Posts from June, 2009

9/11, Info Sharing, and “The Wall”

The rise of “the wall” between intelligence and law enforcement personnel that impeded the sharing of information within the U.S. government prior to September 11, 2001 was critically examined in a detailed monograph (pdf) that was prepared in 2004 for the 9/11 Commission.  It is the only one of four staff monographs that had not previously been released.  It was finally declassified and disclosed earlier this month.

In April 2004, Attorney General John Ashcroft testified (pdf) that the failure to properly share threat information in the summer of 2001 could be attributed to Justice Department policy memoranda that were issued in 1995 by the Clinton Administration.  That is an erroneous oversimplification, the staff monograph contends:  “A review of the facts… demonstrates that the Attorney General’s testimony did not fairly and accurately reflect” the meaning or relevance of those 1995 policy documents.  For one thing, those policies did not even apply to CIA and NSA information, which could have been shared with law enforcement without any procedural obstacles.

But if Attorney General Ashcroft was misinformed, he was not alone.  The 1995 procedures governing information sharing between law enforcement and intelligence “were widely misunderstood and misapplied” resulting in “far less information sharing and coordination… than was allowed.”  In fact, “everyone was confused about the rules governing the sharing and use of information gather in intelligence channels.”

“The information sharing failures in the summer of 2001 were not the result of legal barriers but of the failure of individuals to understand that the barriers did not apply to the facts at hand,” the 35-page monograph concludes.  “Simply put, there was no legal reason why the information could not have been shared.”

The prevailing confusion was exacerbated by numerous complicating circumstances, the monograph explains.  The Foreign Intelligence Surveillance Court was growing impatient with the FBI because of repeated errors in applications for surveillance.  Justice Department officials were uncomfortable requesting intelligence surveillance of persons and facilities related to Osama bin Laden since there was already a criminal investigation against bin Laden underway, which normally would have preempted FISA surveillance.  Officials were reluctant to turn to the FISA Court of Review for clarification of their concerns since one of the judges on the court had expressed doubts about the constitutionality of FISA in the first place.  And so on.  Although not mentioned in the monograph, it probably didn’t help that public interest critics in the 1990s (myself included) were accusing the FISA Court of serving as a “rubber stamp” and indiscriminately approving requests for intelligence surveillance.

In the end, the monograph implicitly suggests that if the law was not the problem, then changing the law may not be the solution.  The document, which had been classified Secret, was released with some small though questionable redactions.  See “Legal Barriers to Information Sharing: The Erection of a Wall Between Intelligence and Law Enforcement Investigations,” 9/11 Commission Staff Monograph by Barbara A. Grewe, Senior Counsel for Special Projects, August 20, 2004.

2008 DNI Briefing: Questions for the Record

For the first time in several years, the Senate Select Committee on Intelligence has once again published unclassified responses from the Director of National Intelligence (pdf) to questions for the record arising from the DNI’s 2008 annual threat briefing to Congress.  In the past, such formal responses to Congress have offered an unexpected wealth of information and updated intelligence.

Unfortunately, the latest answers were transmitted to the Committee in May 2008 and not published until May 2009, so to a large extent they are stale, have been overtaken by events, or are of limited historical interest.  But in some cases, they present pithy statements of official policy or otherwise interesting interpretations of events:

“We are unequivocally opposed to leniency for Mr. [Jonathan] Pollard,” the convicted spy.

“For a number of reasons, we believe China poses a significantly greater foreign intelligence threat today than it did during most of the cold war era.”

“The Intelligence Community plays a crucial role in the protection of U.S. persons and national interests from emerging or re-emerging disease outbreaks.  The IC provides earliest possible warning… using both clandestine collection and open source collection of foreign print and electronic media.”

See the DNI responses to questions for the record from the February 5, 2008 hearing on Current and Projected National Security Threats to the United States, transmitted to the Senate Intelligence Committee May 2, 2008.

Energy Secretary Chu Embraces FOIA Policy

The controversial idea of the “unitary executive” in which all executive power is vested in the President of the United States may be a coherent legal theory.  But in reality, things don’t happen within the executive branch simply because the President commands them.  In practice, what we have is a “fragmentary executive” the efficacy of which is entirely dependent on the competence and the good faith of thousands of officials who must consciously choose to implement the declared policies of the Administration.

With that in mind, it is noteworthy that the Secretary of Energy, Steven Chu, reiterated and endorsed the President’s Freedom of Information Act policy in a memorandum (pdf) to senior Energy Department officials this month.

“All DOE employees have the responsibility to ensure the success of the agency’s FOIA program,” Secretary Chu wrote.  “We can no longer use competing agency priorities and insufficient technological support as a basis for not responding to requests expeditiously.  DOE employees should no longer view FOIA as an additional duty.  It is your responsibility to ensure that FOIA requests are responded to in a timely manner.”

“I want to make it clear that DOE will adhere to the President’s and Attorney General’s guidance,” Secretary Chu concluded.  See “Freedom of Information Act,” memorandum for heads of departmental elements from Energy Secretary Steven Chu, June 5, 2009 (thanks to nukewatch.org).

White House Intel Advisory Board Has No Members

President Obama has still not appointed anyone to the President’s Intelligence Advisory Board (PIAB), Secrecy News has learned.

The PIAB has broad responsibility for conducting internal executive branch oversight of intelligence, and it is specifically charged with alerting the President to intelligence activities that may be unlawful or contrary to executive order or presidential directive.  Although the PIAB rarely releases its findings to the public, it is positioned to play a potentially important role in the intelligence oversight process.  Its actual performance seems to depend on the qualifications of Board members, which have sometimes been minimal, as well as the receptivity of an Administration to the oversight process.

Without any members, the PIAB is “kind of running on autopilot,” said Homer Pointer, counsel to the Board.  But he added that “day to day intelligence oversight marches on,” particularly since the Director of National Intelligence and relevant department heads are required by executive order to report to the Board on a regular basis.

The Boston Globe reported last year that President Bush had “stripped the Board of much of its authority” (“President weakens espionage oversight” by Charlie Savage, March 14, 2008) but Mr. Pointer disputed that assessment.

News reports in January 2009 indicated that President-elect Obama had asked former DNI J. Michael McConnell to serve on the PIAB.  But for whatever reason, a formal appointment of Mr. McConnell has not yet been made, Mr. Pointer said, nor have any other members of the Board been designated.

“We are hopeful that a new Board will be named soon,” Mr. Pointer said.

“Sensitive” Info in the Congressional Record

Rep. Frank Wolf (R-VA) placed two “sensitive but unclassified” (SBU) State Department documents in the Congressional Record last week, illustrating the informal, non-binding character of this information control marking.

Rep. Wolf took to the House floor to express his views on the Council on American-Islamic Relations (CAIR), an advocacy organization that he said had unacceptable links to terrorist groups.  CAIR has generally disputed such allegations.

But what is of interest here is Rep. Wolf’s willingness to introduce two State Department cables that are specifically marked “sensitive” and “SBU” and to place them in the public record.  Doing so might annoy the State Department and violate unofficial norms of confidentiality, but it breaks no law.

The problematic aspect of SBU and similar labels is that anyone can mark anything “sensitive” or “for official use only” for any reason.  The system is completely unregulated.  But the flip side is that records bearing such markings are not rigorously protected and in fact are often openly distributed.

As the government moves to replace all kinds of SBU markings with a more uniform “controlled unclassified information” (CUI) system, the expectation is that the standards for applying controls on sensitive but unclassified records will be more clearly articulated, limited and enforced.  By the same token, however, the freewheeling disclosure of such records may grind to a halt.  It’s hard to know in advance if the benefits in terms of public access to government information will exceed the costs.

A Classified Objection to Gen. McChrystal

Gen. Stanley McChrystal was confirmed by the Senate last week to be the new commander of U.S. (and NATO) forces in Afghanistan, a role that he assumed today.  But his nomination was opposed by Sen. Russ Feingold (D-WI) who objected to the General’s advancement on unspecified “classified” grounds.

“I oppose the nomination of LTG Stanley McChrystal to command U.S. forces in Afghanistan for two reasons,” Senator Feingold said on June 11. “The first relates to a classified matter about which I have serious concerns. I have conveyed those concerns in a letter to the President.”

The second reason cited by Sen. Feingold was McChrystal’s embrace of interrogation techniques that went beyond those authorized in the Army Field Manual on the subject.

DoD Role During Flu Pandemics, and More from CRS

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

“Comprehensive Nuclear Test Ban Treaty: Updated ‘Safeguards’ and Net Assessments,” June 3, 2009.

“The Role of the Department of Defense During a Flu Pandemic,” June 4, 2009.

“Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States,” June 2, 2009.

“The President’s Office of Science and Technology Policy: Issues for Congress,” updated June 3, 2009.

“Landsat and the Data Continuity Mission,” May 22, 2009.

“Geospatial Information and Geographic Information Systems (GIS): Current Issues and Future Challenges,” June 8, 2009.

Classification and the “Descent Into Torture”

The public has been significantly misled and misinformed concerning the practice of abusive interrogation by the U.S. government and the resulting damage to American political institutions, said Senator Sheldon Whitehouse (D-RI) on the Senate floor yesterday.

“I am very sorry to say this–but there has been a campaign of falsehood about this whole sorry episode. It has disserved the American public. As I said earlier, facing up to the questions of our use of torture is hard enough. It is worse when people are misled and don’t know the whole truth and so can’t form an informed opinion and instead quarrel over irrelevancies and false premises. Much debunking of falsehood remains to be done but cannot be done now because the accurate and complete information is classified,” Sen. Whitehouse said.

“I want my colleagues and the American public to know that measured against the information I have been able to gain access to, the story line we have been led to believe–the story line about waterboarding we have been sold–is false in every one of its dimensions.”

He itemized several statements he said were demonstrably untrue, beginning with the declaration by President Bush that “America does not torture.”

He said a structured investigation was needed into what he called “America’s descent into torture.”  First, it is necessary to document what was done, under what conditions, and to what end.  A second set of questions concerns “how this was allowed to happen.”  Finally, a rigorous debunking of erroneous and false assertions is needed.

Classification policy is an obstacle to all of these objectives, he said, especially the latter:  “At the heart of all these falsehoods lies a particular and specific problem: The ‘declassifiers’ in the U.S. Government are all in the executive branch.  No Senator can declassify, and the procedure for the Senate as an institution to declassify something is so cumbersome that it has never been used.”

Recent Congressional Actions and Publications

Senators Joe Lieberman and Lindsey Graham said they would do their utmost to block the release under the Freedom of Information Act of photographs documenting the abuse of detainees held in U.S. custody.  “Such a release would be tantamount to a death sentence to some who are serving our nation in the most dangerous and difficult spots like Iraq and Afghanistan,” they said, urging passage of an amendment to exempt any such photographs from the FOIA.

Rep. Jane Harman introduced legislation to terminate the National Applications Office, the DHS organization that would employ intelligence satellite imagery for homeland security and domestic law enforcement purposes.  DHS has failed to provide a legal framework and justification for the program, she said, and therefore “Operation of the NAO in its current state poses serious constitutional questions and threatens to violate the privacy of Americans and their civil liberties.”

Senator Russ Feingold and several colleagues in both parties introduced a resolution that would strengthen the Senate Intelligence Committee by giving it the power to appropriate as well as authorize funds for intelligence.  The move is needed, the resolution said, “to provide vigilant legislative oversight over the intelligence activities of the United States to ensure that such activities are in conformity with the Constitution and laws of the United States.”

The record of a July 2006 hearing before the Senate Judiciary Committee entitled “Hamdan v. Rumsfeld: Establishing a Constitutional Process” (pdf) was published in April 2009, with supplementary material for the record.

Another Senate Judiciary Committee hearing volume from a June 2006 hearing on “The Use of Presidential Signing Statements” (pdf) was also published in April 2009.

Congressional Access to National Security Info

Executive branch officials understandably seek to maximize their authority to regulate the distribution and disclosure of classified national security information, and they often cite historical precedents dating back to the days of President George Washington to justify their claims.  But though some members of Congress seem not to realize it, Congress has an independent claim to access such information, a claim with its own historical foundation.

A new analysis (pdf) by Louis Fisher of the Law Library of Congress provides a nuanced account of several episodes from the Washington Administration that tend to refute the more expansive views of executive branch authority over classified information.

“Upon closer examination, precedents from the Washington Administration do not support the claim of exclusive and plenary authority by the President,” Dr. Fisher writes.  “The scope of the President’s power over national defense and foreign affairs depends very much on what Congress does in asserting its own substantial authorities in those areas,” he concludes.  See “Congressional Access to National Security Information: Precedents from the Washington Administration” by Louis Fisher, Law Library of Congress, May 22, 2009.