Posts from March, 2009

Interim IG Report on Surveillance Program Released

When Congress amended the Foreign Intelligence Surveillance Act last year, it enacted a requirement that the Inspectors General of agencies that participated in the Bush Administration’s warrantless surveillance program must prepare a comprehensive review of that program, which was conducted from 2001 to 2007 outside of the FISA legal framework that normally regulates intelligence surveillance.

The final report of the Inspectors General, due in July 2009, is supposed to address “all of the facts necessary to describe the establishment, implementation, product, and use of the product of the Program,” among other things.  It “will include both unclassified and classified volumes.”

An interim report, completed last fall, has just been released.  The three-page letter report does not present any new findings, but rather lays out the scope of the ongoing review and the division of labor among five agency Inspectors General.

The subject matter of the review ranges widely from legal assessments of the Program (DoJ) to its technical operation (NSA) to communications with private-sector entities concerning the Program (ODNI) to the involvement of the Office of the Secretary of Defense (DoD) and the threat assessments supporting reauthorization of the Program (CIA).

Furthermore, “Each of the IG teams will be alert to other matters … that should be examined as part of a comprehensive review of the Program,” the interim report states.

The newly disclosed interim report was originally submitted to Congress in classified form last September.  An unclassified version of the report (which entailed the removal of one sentence) was prepared for the Senate Intelligence Committee in November.  But the unclassified report, dated November 24, 2008, was only approved for public release this week, in response to a request from Secrecy News.

Open Source Center Views PRC Media

The structure and operation of China’s growing news media sector were examined by the U.S. Intelligence Community’s Open Source Center in two previously unpublished reports.

“Sweeping social and economic changes triggered by more than two decades of reform in China have led to equally sweeping changes in China’s vast, state-controlled media environment, particularly in the quantity and diversity of media sources and the development of the Internet,” according to a 2007 OSC survey (pdf).

At the same time, however, “all pertinent information continues to be filtered through party censors to ensure that it is consistent with official policy. The party exercises especially tight control over the core mainstream media which deliver domestic and international news along with politically sensitive information.”  See “PRC Media Guide,” Open Source Center, March 21, 2007.

The state organs that supervise and regulate Chinese media were discussed recently in “PRC State Council Websites Overseeing Media,” OSC Media Aid, March 17, 2009.

Like most other OSC products, these reports have not been approved for public release.  Copies were obtained by Secrecy News.

Army Blocks Public Access to Intel Journal

The Military Intelligence Professional Bulletin (MIPB), a U.S. Army journal devoted to intelligence policy and practice, has been removed from online public access and transferred behind a password-protected Army portal.

The former MIPB website states that “The MIPB is now being hosted on the Intelligence Knowledge Network (IKN). (AKO account required).”  AKO (Army Knowledge Online) accounts can only be obtained by military and contractor personnel.

The MIPB, which is unclassified, has long been available on the world wide web and has even been sold commercially. Back issues from 1995 to 2005 are available online from the FAS website, though no longer from the Army.

In an attempt to reverse the removal of the latest MIPB issues from the public domain, the Federation of American Scientists today filed a Freedom of Information Act request (pdf) with the Army seeking release of the now-sequestered publication.

“Our intention is to restore public access to the MIPB by posting recent issues on the website of the Federation of American Scientists.  Alternatively, we request that you post them on an Army or Army-affiliated web site that is publicly accessible.”

DoE on Verifiable Dismantlement of Nuclear Warheads

In anticipation of future nuclear arms control agreements that would require the dismantlement of nuclear warheads, the Department of Energy undertook a technical study during the Clinton Administration to determine how such dismantlement could be verifiably accomplished.  The resulting report, experts say, is still the best available treatment of the subject.

A copy of the unclassified report, marked “official use only,” was obtained by Secrecy News and posted online today.

The DOE authors identified ten types of activities that could be used in a warhead dismantlement regime, involving various forms of monitoring at successive stages of the process.  One or more of the ten could be employed, depending on the degree of confidence desired.

In principle, it should be fairly straightforward to dismantle a given nuclear warhead with confidence.  However, “determining that an item to be dismantled is actually a nuclear warhead is very difficult” without compromising classified information, the report states.  The use of x-rays or radiographs to confirm that an object is in fact a warhead “would be highly intrusive and would reveal highly classified nuclear warhead design information” to foreign inspectors, potentially exposing design vulnerabilities and other sensitive information.  Such concerns might be addressed by other forms of monitoring, the report says.

The study concluded that “transparency measures for monitoring warhead dismantlement can be applied… with up to a moderate level of confidence that dismantlement has taken place if implemented at the Unclassified to [Confidential] level.”  Verification that an actual weapon has been dismantled — which is a more demanding standard than mere “transparency” — can be achieved with an appropriate exchange of classified nuclear weapons design information.

The report provides a detailed description of the dismantlement process, a summary of previous dismantlement studies (including one by the Federation of American Scientists and another by the JASONs, but not the 1960s-era Project Cloud Gap study), and other valuable information that could serve to inform and accelerate current analyses of nuclear warhead dismantlement.

See “Transparency and Verification Options: An Initial Analysis of Approaches for Monitoring Warhead Dismantlement,” prepared by the Department of Energy Office of Arms Control and Nonproliferation, May 19, 1997.

US Army on Combating Weapons of Mass Destruction

The U.S. Army’s future ability to combat weapons of mass destruction (CWMD) in the 2015-2024 timeframe is the subject of a new Army doctrinal publication (pdf).

“The thrust of current Army CWMD capabilities … is to protect against and recover from WMD attacks,” the document explains.  However, “The Army is deficient in the capabilities required to proactively detect, identify, track, and engage threat WMD networks before they can launch an attack.”  See “The U.S. Army Concept Capability Plan for Combating Weapons of Mass Destruction for the Future Modular Force 2015-2024,” TRADOC Pamphlet 525-7-19, March 25, 2009.

The Army publishes a little-known annual journal called “Combating WMD,” the third issue of which has recently appeared.  Each issue includes some noteworthy historical or doctrinal material.

CIA Updates Digital Archive, Restricts Access

The Central Intelligence Agency maintains a regularly updated electronic archive of declassified historical records that have been publicly disclosed, but it has effectively squandered the utility of digitizing these records by refusing to make them available online.

The CIA to its credit has done more than any other agency to scan declassified records into digital format and to make them word-searchable.  Millions of pages of records have been archived in the CIA Records Search Tool (CREST).  But those electronic records are maintained in a single geographical location as if they were old-fashioned paper files.

“To use CREST, a researcher must physically be present at the National Archives, College Park, Maryland,” the CIA insists, thereby negating much of the value of the electronic archive.

“Recognizing this presents an obstacle to many researchers, we have been investigating ways to improve researcher knowledge of and access to CREST documents,” the CIA said.

Thus, the CIA web site this week announced a newly updated “finding aid” that permits online word-searches of CREST documents that have been entered into the system through 2008.

But one way to improve researcher access that CIA will not “investigate” is to put the entire CREST database online so that anyone, anywhere could download these declassified, often heavily censored records.  Nor will CIA release an electronic copy of the CREST database so that others may post it.

Why not?

CIA claims that withholding the database from unrestricted release is necessary to protect (what else?) intelligence sources and methods.  The Agency evidently believes that there are latent secrets concealed in the declassified record that could somehow be extracted by a clever analyst who reviewed them in electronic form.  Further, CIA holds that protecting such ethereal secrets is more important than providing improved public access to the historical record.

It doesn’t matter if this is undemonstrated or untrue.  All that matters is that the CIA believes it, or says that it does.  But others question the logic of this policy.

“All that the new tool will do,” a classification official in another agency told Secrecy News, “is to drive their FOIA numbers up.”

In other words, researchers who find a document of interest on the CREST search engine but who cannot get to College Park, MD to physically access the CREST archive will tend to request the declassified record under FOIA instead, thereby increasing demand on the already backlogged CIA FOIA process.

So, for example, a search of the CIA CREST finding aid under “Federation of American Scientists” turns up citations to two documents, both from 1972 and both originally of “unknown” classification level:  one is a two-page newsletter that was released in full, and the other is an eight-page document that was released in part.  The exact nature of either record cannot be ascertained without a trip to the National Archives, or a FOIA request to CIA.

But “this is progress nevertheless,” according to the classification official.

In fact, the CIA CREST database suggests one of the most dramatic and effective enhancements that could be made to the declassification system:  Digitize government records as they are declassified and then make them publicly available online.

In 1995, President Clinton ordered agencies that classify information to “establish a Governmentwide database of information that has been declassified” (Executive Order 12958, section 3.8).  That never happened, and in 2003 President Bush deleted the requirement (Executive Order 13292, section 3.7).  Restoring such a requirement, and fulfilling it, would be an appealing feature of a new executive order on classification.

Courts Pay Attention to New FOIA Policy

A skeptical person might presume that the new Freedom of Information Act policy announced by Attorney General Eric Holder on March 19 declaring that agencies should “adopt a presumption in favor of disclosure” is a rhetorical posture without much practical significance.

After all, requesters who used FOIA during the Clinton era know that agencies frequently withheld information even when it would have caused no “foreseeable harm,” despite the policy of Attorney General Reno that such information should be released.  (Nor, for that matter, did agencies during the Bush Administration always withhold information every time they were legally entitled to do so, as the Ashcroft policy advised.)

But remarkably, federal courts are already considering the new Holder policy in response to plaintiff requests and are modifying the course of pending FOIA litigation as a result.

In one case, the Electronic Frontier Foundation (EFF) asked a court to stay a proceeding and to order the Office of the Director of National Intelligence and the Department of Justice to reconsider their denial of requested records by employing the new Holder guidelines.  Those agencies opposed the idea.  But in a March 23 opinion (pdf), Judge Jeffrey S. White of the Northern District of California granted the EFF motion.

Likewise, in another EFF FOIA lawsuit this week, Judge John D. Bates ordered (pdf) the Department of Justice “to evaluate whether the new FOIA guidelines affect the scope of its disclosures and claimed withholdings in this case.”

“We now have four cases in which there are similar court orders,” said David Sobel, EFF senior counsel, which are “the result of our motions to stay proceedings pending issuance of the new guidelines.”

“I think it shows that a bit of aggressiveness on the part of FOIA litigants will likely force the government to reconsider prior withholding decisions,” he said.

The final sentence of the new Holder policy (pdf) states that “This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by any party against the United States, its departments, [or] agencies.”

Whatever that sentence means, it is not stopping courts from invoking the new memorandum against the government and against the Department of Justice itself.

Various Resources

A survey of the “most wanted” government documents that should be publicly available but are not was recently conducted by OpenTheGovernment.org and the Center for Democracy and Technology.  They reported their findings in “Show Us the Data: Most Wanted Federal Documents” (pdf), March 2009.

“Where once we [the United States] were seen as the world’s leader in intellectual discourse and debate, we are now viewed as withdrawn and unconcerned with any views other than our own,” wrote Senator Richard Lugar in the introduction to a new Senate Foreign Relations Committee report that advocates renewed engagement in public diplomacy and outreach to foreign audiences.  See “U.S. Public Diplomacy — Time to Get Back in the Game” (pdf), February 13, 2009.

Unlike some other resources, scientific information in digital form “is not diminished upon use. On the contrary, digital access has a catalytic effect, multiplying the value of information through repeated use by a wide variety of users in a diversity of settings and applications.”  See “Harnessing the Power of Digital Data for Science and Society” (pdf), report to the National Science and Technology Council, January 2009.

Declass Board Tells Obama Openness is “At Risk”

In a new letter to President Obama, the Public Interest Declassification Board warned that reliable public access to government information, the very foundation of representative democracy, may be in jeopardy.

Although “our Board was heartened by your early statements and actions on openness in Government,” wrote Board acting chairman Martin Faga to the President on March 6, “we have to sound a note of alarm about how well the Government is doing in this area.”

“In fact, we have concluded that this fundamental principle of self-government” — that is, citizen access to information about Government — “is at risk and, without decisive action, the situation is likely to worsen.”

The Public Interest Declassification Board was established by Congress in 2000 to advise the president on declassification policy and practice.  Board members are appointed by the White House and Congress.

Mr. Faga, a former director of the National Reconnaissance Office, identified several structural and procedural factors that he said impede declassification, including inadequate resources, coordination and leadership, as well as poor management of digital records.  “Future historians may find that the paper records of early American history provide a more reliable historical account than the inchoate mass of digital communications of the current era.”

Although the Board’s mission focuses on declassification of historical records, the Board has also taken an interest in classification policy and has called for a revision to the executive order on classification.

“Serious attention to the classification process itself is needed to ensure that it supports declassification and to address the particularly challenging and long-standing issue of over-classification,” the Board’s letter said.

A presidential directive initiating a revision of the executive order on classification policy is believed to be imminent.

NARA Seeks New Ideas for Presidential Libraries

The National Archives and Records Administration is soliciting public input on new ways to reduce the costs of Presidential libraries while improving public access to the records they hold.

“NARA seeks the comments and suggestions of interested organizations and individuals for cost effective ways of modifying the present system for archiving and providing public access to Presidential records,” Acting Archivist Adrienne C. Thomas wrote in a March 24 notice.

Meanwhile, the chairman of the House Oversight Committee is seeking an update on the status of White House email, including the installation of improved information technology systems to ensure the preservation and retention of Presidential email.

“What policies and procedures are in place to ensure that official e-mails subject to the Presidential Records Act are captured and preserved by government information technology systems?” asked Rep. Edolphus Towns in a February 27, 2009 letter (pdf) to White House Counsel Gregory Craig.