Posts from July, 2009

JFK Urged Release of Most Diplomatic Records After 15 Years

The latest volume of the Foreign Relations of the United States (FRUS) series, the official record of U.S. foreign policy, reflects events that took place from 1969 to 1972, or nearly forty years ago.  This represents a continuing violation of a 1991 statute which requires the Secretary of State to publish FRUS “not more than 30 years after the events recorded.”  But even that seemingly unachievable goal is insufficiently ambitious, according to a 1961 directive issued by President John F. Kennedy.

“It has long been a point of pride of our government that we have made the historical record of our diplomacy available more promptly than any other nation in the world,” President Kennedy wrote.

“In recent years the publication of the ‘Foreign Relations’ series has fallen farther and farther behind currency,” he wrote back then.  “The lag has now reached approximately twenty years.  I regard this as unfortunate and undesirable.  It is the policy of this Administration to unfold the historical record as fast and as fully as is consistent with national security and with friendly relations with foreign nations.”

“In my view, any official should have a clear and precise case involving the national interest before seeking to withhold from publication documents or papers fifteen or more years old,” President Kennedy concluded.  See National Security Action Memorandum No. 91, “Expediting Publication of ‘Foreign Relations’,” September 6, 1961.

Barriers to Archival Access Stymie Historical Research

Notwithstanding official proclamations of a new era of transparency, public access to declassified historical records continues to be obstructed by procedural potholes, limited resources for processing records, competing priorities and, sometimes, bad faith.

At the Naval History and Heritage Command (NHHC), declassified files that used to be open to the public have been withdrawn indefinitely so that they may reviewed for inadvertent releases of classified nuclear weapons-related information, pursuant to the 1999 “Kyl-Lott” Amendment.  Nearly all Navy records there dating from the 1960s forward are now completely unavailable to the public, said historians Larry Berman of UC Davis and William Burr of the National Security Archive.

The blanket closure of entire collections, they suggested in an April 29 letter (pdf), is “wholly inconsistent with the spirit of the new presidential administration.”

As an alternative, Berman and Burr asked the Navy to at least permit expedited review of specific records in response to researcher interests, as the National Archives did when it implemented a similar Kyl-Lott review. Earlier this month, their proposal was denied.

“I regret to inform you that the Navy is unable to support your request at this time due to previously established government declassification priorities,” wrote Vice Admiral J.C. Harvey, Jr. (pdf), Director of the Navy Staff on July 1.

Not only that, he said, but the barriers preventing public access to Navy historical records will remain in place for at least several years to come.  “A Kyl-Lott review of the NHHC holdings may start in 2012 barring any change in, or additions to, government priorities.”

Until then, researchers interested in Navy history are stymied.  “Any researcher who wants to look at Navy records from the early 1960s forward is frozen out by this policy,” said Mr. Burr of the National Security Archive.  “If  David Vine, the author of the recent book on Diego Garcia ‘Island of Shame,’ which made good use of records at the Navy Yard, was starting his work this year he would be totally out of luck.”

Faced with such an uncompromising response, researchers can still employ the Freedom of Information Act, which is arguably even more burdensome for the government to implement but which is legally enforceable.

But Prof. Berman said this option was problematic as well.  The Navy “denied access to their finding aids because they feared this would ease my FOIA request,” he said.  And Navy officials also denied his request for a FOIA fee waiver on the extraordinary grounds that the records he requested will be used to support his work on the first scholarly biography of Admiral Elmo Zumwalt.  “Imagine that, a historian plans to write a book,” he said.

It is well established in FOIA case law that scholarship, like news gathering, is not a private commercial interest that would disqualify a requester from receiving a fee waiver.  Prof. Berman said he would appeal the denial.

New Light on Intelligence Notifications to Congress

The White House has threatened to veto the FY2010 intelligence bill if it amends the National Security Act to permit expanded notification of sensitive intelligence activities to more members of the intelligence committees, as the House Intelligence Committee proposed.  However, based on the findings of a new report from the Congressional Research Service, the controversial amendment may not be necessary in order to achieve the intended result.

The new CRS report (pdf) explains the role of the “Gang of Four,” meaning the chairmen and ranking members of the House and Senate Intelligence Committees, who are to be informed of particularly sensitive intelligence activities.  (When the Bush Administration first notified Congress of its warrantless surveillance program, it limited the disclosure to the “Gang of Four.”)

The “Gang of Four,” the CRS explains, is distinct from the “Gang of Eight,” which includes the leaders of the intelligence committees as well as the majority and minority leaders of the House and Senate.  The Gang of Eight is notified regarding sensitive covert action programs.  The Gang of Four is notified in cases of certain non-covert action intelligence programs, mainly sensitive intelligence collection programs.  The Gang of Eight has a basis in statute.  The Gang of Four does not.

Both notification arrangements have been criticized for unduly restricting the ability of congressional leaders to consult colleagues and staff.  Rep. Jane Harman, for example, complained in 2006 that members of the Gang of Eight who are granted official notifications of covert actions “cannot take notes, seek the advice of their counsel, or even discuss the issues raised with their committee colleagues.”  It is these sort of restrictions that the proposed House amendment aimed to revise.

But remarkably, the idea that such internal disclosures are barred seems to be more a matter of convention than a binding requirement, the CRS report concluded.

“There arguably is no provision in statute that restricts whether and how the Chairman and Ranking Members of the intelligence committees share with committee members information pertaining to intelligence activities that the executive branch has provided only to the committee leadership, either through Gang of Four or Gang of Eight notifications.  Nor apparently is there any statutory provision which sets forth any procedures that would govern the access of appropriately cleared committee staff to such classified information.”

And as a matter of fact, “there have been instances when intelligence committee leadership has decided to inform the full membership of the intelligence committees of certain Gang of Four notifications,” the CRS found.

A copy of the CRS report was obtained by Secrecy News.  See “‘Gang of Four’ Congressional Intelligence Notifications,” July 14, 2009.

Classified Intelligence Leaks, 2001-2008

Between September 2001 and February 2008, the Federal Bureau of Investigation initiated and closed the investigation of 85 reported leaks of classified intelligence information, “all of which concerned unauthorized disclosures of classified information to the media,” FBI Director Robert S. Mueller III told the Senate Intelligence Committee in a written response to questions (pdf) dated February 4, 2008.

“None of these cases reached prosecution,” he said.  As of February 2008, “21 such cases are [still] under investigation.”

This information appeared in questions for the record that were appended to “Current and Projected National Security Threats to the United States” (pdf), a hearing before the Senate Intelligence Committee that was held January 11, 2007.  The complete hearing volume was finally published last month, and the newly published questions for the record are excerpted here.

The Senate Intelligence Committee has renewed its practice of including questions for the record (QFRs) in published hearing volumes, for which one may be thankful, even when the answers are classified or are not provided by the agencies at all. Some additional QFRs, also newly published last month, appear in “Statutory Authorities of the Director of National Intelligence” (pdf), Senate Intelligence Committee, February 14, 2008.

Al Qaida: Western Spies Multiply “Like Locusts”

From the point of view of an al Qaida military leader, Western intelligence agents are now ubiquitous in the lands of Islam, and their operations have been extraordinarily effective.  The Western spies are unfailingly lethal, leaving a trail of dead Islamist fighters behind them.  Worst of all, they have managed to recruit innumerable Muslims to assist their war efforts.

“The spies… were sent to penetrate the ranks of the Muslims generally, and the mujahidin specifically, and [they] spread all over the lands like locusts,” wrote Abu Yahya al-Libi, an al Qaida field commander in Afghanistan, in a new book called “Guidance on the Ruling of the Muslim Spy” (pdf).

“The spies are busy day and night carrying out their duties in an organized and secret manner… How many heroic leaders have been kidnapped at their hands? How many major mujahidin were surprised to be imprisoned or traced?  Even the military and financial supply roads of the mujahidin, which are far from the enemy’s surveillance, were found by the spies.”

Al Qaida operations have been severely impeded by the intelligence war against them, al-Libi said.  “As soon as the mujahidin get secretly into an area on a dark night, they are confronted by the Cross forces and their helpers.  Many are killed or captured.”

Western spies are found under every conceivable cover, al-Libi wrote.  “They have among them old hunchbacked men who cannot even walk, strong young men, weak women inside their house, young girls, and even children who did not reach puberty yet.  The spy might be a doctor, nurse, engineer, student, preacher, scholar, runner, or a taxi driver.  The spy can be anyone….”

“The occupation armies completely rely on recruiting spies and informants from the Muslim lands they usurped and conquered… The spy lives among Muslims, being one of them: living their life, wearing their dress, eating what they eat… Therefore, he can access what the armed soldiers of the occupation cannot put hands on.”

In the new book, published in Arabic (pdf) on jihadist websites on June 30, al-Libi ruminated at length on the religious and legal problem of the Muslim spy.  Can there be a Muslim who spies against other Muslims or, since such a person would by definition be an apostate, is a Muslim spy a contradiction in terms?  May such a person be killed?  (It depends.)  To convict a spy nowadays is it necessary to rely on the traditional two witnesses?  (Again, it depends.)  What about a person who is mistakenly executed as a spy?  (God will reward him.)

Pervading the book is a sense of the overwhelming impact of U.S. and Allied intelligence operations on jihadist forces, and the willingness of indigenous Muslims to act with Western intelligence against those forces.

“Everyone who lives in the jihad battlegrounds… knows well that the occupation forces could not do one-tenth of what they do now if they did not recruit spies and informants….  Most of the mujahidin and their soldiers were killed or captured because of the intelligence information that the infidel forces have obtained from the secret soldiers whom they recruit, like swarms of locusts, from the native citizens who talk our language and pretend they are Muslims.”

“Guidance on the Ruling of the Muslim Spy” by Abu Yahya al-Libi was translated, rather clumsily, by the DNI Open Source Center.  A copy was obtained by Secrecy News.

The book cited the use of electronic homing devices to guide air-launched missiles to their targets and images of several such devices were included in the original Arabic version of the book (at page 146).  The purported use of the devices was discussed in “CIA Drone Targeting Tech Revealed, Qaeda Claims” by Adam Rawnsley, Wired Danger Room, July 8, 2009.  Memri.org also prepared a proprietary translation of the new Al-Libi book, which was reported by Fox News last week.

NRO Releases Portion of 2009 Budget Justification

The National Reconnaissance Office, which develops, launches and operates U.S. intelligence satellites, last week released most of the unclassified portions (pdf) of its Congressional Budget Justification Book for FY2009.  While those unclassified portions are only a small fraction of the full budget document, they still provide a fresh glimpse or two of the agency and its four directorates (IMINT, SIGINT, Advanced Systems and Technology, and Communications).

“The U.S. is arguably more reliant on overhead collection that ever before,” the NRO says, while “intelligence problems are becoming more complex and increasingly require synergistic, multi-INT, multi-source solutions.”  See “National Reconnaissance Program,” FY2009 Congressional Budget Justification, February 2008, released under the Freedom of Information Act July 2009.

The NRO has suffered serious acquisition failures in recent years and it has been rumored, unconfirmably, that the agency may be broken up or reorganized.  (“Spy Agency May Face Ax” by Colin Clark, DoD Buzz, July 1, 2009).  Meanwhile, President Obama reportedly issued a directive last spring — Presidential Study Directive 2 — ordering a review of classified space activities.  (“President Orders Sweeping U.S. Space Policy Review” by Amy Klamper, Space News, July 6, 2009).

Current Spreading & the Center for Security Evaluation

A newly disclosed report from the JASON defense advisory panel may not excite the interest of anyone who is not a student of electrical engineering.  It examines the distribution of electrical current flowing through a long, narrow conductive object.  See “Current Spreading in Long Objects” (pdf), October 2008.

Somewhat more interesting is the fact that the JASON study was sponsored by the Center for Security Evaluation.  The Center is a component of the Office of the Director of National Intelligence that supports the Department of State in protecting intelligence and other classified information in U.S. diplomatic facilities abroad.  Its charter was set forth in “Center for Security Evaluation” (pdf), Intelligence Community Directive 707, October 17, 2008.

IG Report on “President’s Surveillance Program” Released

Last year, Congress directed intelligence agency Inspectors General to prepare an unclassified report on the Bush Administration’s warrantless surveillance program. That report has just been released. It traces the origins, implementation, and utilization of the Program, and discusses the legal questions surrounding its development. See Unclassified Report on the President’s Surveillance Program (pdf), Joint Inspector General Report, 10 July 2009.

Covert Action Notification Policy in Dispute

The intelligence authorization bill that is pending in the House of Representatives would generally require all members of the intelligence committees to be briefed on covert actions, not just the so-called “Gang of Eight,” unless the Committee itself decided to limit such briefings.

“The Committee understands well the need to protect intelligence information from unauthorized disclosure and the prerogatives of the executive branch with respect to the protection of classified information. However, these principles must be balanced against the constitutional requirement for congressional oversight,” the Committee wrote in its report.

The White House said it “strongly objects” to that provision and suggested the President would veto the bill to block it.  The revised notification procedures would undermine “a long tradition spanning decades of comity between the branches regarding intelligence matters,” the July 8 White House Statement of Administration Policy (pdf) said.

But a new report from the Congressional Research Service reminds readers that the “tradition” regarding covert action notification is not so long, and that it is subject to modification in response to changing circumstances.  It was first put in place in 1980, during the Iran hostage crisis.  In 1991, following the Iran-Contra Affair, it was elaborated in congressional report language.  Following the momentous challenges to congressional oversight in recent years, it would not be surprising if it were adjusted further.

A copy of the new CRS report was obtained by Secrecy News.  See “Sensitive Covert Action Notifications: Oversight Options for Congress,” July 7, 2009.

The CRS report mentions in passing an apparent discrepancy in the public record concerning covert action and the CIA detainee interrogation program.  In pre-confirmation responses to questions (pdf, p.9), DNI Dennis Blair told the Senate Intelligence Committee that neither the Terrorist Surveillance Program nor the CIA detention, interrogation and rendition programs were covert actions and that therefore neither should have been subject to limited “Gang of Eight” notification procedures.  But former CIA director Michael Hayden said in an April 16, 2009 news interview that the CIA interrogation program “began life as a covert action.”  CIA Director Leon Panetta, when asked about both programs (pdf, pp. 16-17) prior to his confirmation, said that the Terrorist Surveillance Program was not a covert action, but he was silent about the CIA program.  Both DNI Blair and DCIA Panetta prefaced their responses with a disclaimer that they were not yet privy to classified information on these matters, though presumably the contents would have been reviewed prior to submission to eliminate factual errors.  The discrepancy between their statements and that of former DCIA Hayden is unresolved.