Posts from April, 2009

Kuklinski, OTA, and Freeman

“The value and the major limitations” of a recently released CIA documentary collection on Col. Ryszard Kuklinkski, the Polish official who provided a vast quantity of political and military intelligence to the CIA in the 1970s and early 1980s, are assessed by Mark Kramer of Harvard University in a new publication of the Cold War International History Project.  See “The Kuklinski Files and the Polish Crisis of 1980-1981″ (pdf), March 2009.

The Office of Technology Assessment played a significant role in informing Congressional deliberations on science policy over the course of two decades and generated a body of policy analysis that retains much of its value years after OTA was terminated in 1995.  Today, “the argument to restart the OTA is overwhelming,” argued Gerald Epstein in an essay in Science Progress.

Had Amb. Charles Freeman not withdrawn from his appointment as chairman of the National Intelligence Council, under pressure of controversy regarding his views on Israel, Saudi Arabia and China, he would have attempted to alter the Intelligence Community’s classification practices, he said in an interview with Jim Lobe of Interpress Service news agency.  “I would have liked to have tried to change the culture to value lower levels of classification rather than higher in terms of output,” Amb. Freedman said.  “In general, I would’ve tried very hard to encourage members of the intelligence community to use classified information as a form of corroboration for information that is not classified, or is not terribly sensitive even if it is classified. In other words, I would urge analysts to write down rather than write up terms of levels of classification.”

OLC Torture Memos Declassified

The disclosure of four Bush-era Office of Legal Counsel opinions on interrogation and torture is likely to have significant political and perhaps legal consequences.  But their release is also a landmark in national security classification policy.

These OLC memos, released by the Justice Department yesterday, were among the most urgently sought and the most fiercely protected classified records of recent years.  They addressed fundamental questions of national policy and yet they were off limits to public review and discussion by virtue of their classification status.

“The interrogation techniques described in these memos have already been widely reported,” President Obama said in a statement explaining his decision to declassify the memos.  “Withholding these memos would only serve to deny facts that have been in the public domain for some time.”

But remarkably, this sensible view — that information which has reached the public domain should not remain classified — does not characterize or dictate classification policy.

“Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,” according to Executive Order 12958, as amended.

Nor can judicial review reliably compel disclosure of such information.  In order to win declassification and disclosure of previously released information, a FOIA plaintiff must show that each of the following conditions is met: 1) the information previously released is as specific as the information that is being requested; 2) the information requested matches the information previously released; and 3) the information requested has been made public through an official and documented disclosure (Fitzgibbon v. CIA, D.C. Circuit, 1990).

The new release does not alter this non-disclosure policy, which lends credence to the statement of former CIA director Michael Hayden that the government could have successfully argued against disclosure of the OLC memos in court, as he favored.

But the four newly declassified memos are now themselves “an official and documented disclosure.”  This means that not only have their combined 124 pages been published (with limited redactions) but also that an obstacle to the release of a related body of legal and intelligence information has now been removed.  Such material can no longer legitimately remain classified.  Furthermore, the new release will also enable participants and other officials to speak publicly about the issues involved.

The memos are shocking in their calculated brutality and in their likely violation of categorical legal prohibitions against torture.  They are, as President Obama stated, evidence of a “dark and painful chapter in our history” involving practices that should “never take place again.”  But they also provide abundant food for thought as well as new insight into their authors’ thinking, and their predicament.

The authorization for coercive interrogation of al Qaeda operative Abu Zubaydah was predicated on the “certain” belief that “he is withholding information regarding terrorist networks in the United States… and information regarding plans to conduct attacks within the United States” and that “he refuses to divulge” the information.  Furthermore, there was an estimated threat level “equal to that which preceded the September 11 attacks.”  “This opinion is limited to these facts.  If these facts were to change, this advice would not necessarily apply.”  (“Interrogation of al Qaeda Operative” [pdf], August 1, 2002, at page 1).

In other words, it appears that the OLC authors proceeded not out of sadism or indifference, but out of desperation.

They recognized that under other circumstances (such as law enforcement), the coercive practices that they were authorizing could be thought to “shock the conscience.”  But they concluded that coercive interrogation by the CIA did not violate that standard since it was only being used where the detainee had “knowledge of imminent terrorist threats against the USA” and that it had already proved effective in producing “critical, actionable intelligence.” (“Application of U.S. Obligations Under Article 16″ [pdf], May 30, 2005, at pp. 3, 29ff).

The development of the OLC memos suggests that if torture is to be permanently abolished, alternatives to coercive interrogation that are at least as effective need to be identified, or else the occasional prospect of an “imminent terrorist threat” threatening thousands of lives must be accepted in principle as preferable to the extreme violations of human dignity authorized by OLC.

A couple of other points.  Both President Obama and Attorney General Holder noted that the OLC memos were released as a consequence of  ongoing litigation.  In other words, their release is thanks to the Freedom of Information Act lawsuit filed by the ACLU and its co-plaintiffs, and the resonance that the lawsuit found in the press, the blogosphere and the public.  Congressional oversight did not get the job done (despite a Senate Judiciary Committee subpoena for these records).  This reflects a significant and dangerous weakness on the part of Congress.

Yesterday, former CIA Director Michael Hayden told MSNBC that the CIA interrogation program “began life as a covert action.”  If that is true, it means that there should be a Presidential “finding” authorizing the program, and that such a finding should have been provided to Congressional overseers.  As a covert action, the program may also have entailed active deception.  It’s one more loose end that remains to be tied.

Michael Hayden and former Attorney General Michael Mukasey criticized the release of the OLC memos in “The President Ties His Own Hands on Terror,” Wall Street Journal, April 17.

The ACLU called for appointment of an independent prosecutor to investigate torture under the Bush Administration, in an April 16 release.

The Ron Ridenhour Prizes

Former Justice Department attorney Thomas Tamm, who was one of the early sources for the December 2005 New York Times story on warrantless government surveillance and who is under threat of prosecution for having revealed classified information without authorization, yesterday received the Ridenhour Prize for Truth-Telling.

The Ridenhour Prizes, named for the late Ron Ridenhour who exposed the 1968 My Lai massacre, are intended to “foster the spirit of courage and truth,” particularly when doing so involves defiance of official authority at some personal cost.

Other Ridenhour Prizes, presented at a ceremony yesterday, were given to New Yorker writer Jane Mayer, New York Times columnist Bob Herbert, and reporter Nick Turse.

National Intelligence Council, and More from CRS

Noteworthy new reports from the Congressional Research Service, obtained by Secrecy News, include the following (all pdf).

“The National Intelligence Council: Issues and Options for Congress,” April 10, 2009.

“Pakistan’s Capital Crisis: Implications for U.S. Policy,” updated March 6, 2009.

“Direct Overt U.S. Aid and Military Reimbursements to Pakistan, FY2002-FY2009,” updated April 15, 2009.

“China-U.S. Relations: Current Issues and Implications for U.S. Policy,” April 2, 2009.

DHS Sees Resurgence in Rightwing Extremism

Updated below

“The consequences of a prolonged economic downturn–including real estate foreclosures, unemployment, and an inability to obtain credit–could create a fertile recruiting environment for rightwing extremists and even result in confrontations between such groups and government authorities,” according to a new assessment (pdf) from the Department of Homeland Security Office of Intelligence and Analysis.

“In addition, the historical election of an African American president and the prospect of policy changes are proving to be a driving force for rightwing extremist recruitment and radicalization.”

“A recent example of the potential violence associated with a rise in rightwing extremism may be found in the shooting deaths of three police officers in Pittsburgh, Pennsylvania, on 4 April 2009,” the DHS report said.

See “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” Department of Homeland Security Office of Intelligence and Analysis, April 7, 2009 (For Official Use Only).

The report has drawn attention from several conservative bloggers and talk show hosts, who interpreted the report’s references to right-wing positions on abortion, immigration and gun control as defamatory in this context.  The “document targets most conservatives and libertarians in the country,” according to The Liberty Papers blog.

The report, however, describes “extremists” more narrowly as those “that are primarily hate-oriented” and those that “reject federal authority,” not those who simply oppose abortion or immigration.

A 2001 report prepared for the U.S. Department of Energy examined “Left-Wing Extremism: The Current Threat” (pdf).

DHS reportedly issued its own analysis of left-wing extremism earlier this year. (See Leftwing Extremists Likely to Increase Use of Cyber Attacks over the Coming Decade [pdf], Department of Homeland Security Office of Intelligence and Analysis, January 26, 2009.)

Update: “Unfortunately, this report [on Rightwing Extremism] appears to have blurred the line between violent belief, which is Constitutionally protected, and violent action, which is not,” wrote House Homeland Security Committee chairman Rep. Bennie Thompson in an April 14 letter (pdf) to DHS Secretary Janet Napolitano. “I am disappointed and surprised that the Department would allow this report to be disseminated to its State, local and tribal partners in its present form.”

In an April 15 statement on the report, Secretary Napolitano said: “We are on the lookout for criminal and terrorist activity but we do not – nor will we ever – monitor ideology or political beliefs.”

Sniper Training Manual Remains Offline (at FAS)

“When… dealing with multiple targets, such as two hostage-takers, [snipers] must coordinate to fire simultaneously,” according to a U.S. Army sniper training manual.  “Taking [the targets] out one at a time may allow the second suspect time to harm the hostages.”

This was the scenario facing Navy SEALs on the Indian Ocean on April 12.  They fired simultaneously at three Somali pirates, killing them and rescuing an American hostage.

“Shooting simultaneously by command fire with another sniper is a very important skill to develop and requires much practice,” the Army manual advises.

A copy of the U.S. Army Special Forces Sniper Training and Employment manual (FM 3-05.222) was obtained by Secrecy News.  Although the document is unclassified, it is subject to restricted distribution in order “to protect technical or operational information.”

For once, such restrictions appear to make sense and the 474-page manual will not be posted on the Federation of American Scientists website.  But as always, views on the question of disclosure differ.  A 2003 discussion on the “Shooter’s Forum” website presented contrasting opinions on the desirability of publishing this Manual.

Update (04/15/09): As noted at Cryptome.org today, the document has been made available online elsewhere.

CRS on the Global Financial Crisis

“There seems to be no international architecture capable of coping with and preventing global [financial] crises from erupting,” a newly updated report (pdf) from the Congressional Research Service observes.

“The financial space above nations basically is anarchic with no supranational authority with firm oversight, regulatory, and enforcement powers. There are international norms and guidelines, but most are voluntary, and countries are slow to incorporate them into domestic law. As such, the system operates largely on trust and confidence and by hedging financial bets.”

The 109-page CRS report reviews the origins of the current crisis and summarizes its impact in different regions and countries.  The report has not been made readily available to the public, but a copy was obtained by Secrecy News.  See “The Global Financial Crisis: Analysis and Policy Implications,” April 3, 2009.

Roslyn Mazer to be ODNI Inspector General

The Director of National Intelligence last week named Roslyn A. Mazer of the Department of Justice to be the next Inspector General of the Office of the Director of National Intelligence.

What makes this an intriguing appointment is that from 1996 to 2000 Ms. Mazer was the first chair of the Interagency Security Classification Appeals Panel (ISCAP), which is among the most successful classification reform initiatives of the last half century.  At a time when agency Inspectors General may be asked to assume greater oversight over classification policy, she brings an exceptional depth of knowledge and experience to the subject.

One of the ISCAP’s functions is to consider appeals from public requesters for release of information that executive agencies have withheld as classified.  Under Ms. Mazer’s leadership from 1996 to 2000, the ISCAP declassified information in an astounding 80% of the documents that were presented for its review.

In fact, Ms. Mazer’s ISCAP was so successful in overturning spurious classification claims that the Central Intelligence Agency begged for relief from ISCAP jurisdiction.  The CIA plea was rejected in a 1999 Office of Legal Counsel decision.  But in his 2003 executive order on classification (sect. 5.3f), President Bush granted the CIA a veto over ISCAP declassification rulings.

In a 1998 speech to a conference of intelligence agency classification officials, Ms. Mazer criticized what she termed “the Lewis Carroll element of classification policy” which leads to “keeping classified categories of information that everyone already knows.”

During the Cold War, “closed regimes found themselves hopelessly and fatally outpaced by open societies, and ultimately collapsed from exhaustion,” she reminded the assembled intelligence officials. “This is the reason why our democracy endures, why we live under the oldest living constitutional democracy, and why we cannot export democracy like bananas to formerly closed societies.”

“We prevailed over those societies because of our passion for openness, for trusting our citizens more than we empower our leaders. We celebrate our openness. In fact, it is unnecessary secrecy that is timid and cowardly. Openness is courageous. Be courageous. Be as open as you responsibly can,” Ms. Mazer urged.

Ms. Mazer will succeed Edward Maguire, the outgoing ODNI Inspector General who presented his own critique of the ODNI in testimony before a hearing (pdf) of Rep. Anna Eshoo’s House Intelligence subcommittee last week (“IG Report Blasts the Director of National Intelligence,” Secrecy News, April 2, 2009).

“Tactics in Counterinsurgency” Again Online

“Tactics in Counterinsurgency” (large pdf), a new Army Field Manual that was published on the website of the U.S. Army Combined Arms Center and then removed from public access, is now available on the FAS website.

The new manual, a substantial addition to the literature of counterinsurgency, was reported last week in the Washington Post and Inside the Army.  “After The Post raised questions about its contents last week,” wrote Walter Pincus of the Post on March 31, “it was taken down” from the Army website, even though the document is marked for unrestricted release.

An email inquiry to the Army inquiring why it had been removed was not answered.

See “Tactics in Counterinsurgency,” U.S. Army Field Manual Interim 3-24.2, March 2009 (6.2 MB PDF, 307 pages).

“Setbacks are normal in counterinsurgency, as in every other form of war,” the new manual advises (p. C-5).  “You will make mistakes, lose people, or occasionally kill or detain the wrong person….  If this happens, don’t lose heart, simply drop back to the previous phase of your game plan and recover your balance.”

CIA’s CREST Leaves Cavity in Public Domain

The curious refusal of the Central Intelligence Agency to provide online access to its “CREST” database of declassified documents was examined last week in Mother Jones magazine.

“In a quiet, fluorescently lit room in the National Archives’ auxiliary campus in suburban College Park, Maryland, 10 miles outside of Washington, are four computer terminals, each providing instant access to the more than 10 million pages of documents the CIA has declassified since 1995. There’s only one problem: these are the only publicly available computers in the world that do so.”

See “Inside the CIA’s (Sort of) Secret Document Stash” by Bruce Falconer, Mother Jones, April 3.

A mostly favorable review of the CREST database was provided by historians David M. Barrett and Raymond Wasko in “Sampling CIA’s New Document Retrieval System: McCone’s Telephone Conversations during the Six Crises Tempest,” Intelligence and National Security, vol. 20, no. 2, June 2005, pp. 332-340 (not online).

By denying online public access to the CREST database, the Central Intelligence Agency appears to be at odds with the President’s executive order on classification.  That order states (EO 13292, section 3.7):  “The Director of the Information Security Oversight Office, in conjunction with those agencies that originate classified information, shall coordinate the linkage and effective utilization of existing agency databases of records that have been declassified and publicly released.”

But by refusing to place the CREST database online (or to release it to others who will do so), the CIA is undermining the “effective utilization” of this existing agency database.