reforms,” Sen. Akaka said at a Senate hearing on the subject last year.

House Passes “Reducing Overclassification Act”

The House of Representatives yesterday passed the Reducing Overclassification Act, a bill that would require the Department of Homeland Security to prepare unclassified versions of intelligence reports that are likely to be of use to first responders and other non-federal officials.  The legislation, introduced by Rep. Jane Harman, would also mandate improved oversight and training in order to combat overclassification at DHS.

“Though hard to believe, sheriffs and police chiefs cannot readily access the information they need to prevent or disrupt a potential terrorist [incident] because those at the Federal level resist sharing information,” Rep. Harman said. “Over-classification and pseudo-classification, which is stamping with any number of sensitive-but-unclassified markings, remain rampant.”

CIA Guide to Analysis of Insurgency, and Other Resources

A Central Intelligence Agency publication on the analysis of insurgencies that has often been cited but not widely circulated was recently released by CIA under the Freedom of Information Act.

“This pamphlet contains key definitions and analytic guides applicable to any insurgency…. Among other things, this guide is designed to assist in conducting a net assessment of the overall status or progress of a specific conflict,” the document (pdf) states.  The CIA “Guide to the Analysis of Insurgency” is undated, but may have been written in the 1980s.

U.S. military intelligence agencies should follow the lead of Federal Express and other corporations and use “operations research” tools to guide their investment decisions and resource allocations, according to a new study by the Defense Science Board.  See “Operations Research Applications for Intelligence, Surveillance and Reconnaissance” (pdf), January 2009.

The Air Force Intelligence, Surveillance and Reconnaissance Agency (AF ISR Agency) is a little-known successor of the former Air Intelligence Agency, and its mission is described in this January 27, 2009 Air Force directive (pdf).

CRS Scholar Harold Relyea Retires

Harold C. Relyea, a scholar of American government at the Congressional Research Service, retired on January 30 after 37 years of government service.

When I first started exploring government secrecy policy quite a few years ago, the writings of Harold Relyea were some of the first and some of the most informative things that I found to read.  He showed how secrecy had deep roots in American history, and he explained that national security classification functioned as a bureaucratic “system” with well-defined rules and procedures as well as characteristic problems.  It followed that the system could be confronted and challenged when necessary.

By its nature, most of Dr. Relyea’s work for Congress was invisible to the public.  Its impact, though sometimes profound, was not broadly advertised.  But he leaves a lasting imprint on the published record.

At the request of the Church Committee that investigated the U.S. intelligence community in the mid-1970s, he authored “The Evolution and Organization of the Federal Intelligence Function: A Brief Overview (1776-1975),” which appeared in Book VI of the Committee’s Final Report (and which was also published independently).

Among numerous other works of enduring value, he prepared a book-length 1974 report on “National Emergency Powers.”  A recent, abbreviated version of the same title is here (pdf).

One of his last major reports for CRS explored “Security Classified and Controlled Information” (pdf), expertly describing the management challenges posed by the parallel classified and “sensitive but unclassified” information security regimes.

Another report he wrote on “Presidential Advisers’ Testimony Before Congressional Committees” (pdf) was utilized by the 9/11 Commission to cajole testimony from reluctant Bush Administration officials.

Dr. Relyea authored several books, notably including “Silencing Science” (1994), which examined national security controls on scientific communication.  He also found time — during his off-hours, no doubt — to answer questions from interested members of the public concerning secrecy policy and related topics.

We thank him and wish him well.

Eric Holder on State Secrets, OLC Opinions

Attorney General-nominee Eric H. Holder, Jr. said that, if confirmed, he will review current litigation in which the Bush Administration has asserted the state secrets privilege and that he will seek to minimize the use of the privilege.

“I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations,” Mr. Holder wrote in response to pre-confirmation questions for the record from Sen. Russ Feingold.

He also affirmed a general commitment to open government.

“I firmly believe that transparency is a key to good government.  Openness allows the public to have faith that its government obeys the law,” Mr. Holder told Sen. Feingold.

More particularly, he said he favored maximum public disclosure of Office of Legal Counsel opinions.

“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns,” Mr. Holder wrote.

Last week, the ACLU called upon the Justice Department to release OLC opinions concerning Bush Administration policies on surveillance, detention, and interrogation.

“Releasing the memos would … signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive’s lawless conduct,” the ACLU wrote.

The news organization Pro Publica has prepared a database of pertinent OLC opinions from the Bush Administration.  See “The Missing Memos” by Dan Nguyen and Christopher Weaver, January 28.