Posts from June, 2010

Declassification and the “Crisis” in Intelligence History

The ongoing failure to establish a robust, reliable and productive declassification program is steadily eroding the study of intelligence history and may lead to the collapse of the entire field, one intelligence historian told the National Security Agency last month.

“I don’t think it’s an exaggeration to say that we’re at a crisis point in the study of intelligence history in general, and signals intelligence history in particular;  because there is a very real question of whether any serious historians outside of the intelligence community are going to continue trying to research and understand and write about this subject at all,” said author Stephen Budiansky in an invited lecture at the National Cryptologic Museum at Fort Meade on May 24.

“The critical mass of scholars willing to invest the considerable energy required to master the technicalities of a complex and often difficult-to-understand subject is dwindling in the face of the impossibility of making a career in a field where the primary sources — notably nearly all documents relating to the post-World War II period — are locked away and no longer forthcoming.”

“As my fellow intelligence historian David Alvarez recently remarked to me, Dave Kahn [author of the pioneering book 'The Codebreakers'] may have the unique distinction of having created an entire new field of study, watched it blossom, and lived to see its demise,” Mr. Budiansky said.

“Alvarez said with only slight exaggeration that almost no one is working in the field of intelligence history any more. ‘Even the crazies seem to have lost energy,’ he said.  He was recently on a panel to award a prominent prize for the best paper in any aspect of cryptologic history.  Well past the deadline, they had received no entries at all.”

The main thrust of Mr. Budiansky’s lecture, entitled “What’s the Use of Cryptologic History?” (and not yet published), was not a plea for favoritism toward intelligence historians, but rather an argument for the importance of intelligence history — to the general understanding of history, and to the practice of intelligence itself.

As it happens, a new effort to expedite the declassification of historical records is now underway at the new National Declassification Center.  The Center has been tasked by President Obama with eliminating the backlog of more than 400 million pages of classified records that are more than 25 years old by the end of 2013.

Millions of newly declassified pages should be publicly available by the end of this month and each month thereafter, said Assistant Archivist Michael Kurtz on a conference call on June 4.

This is a well-intentioned effort that will almost certainly yield a significant increase in public access to declassified records.  But it also seems biased towards secrecy in two unfortunate ways.

First, the review of the backlog will be conducted on a Pass/Fail basis, Mr. Kurtz said.  That means that if a document contains any classified information at all, even a single word or number, the entire document will be withheld from release.  This approach may be necessary in order to gain some traction on the enormous backlog and to avoid getting bogged down in details.  But the regrettable consequence is that none of the unclassified contents of many partly classified documents will be disclosed through this process.  (The documents may be redacted for release at a later time through a Freedom of Information Act request or through a subsequent declassification review.)

Second, the documents that do pass the review and are declassified will be subjected to two quality control audits to ensure that no classified information has inadvertently passed through.  One audit will be performed by the Archives and a second audit will be done by the Department of Energy.  On the other hand, however, there will be no audit of withheld records to ensure that no unclassified record has been unnecessarily kept secret.  In effect, the process is tilted towards minimizing disclosures of classified information rather than maximizing disclosures of unclassified information.

The National Archives has prepared a draft prioritization plan to guide its declassification activities, and has invited public input on the plan.  A public forum on the subject will be held on June 23.

Grid Protection and Cybersecurity

The House of Representatives yesterday passed the “Grid Reliability and Infrastructure Defense Act” which is intended to bolster that national electric grid against terrorist attacks, cyber threats, electromagnetic pulse weapons and solar storms. The Act authorizes the Federal Energy Regulatory Commission to issue emergency orders to protect critical electric infrastructure, and to take other measures to address current and potential vulnerabilities.

“The electric grid’s vulnerability to cyber and to other attacks is one of the single greatest threats to our national security,” said Rep. Ed Markey (D-MA), who introduced the bill.

The floor debate on the bill was a somewhat jarring mix of prudent anticipation and extravagant doomsday warnings.

“Some of us read the book ‘The Road’ [a post-apocalyptic tale by Cormac McCarthy],” said Rep. Fred Upton (R-MI).  “Lots of different scenarios are out there.  We need to be prepared.  This bill moves us down that road.”

“Scientists tell us that the likelihood of a severe naturally occurring geomagnetic event capable of crippling our electric grid is 100 percent,” said Rep. Bennie Thompson (D-Miss.).  “It will happen; it is just a question of when.”

“If you believe intelligence sources, our grid is already compromised,” advised Rep. Yvette Clarke (D-NY).

The Journal of National Security Law & Policy has just published a special issue dedicated to cybersecurity, with fifteen papers on various aspects of the issue.  From various perspectives, they address what is known about the nature of the threat, current vulnerabilities, the role of the federal government, and policy options that are under consideration.

Update: See, relatedly, this July 2009 congressional hearing volume on Securing the Modern Electric Grid from Physical and Cyber Attacks (pdf).

ODNI Budget Justification for 2008 Released (Redacted)

The Office of the Director of National Intelligence has released the unclassified portions of its Congressional Budget Justification Book for Fiscal Year 2008 (pdf), in response to a three year old Freedom of Information Act request from the Federation of American Scientists.

Most of the substance of the document and all of the budget figures have been withheld on asserted national security grounds.  But a few tidbits of interest remain.  For example:

  • In 2008, ODNI planned to “deploy a working Library of National Intelligence” and to “ensure that all IC products are represented in the Library.”  It also planned to “use the Outside Experts Panel… to analyze and recommend opportunities to support democracy movements” and to “fund and support a research repository of materials related to democratic development managed by the Open Source Center.”  (See p. 107).
  • The office of Oversight and Liaison within the DNI Special Security Center is “the ODNI focal point for the IC for reporting and coordination of unauthorized disclosures of intelligence information.”  (See p. 144).
  • MIEs, or Multidisciplinary Intelligence Experiments, “serve to identify innovative methods for leveraging cross-agency systems and processes to address difficult, high priority intelligence problems.  The MIE Program is a collaborative effort by the CIA, DIA, NGA, NSA, NRO and FBI to develop, evaluate and analyze new concepts for operating in an integrated and synchronized manner.” (See p. 219).
  • SHARP, the Summer Hard Problems Program, “is a four-week seminar sponsored by the ODNI Office of Analytic Technology and Transformation. It is comprised of intelligence community, other governmental, and non-government experts and focuses on a single intelligence analytic challenge.” (See p. 223).

A copy of the redacted ODNI Congressional Budget Justification Book for Fiscal Year 2008 is posted here.

Deepwater Horizon Oil Spill, and More from CRS

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News that have not previously been made available online include the following (all pdf).

“Deepwater Horizon Oil Spill: Selected Issues for Congress,” May 27, 2010.

“Deferred Examination of Patent Applications: Implications for Innovation Policy,” May 27, 2010.

“Post-Employment, ‘Revolving Door,’ Laws for Federal Personnel,” updated May 12, 2010.

“A New United Nations Entity for Women: Issues for Congress,” May 25, 2010.

“Democratic Reforms in Taiwan: Issues for Congress,” May 26, 2010.

“Detection of Nuclear Weapons and Materials: Science, Technologies, Observations,” updated June 4, 2010.

UN Proposes “Good Practices” for Intelligence

The United Nations Human Rights Council last week presented a new set of institutional and policy practices for intelligence agencies that it said would help to improve accountability and protection of human rights in intelligence policy.

The new “Compilation of good practices on legal and institutional frameworks and measures to ensure respect for human rights by intelligence agencies while countering terrorism” (pdf) discusses 35 principles and practices in four categories: legal mandate, oversight, compliance with human rights standards, and issues related to specific intelligence functions.  The compilation was prepared for the UN by Special Rapporteur Martin Scheinin with the assistance of the Geneva Centre for the Democratic Control of Armed Forces.

The UN Human Rights Council does not have (or claim to have) authority to dictate the intelligence policies of member nations.  Moreover, the proposed “good practices” do not distinguish between democracies and dictatorships, or among governments that have an independent judiciary and those that came to power through electoral fraud or military coup.  The practices also do not differentiate among domestic, foreign and military intelligence services, though each of these may be subject to different legal and policy frameworks.  “It is not the purpose of this compilation to promulgate a set of normative standards that should apply at all times and in all parts of the world,” the document states.

Indeed, “Very few States have included all of the practices outlined below in their legal and institutional frameworks for intelligence services and their oversight.  Some States will be able to identify themselves as following the majority of the 35 elements of good practice.  Other States may start by committing themselves to a small number of these elements….”

But Mr. Scheinin told the Council last week that he “hoped that States would use his compilation of good practices in an assessment of their own law and practice, and identify the areas of full adherence, of partial adherence and of non-adherence. Thereafter, they would hopefully determine the areas where they wished to adhere with the identified good practices in the future and set benchmarks for getting there.”  In other words, the compilation can serve as a template which citizens can use for comparing and evaluating national intelligence policies.

In many respects, the United States is among the nations with the best intelligence practices, with a relatively well-developed legal framework for intelligence activities and a mature oversight apparatus.  But in other respects, it falls short.

For example, the UN compilation’s Practice 9 requires that “Any individual who believes that her or his rights have been infringed by an intelligence service [should be] able to bring a complaint to a court or oversight institution…. Individuals affected by the illegal actions of an intelligence service [should] have recourse to an institution that can provide an effective remedy, including full reparation for the harm suffered.”

But in cases like those of Khaled el-Masri and Maher Arar — who appear to have been wrongly detained, “rendered” abroad, and tortured — no adjudication or remedy is available from the U.S. government since their complaints have been deflected by the use of the state secrets privilege.

More generally, intelligence oversight in the U.S. has failed to generate a consensual public record concerning the extraordinary intelligence activities of the post-9/11 era, leaving the field open to continuing allegations of abuse and violations of law.  Today, Physicians for Human Rights issued a report alleging that CIA medical personnel were complicit in unlawful human experimentation through their collaboration in monitoring the application of “enhanced” interrogation techniques.  The CIA denies the charge.

In another instance where U.S. practice falls short of the ideal, the UN compilation’s Practice 3 directs that “The powers and competences of intelligence services [should be] clearly and exhaustively defined in national law.”

But the terms of current U.S. intelligence law are not entirely clear or exhaustive.  We don’t know, for example, the current nature or scope of domestic surveillance activities or what exactly was permitted under the most recently enacted amendments to the Foreign Intelligence Surveillance Act.

That absence of public clarity is deliberate, said NSA Director Gen. Keith B. Alexander, the new Commander of US Cyber Command, in a speech (pdf) at the Center for Strategic and International Studies last week.

In response to a question from Kate Martin of the Center for National Security Studies about the feasibility of increasing public disclosure of cyber security policy, Gen. Alexander said that that was not his preferred approach.  Instead, he promised, government officials would be fully candid with each other, while continuing to withhold information from the public.  In other words, he said, what Americans can expect is “transparency at the classified level.”

Another Leak Arrest

The U.S. Army has arrested Spc. Bradley Manning of Potomac, Maryland for unauthorized disclosure of classified information.  Among other things, he is suspected of having provided the video of a 2007 Apache helicopter strike in Baghdad that killed several civilians to the Wikileaks web site, which published it online in April of this year.  The story was reported last night by Wired’s Threat Level blog.  See “U.S. Intelligence Analyst Arrested in Wikileaks Video Probe” by Kevin Poulsen and Kim Zetter.

Spc. Manning is currently being held in pre-trial confinement in Kuwait, according to an Army statement obtained by NPR.

His arrest is the third known apprehension of a suspected leaker during the Obama Administration, after Shamai Leibowitz and Thomas A. Drake, and seems to reflect an increasingly aggressive response to unauthorized disclosures of classified information.

OSC Views Left-Wing Crime in Germany

“German security authorities reported a substantial increase in crime and attacks on police in 2009 related to left-wing political groups and individuals,” said a new report (pdf) from the DNI Open Source Center.  “According to Germany’s Interior Ministry, more extremist crimes and acts of violence occurred in 2009 than in any year since 2001. The ministry reported that in 2009, left-wing extremist crimes increased by almost 40% to 9,375,” the report said.

“The Berlin intelligence service chief called his city the ‘German stronghold of left-wing extremism,’ noting 2,200 resident radical individuals, 950 of whom are ‘autonomous’ leftist anarchists. According to the police, the number of leftist crimes in Berlin doubled to 1,300 in 2009…. This increase in left-wing crime represents an additional concern alongside Germany’s perceived problems with right-wing extremist and immigrant crime….Federal and local government officials have initiated measures to combat left-wing extremism,” the report said.

A copy of the unclassified report, marked For Official Use Only,” was obtained by Secrecy News.  See “German Left-Wing Crime Increase Adds to Public Security Concerns,” Open Source Center, April 27, 2010.

DoD Affirms Policy on Open Research

In a move that may help to discourage habitual secrecy in military-funded research, the Department of Defense last week reaffirmed a Reagan-era policy that the products of fundamental scientific research should normally be unrestricted. However, the policy also said that if national security required imposing controls on such research, then formal classification was the only permissible means of doing so.

“The Department of Defense fully supports free scientific exchanges and dissemination of research results to the maximum extent possible,” wrote Under Secretary of Defense Ashton B. Carter in a May 24, 2010 memo (pdf) to the military service secretaries, first reported by Inside the Pentagon.

“I have determined that additional clarifying guidance is required to ensure the DoD will not restrict disclosure of the results of fundamental research… unless such research efforts are classified for reasons of national security,” he wrote.  It is not evident why such “additional clarifying guidance” was deemed necessary or what prompted the memo last week.

The guidance closely follows and reinforces the policy that was first enunciated in President Reagan’s National Security Decision Directive 189, and then elaborated in a 2008 DoD memorandum, which is nearly identical to the latest Carter memo.  Both documents were included as attachments to the new memo.

“NSDD 189 makes clear that the products of fundamental research are to remain unrestricted to the maximum extent possible,” Under Secretary Carter noted.  “When control is necessary for national security reasons, classification is the only appropriate mechanism.  The DoD will place no other restrictions on the conduct or reporting of unclassified fundamental research, except as otherwise required by applicable federal statutes, regulations, or executive orders.”

Moreover, he ordered, DoD program managers should actively avoid getting their research entangled in export controls or other potential restrictions on public disclosure.  “Unclassified contracted fundamental research awards should not be structured, managed or executed in such a manner that they become subject to controls under U.S. statutes and regulations, including U.S. export control laws and regulations,” Dr. Carter wrote.

“The performance of contracted fundamental research also should not be managed in a way that it becomes subject to restrictions on the involvement of foreign researchers or publication restrictions,” he added, echoing similar language from a 2008 policy memo.

A Look Back at Secrecy Reform

In 1992, the Department of Energy performed what may have been the most thoughtful and self-critical assessment of classification policy that any government agency has ever carried out.  It is now available online.

“This study represents the first fundamental review of classification policy for nuclear weapons and nuclear weapon-related information since the Atomic Energy Act became law [in 1946],” wrote George L. McFadden, then-director of the DOE Office of Security Affairs, in a transmittal letter (pdf).  It laid the foundation for the subsequent revision of specific classification practices in the 1995 Fundamental Classification Policy Review and other reforms.

The study asked basic questions — What is the purpose of classification (specifically, of nuclear weapons information)?  What is wrong with the status quo?  How can it be improved? — and then it considered various answers to these questions.  Many of the questions, and a few of the answers, are still valid today.  And the study as a whole remains impressive as a model for taking a “fresh look” at classification activity, especially at a time when the National Security Advisor is gathering recommendations for “a more fundamental transformation of the security classification system.”

The 1992 DOE study predated the world wide web, and as far as I know it has not previously been published online.  A copy is now posted on the Federation of American Scientists web site.  See “Classification Policy Study,” U.S. Department of Energy, July 4, 1992.

OSC Views Jordanian Cabinet Officials

The DNI Open Source Center recently prepared a pictorial profile of members of the Cabinet of the Hashemite Kingdom of Jordan who were appointed in December 2009 by King Abdallah II. (The bios of the Cabinet members are derived from reporting in the Jordan Times.) A copy was obtained by Secrecy News. See “Jordanian Cabinet” (pdf), Open Source Center, March 24, 2010.