Posts from August, 2010

Who is an Intelligence Employee?

Could someone be considered an intelligence community employee even if his salary is not paid out of the intelligence budget?  Intelligence officials say yes, claiming that a person’s status as an intelligence employee can be based on an “assessment of the functions [he] performs.”  This novel approach conveniently allows agencies to curtail oversight of such employees’ activities.

In a letter sent to the Government Accountability Office last year, the Federal Bureau of Investigation articulated its position that the GAO is generally not entitled to review intelligence community information and, in particular, that the GAO would not be granted access to information about vacancies in the FBI counterterrorism program that could be considered intelligence jobs.

“The FBI will provide the GAO with information about FBI-wide vacancies for all ‘position types’ except those that are defined as being under the combined or shared authority of the Bureau and the Office of the Director of National Intelligence (ODNI),” wrote FBI General Counsel Valerie Caproni on July 28, 2009.  A copy of her letter (pdf) was obtained by Secrecy News.

But in a remarkable concluding passage, Ms. Caproni went on to argue that the “definition” of who is an intelligence employee is itself subject to interpretation:

“[T]he determination of whether an employee works in the Intelligence Community turns not only on the funding mechanism for their positions but on an assessment of the functions the employee performs,” she wrote.

Thus it seems that regardless of whether or not an intelligence agency pays someone’s salary, the Administration believes it can label that person an intelligence employee and then deny the GAO access to information about his or her position.

The U.S. Senate has yielded to the Obama Administration’s pressure to block congressional use of the GAO as an intelligence oversight tool, and it removed a provision to strengthen GAO oversight authority from the FY 2010 intelligence authorization bill that passed the Senate on August 5.  But the question of GAO oversight of intelligence remains a live, unresolved issue in the House.

Wikileaks: Giving Leaks a Bad Name

Unauthorized disclosures of classified information (“leaks”) often play an important role in the proper functioning of American democracy.  They can serve as a safety valve against official excess, and an implicit check against government misconduct.  Even the mere possibility of a leak can have a salutary effect, because it imposes conscious or subconscious limits on what officials might try to do if they were certain they would be undetected.  (The FAS Project on Government Secrecy began in 1991 with our unauthorized receipt and disclosure of records on a problematic unacknowledged special access program called Timber Wind (pdf) whose very existence was classified.)

But though many government records are wrongly kept secret, the anti-secrecy website Wikileaks managed to get its hands on some documents on the Afghanistan War that were properly classified, at least in part — since they included the unredacted names of Afghan intelligence sources and collaborators — and then to release them (while temporarily withholding others for closer review).

One initial response to Wikileaks’ clumsy disclosure has been to bolster public support of the classification system, which was presumably not the intended result.  Sixty-seven percent of respondents polled endorsed the view that “When media outlets release secret government documents relating to the War in Afghanistan [they are] hurting national security,” according to a July 30-31 poll conducted by Rasmussen Reports.

Rep. Rush Holt (D-NJ), who has been a persistent critic of overclassification — and who voted to oppose supplemental funding for the war in Afghanistan — last week joined the chorus of critics who have spoken out against Wikileaks’ indiscriminate disclosure practices.

“Before rushing to judgment about this very large, unauthorized disclosure of information, I wanted to review some of the documents myself to determine if indeed potential human sources of information had been compromised,” Rep. Holt said in a statement in the August 10 Congressional Record.  “After reviewing some of these documents, I have concluded that their release could indeed cause real harm to real people.”

Daniel Ellsberg, the archetypal modern leaker of classified information who was responsible for the unauthorized disclosure of the Top Secret Pentagon Papers in 1971, nevertheless withheld from public disclosure four volumes of the 47-volume Papers which dealt with diplomatic negotiations because he judged them to be too sensitive for release at that time (as noted by John Prados and Margaret Pratt Porter in “Inside the Pentagon Papers,” p. 10).  The four withheld volumes were not released in full until 2002.  Regrettably, Wikileaks has failed to demonstrate similar discernment in handling classified records, and it will be up to others to try to repair the damage it has caused.

Huge Commercial Satellite Imagery Contracts Awarded

The National Geospatial-Intelligence Agency (NGA) has awarded two large contracts for commercial satellite imagery to meet U.S. intelligence community needs. DigitalGlobe received a contract worth $3.5 billion and GeoEye received another worth $3.8 billion over ten years, according to an August 6 news release (pdf) from NGA.  The contracts “will help meet the increasing geospatial intelligence needs of the Intelligence Community and Department of Defense,” NGA said.

“This is such good news for the commercial satellite imagery industry,” said Mark Brender of GeoEye.  “Our government is really moving to ‘outsource overhead’,” he said.

ODNI Advisors on Bio Sciences Keep Low Profile

A few years ago the Office of the Director of National Intelligence established a “Biological Sciences Experts Group” consisting of scientists from industry and academia to advise the intelligence community on the threat of biological weapons proliferation and related matters.  But not a single fact concerning the Group’s actions or accomplishments can be publicly disclosed, the ODNI said last week in response (pdf) to a Freedom of Information Act request.

As is often the case, a bit more about the Group can be learned through unofficial channels, as previously reported in Secrecy News (“Experts Advise IC on Classified Biosecurity Activities,” April 13, 2010).

Reviews of Foreign Investment in U.S. Remain “Obscure”

“The Committee on Foreign Investment in the United States (CFIUS) is an interagency committee that serves the President in overseeing the national security implications of foreign investment in the economy,” the Congressional Research Service has explained (pdf).  “Originally established by an Executive Order of President Ford in 1975, the committee generally has operated in relative obscurity.”

That relative obscurity continues to prevail.  A new Department of Defense Instruction says that “The DoD CFIUS process should, to the extent possible, be a transparent process.”  Yet the same Instruction dictates that “Information or documentary material filed with CFIUS shall be exempt from disclosure [under the Freedom of Information Act] and will not be made public.”  See “DoD Procedures for Reviewing and Monitoring Transactions Filed with the Committee on Foreign Investment in the United States (CFIUS),” DoD Instruction 2000.25 (pdf), August 5, 2010.

Two informative background reports on CFIUS were recently updated by the Congressional Research Service (both pdf).  See “The Committee on Foreign Investment in the United States (CFIUS),” July 29, 2010, and “The Exon-Florio National Security Test for Foreign Investment,” July 19, 2010.

GAO Access to Intel Obstructed by 1988 OLC Opinion

The current dispute between the Obama Administration and some members of Congress over whether to strengthen oversight of intelligence programs by the Government Accountability Office is rooted in a 1988 opinion from the Justice Department Office of Legal Counsel (OLC), which held that GAO access to intelligence information is actually barred by law.

In 1988, the GAO requested access to intelligence files concerning Panama as part of an investigation of U.S. policy towards Panamanian leader Manuel Noriega.  In response to an inquiry from the National Security Council, the Office of Legal Counsel issued an opinion (pdf) stating that the GAO was not entitled to the requested records on Panama and Noriega.  Not only that, but the opinion (written by Acting OLC head Douglas W. Kmiec) concluded categorically that “GAO is precluded by the Intelligence Oversight Act from access to intelligence information.”

Today, the FBI cites that 1988 opinion to justify its refusal to permit GAO to perform a review of the FBI counterterrorism program and other matters previously studied by GAO.

The 1988 OLC opinion “has had a broad negative impact on our access to information at the FBI and several other agencies that are part of the intelligence community,” wrote Acting Comptroller General Gene L. Dodaro in a recent letter (pdf).  “Moreover, we are concerned that this position is now being extended to cover agencies and activities that have long been subject to GAO oversight, such as human capital practices and vacancies within the FBI’s Counterterrorism Division.”

Mr. Dodaro’s June 15, 2010 letter regarding GAO access to government information was sent to Senators Charles Grassley and Richard Shelby.  A copy was obtained by Secrecy News.

The OLC opinion that GAO’s access to intelligence information is “precluded” by law seems demonstrably wrong and in any case has been overtaken by events.  A Department of Defense Instruction (7650.01) explicitly permits GAO access to DoD intelligence information.  Do the Justice Department and the FBI believe that this DoD Instruction violates the law?  And if the law prohibits GAO access to intelligence information, why have dozens of GAO analysts (73 of them as of March 2008) been granted SCI security clearances that authorize such access?

“The [OLC's] basic legal premise — that GAO lacks legal authority to review intelligence matters — is simply wrong,” one congressional official told Secrecy News.  “To make matters more interesting, the 1988 OLC opinion is based on an old, and in my opinion misguided, GAO effort to get raw intelligence related to the Noriega mess.  How it applies to GAO’s current efforts to conduct a human capital review at FBI is baffling.”

“The fact that the Obama Administration is trying to block GAO from doing essentially the same work it did under the Bush Administration is a stunning turn of events that no one expected,” the official said.

Ethics Office Puts Limits on CIA Lobbying (2006)

For one year following their employment, all former government employees are prohibited by law (18 U.S.C. 207c) from contacting employees of their former agency for the purpose of influencing their official actions.

A 2006 legal opinion (pdf) from the Office of Government Ethics (OGE) said this means that former CIA employees cannot contact current CIA employees for purposes of seeking official action, even if those current CIA employees are detailed to another federal agency.  Prior to the OGE opinion, the CIA had disputed that the law extended to contacts with CIA detailees at other agencies.

“One certainly could envision circumstances in which a former senior CIA employee might have the opportunity to use his or her former position to influence a current CIA employee on detail to another agency in the Intelligence Community,” wrote OGE General Counsel Marilyn L. Glynn in her opinion prohibiting such contacts.

The OGE legal opinion was written in response to a request Steven Bradbury of the Justice Department Office of Legal Counsel.  The circumstances that prompted the inquiry are not known, nor is it known if the OLC itself issued any further guidance on the subject.  The 2006 OGE opinion was released last month under the Freedom of Information Act.

Report Sees Successes and Gaps in Info Sharing

“Several events this past year — the Fort Hood Shooting and the attempted bombings on Christmas Day and in Times Square — highlight challenges, successes, and gaps in our ability to effectively share and access information,” wrote Kshemendra N. Paul, the program manager of the ODNI Information Sharing Environment (ISE) in a new annual report to Congress (pdf) on the current state of intelligence and threat information sharing.

“Looking back to the events of September 11, 2001, we have come far in our sharing of and access to information across boundaries organizational boundaries and mission domains. Yet much remains to be done to support the frontline,” Mr. Paul wrote.

The information sharing initiative is focused on overcoming barriers to communication within the government, not on public disclosure.  But sharing ought to include the public too, the report suggested at one point.

“Most of the work of building the ISE to date has been aimed at expanding information sharing across all areas of government in the U.S. and, to a lesser extent, with private sector organizations and foreign partners. As the ISE continues to evolve, however, we recognize that to support the Administration’s commitment to openness and transparency, we must extend those efforts to include the American public as well,” the new annual report to Congress said (p. 57).

Leak Cases Move Forward

The Obama Administration’s aggressive pursuit of leakers who disclose classified information to the press or to other unauthorized persons is moving forward on multiple fronts.

Shamai Leibowitz, a former FBI linguist who pleaded guilty to the unauthorized disclosure of classified intelligence information to an unidentified blogger, reported to prison this week, his attorney said (pdf).  Leibowitz has begun serving a twenty-month sentence at the Federal Correctional Institution (FCI) – Low in Petersburg, Virginia.

Thomas Drake, a former National Security Agency official who is suspected of having disclosed classified information to a reporter, pleaded not guilty to the charges against him.  Last week a jury trial in his case was scheduled (pdf) to begin on March 21, 2011.

Last Sunday, Defense Secretary Robert Gates told ABC News that Wikileaks was “morally culpable” because its massive disclosure of classified Afghanistan war records may have placed at risk individual Afghans who were named in the documents.  “That’s where I think the verdict is guilty on WikiLeaks. They have put this out without any regard whatsoever for the consequences.”

Wikileaks spokesman Daniel Schmitt said there were too many classified documents in the leaked collection to permit a careful review of all of them.

“Asked why WikiLeaks did not review all of the Afghan war logs before releasing them last month to make sure that no Afghan informants or other innocent people were identified, Schmitt said that the volume of the material made it impossible,” according to an August 3 report by Philip Shenon in the Daily Beast.  Mr. Schmitt said that Wikileaks welcomed Pentagon assistance in processing other leaked records for release.

I offered some comments on the Wikileaks case on NPR’s “On the Media” show last week.

Extrajudicial Targeting of Americans Challenged

Two civil liberties organizations said they will file a legal challenge against the government’s suspected targeting for assassination of an American supporter of Al Qaeda, arguing that under the U.S. Constitution no citizen can be “deprived of life… without due process of law.”

The American Civil Liberties Union and the Center for Constitutional Rights first filed suit against the Treasury Department, which said they needed a “license” in order to act on behalf of Anwar al-Awlaki, who has been designated as a terrorist.  After the lawsuit was filed yesterday, the Treasury Department said the license to proceed would be granted.

Meanwhile, Rep. Dennis Kucinich and several House colleagues introduced legislation last week “to prohibit the extrajudicial killing of United States citizens.”

“No United States citizen, regardless of location, can be ‘deprived of life, liberty, property, without due process of law’, as stated in Article XIV of the Constitution,” their bill said. [The cited statement is actually from the Fifth Amendment to the Constitution.]

White House spokesman Robert Gibbs said yesterday that the targeting of al-Awlaki was not done entirely without process.  “There’s a process in place that I’m not at liberty to discuss,” he said.

“If… we think that direct action [against terrorists] will involve killing an American, we get specific permission to do that,” then-DNI Dennis C. Blair told a House Intelligence Committee hearing (pdf) on February 3, 2010.

But the Kucinich bill said that “No one, including the President, may instruct a person acting within the scope of employment with the United States Government or an agent acting on behalf of the United States Government to engage in, or conspire to engage in, the extrajudicial killing of a United States citizen.”