Posts from November, 2010

The Race to Fix the Classification System

The massive disclosure of a quarter million diplomatic records by Wikileaks this weekend underscores the precarious state of the U.S. national security classification system.

The Wikileaks project seems to be, more than anything else, an assault on secrecy.  If Wikileaks were most concerned about whistleblowing, it would focus on revealing corruption.  If it were concerned with historical truth, it would emphasize the discovery of verifiably true facts.  If it were anti-war, it would safeguard, not disrupt, the conduct of diplomatic communications.  But instead, what Wikileaks has done is to publish a vast potpourri of records — dazzling, revelatory, true, questionable, embarrassing, or routine — whose only common feature is that they are classified or otherwise restricted.

This may be understood as a reaction to a real problem, namely the fact that by all accounts, the scope of government secrecy in the U.S. (not to mention other countries) has exceeded rational boundaries.  Disabling secrecy in the name of transparency would be a sensible goal — if it were true that all secrecy is wrong.  But if there is a legitimate role for secrecy in military operations, in intelligence gathering or in diplomatic negotiations, as seems self-evident, then a different approach is called for.

Although it has rarely been front-page news, important progress has been made this year in shifting U.S. government secrecy policy away from its cold war roots, and promoting greater discernment and discrimination in the use of national security classification.

In May, the U.S. government formally disclosed the current size of the U.S. nuclear weapons arsenal for the first time (5,113 warheads as of September 30, 2009).  Declassification of this information, which is integral to future arms control and disarmament efforts, had been sought — and resisted — for decades.  That battle for public disclosure has now been won.  Also this year, the Report of the Nuclear Posture Review, the basic statement of U.S. nuclear weapons policy, was produced and released in unclassified form for the first time.

In September, the Director of National Intelligence and the Secretary of Defense revealed the total intelligence budget ($80.1 billion in FY2010) as well as its “national” ($53.1 billion) and military ($27 billion) components.  This is a more complete and detailed disclosure of U.S. intelligence spending than has ever been provided before.  (An aggregate figure — with no further breakdown — was disclosed in 1997 and 1998.)  It also represents a major policy reversal.  Just a few years ago, intelligence community leaders swore under penalty of perjury that disclosure of this information would damage national security and compromise intelligence methods.  Now annual intelligence budget disclosure is the new norm.

These are not cosmetic changes.  They represent real discontinuities with past practice.  Stockpile secrecy and intelligence budget secrecy have each been cornerstones of entire edifices of national security classification that will now be susceptible to change.  And in each case their disclosure is the culmination and the successful fruition of years or even decades of advocacy, agitation and litigation by the Federation of American Scientists and other organizations and political leaders.

In fact, the deepest significance of these disclosures may lie in the fact that they demonstrate the feasibility of effective public advocacy in national security secrecy policy.  If a half century of nuclear stockpile secrecy and intelligence budget secrecy can be overturned in favor of public disclosure, then citizens can confidently seek the release of many other, less deeply entrenched official secrets as well as a continuing reduction in the overall scope of the secrecy system.

Of course, efforts to reduce government secrecy have not been uniformly successful.  For example, the Obama Administration’s use of the state secrets privilege to derail litigation on sensitive national security topics is indistinguishable from that of the Bush Administration, despite a September 2009 policy change promising “greater accountability” and more limited use of the privilege.  Moreover, it appears that the Obama Justice Department has failed to fulfill its own policy of referring to agency Inspectors General any legitimate cases against the government that could not be litigated because of the state secrets privilege.  (We are still attempting to confirm and to document that this is indeed the case.)  Nor has it offered any other alternative remedy to those who may have been wronged by U.S. government actions concealed by state secrets claims.

But even when the wheels of progress move slowly — or slip into reverse — proponents of greater openness are not helpless.  At Secrecy News, we have tried to shine a spotlight on the mechanics of secrecy, and to provide our own almost daily disclosures of official documents of public policy value that are somehow restricted or otherwise hard to find.  Not just because they are restricted, but because they are also of public policy value.  Over the past year, Secrecy News produced unique coverage of numerous important secrecy stories.  For example:

**  Leaking classified information may be the right thing to do in certain circumstances, suggested district court Judge T.S. Ellis III at a 2009 hearing, “but you have to stand up and take the consequences.”  We obtained and released the previously unpublished transcript of that remarkable hearing last March.  (“Judge: If You Leak Classified Info, Take the Consequences,” March 22).

**  We offered the most complete and in-depth reporting of the dispute between Congress and the executive branch over Government Accountability Office access to intelligence information.  We provided related documentation including a 1988 Office of Legal Counsel opinion and a new Department of Defense directive on GAO access to highly classified DoD special access programs.  In congressional testimony and public advocacy, we also argued in favor of an increased role for GAO in intelligence oversight.  Despite a veto threat from the White House earlier this year, a favorable resolution of the matter now seems to be within reach. (“GAO Gains a Foothold in Intelligence Oversight,” September 29).

**  We maintained and expanded our online library of reports from the JASON defense science advisory board.  Ours is the most complete public collection  of these consistently interesting and influential studies.

**  We obtained and published numerous unreleased reports from the DNI Open Source Center, such as a March 2010 report on Turkey’s mysterious underground Ergenekon movement.

**  We spent more time than we would have liked criticizing the Wikileaks organization, whose spectacular releases of large collections of classified documents continue to generate controversy.  From our perspective, Wikileaks has been inattentive to the unintended consequences of its actions, careless about putting individuals in harm’s way, particularly in the case of the Afghan war records, and ethically deficient in its invasions of personal privacy.  (In its latest release, Wikileaks did redact some names of individuals and some other sensitive information.)

**  With other like-minded organizations (and, in this case, a remarkably responsive White House), we helped prevent the creation of an ominous new information control system for so-called Controlled Unclassified Information.  Instead of constituting a fourth level of classification, the new CUI marking should simply facilitate information sharing without providing authority for any new restrictions on information. (“A New Policy on Controlled Unclassified Info,” November 4).

**  We obtained and published a previously undisclosed 2009 report from the Intelligence Science Board on the virtues of non-coercive interrogation.  We also reported that the DNI had disbanded the ISB this year.

**  We published hundreds of Congressional Research Service reports that had not previously been made available to the public, and numerous other popular records from a three-volume description of the Soviet army to the U.S. Army’s latest weapons system handbook to a speculative scientific paper on “interstellar archeology.” And quite a bit more.

It’s impossible to say whether the race to fix the classification system can be won through our kind of advocacy from the outside and by enlightened self-interest within government.  Before that happens, classification itself could be rendered moot and ineffective by leaks, abuse or internal collapse.  Or, in a reflexive response to continuing leaks, officials might seek to expand the scope of secrecy rather than focusing it narrowly, while increasing penalties for unauthorized disclosures.

But in the coming year, we see some promise in what is called the Fundamental Classification Guidance Review.  This is a procedure (mandated in executive order 13526, section 1.9) for every agency that classifies information to seek out, identify and remove classification requirements that are no longer valid.  In effect, it provides an opportunity and a mechanism for rewriting the “software” of the entire classification system.  Though success is not guaranteed, we expect the Review to produce a measurable reduction in the scope of national security classification.  We plan to monitor its progress as closely as we can.

Finally, we want to ask for your help.  If you identify with our approach and you derive value from the work that we are doing, then we encourage you to help sustain it for another year with a tax-deductible contribution.  Although we make our online resources freely available to everyone who wants them, we incur costs in collecting, analyzing, and publishing them as well as in our related advocacy activities.  If you can help us with that, please do.

Donations can be made online here (select “Government Secrecy” in the drop-down menu to allocate your donation for the FAS Project on Government Secrecy).  Donors who contribute $25 or more will automatically be enrolled as members of the Federation of American Scientists (unless you prefer not to be). Donations can also be made by sending a check made out to Federation of American Scientists and earmarked for Secrecy News to this address:

Attn: Secrecy News
Federation of American Scientists
1725 DeSales Street NW, Suite 600
Washington, DC  20036

Seeking the Rule of Law in Afghanistan

Updated below

U.S. efforts to promote the rule of law in Afghanistan are expanding and accelerating.  Nearly a billion dollars has been spent in the past decade to strengthen Afghanistan’s legal infrastructure, rising from $7 million in FY2002 to an estimated $411 million in FY2010.  In July 2010, a new Ambassador-rank position was created to focus on justice-related issues in the country.  Yet the effectiveness and even the feasibility of these efforts to establish the rule of law are in doubt.

A new report (pdf) from the Congressional Research Service provides a detailed overview of the U.S. approach to rule of law (ROL) issues in Afghanistan.  It describes the numerous and diverse initiatives that have been undertaken, the political, cultural and institutional obstacles that confront them, and their uncertain results.

The rule of law in this context simply means the stable, predictable, and fair application of public legal standards.  It is considered essential to the establishment of a legitimate and effective government.  “Without ROL the country cannot progress no matter what contributions are made by outsiders,” according to a 2008 State Department Inspector General report.

But progress towards a state of rule of law in Afghanistan is stymied both by the general instability in the country and by the pervasive corruption that prevails.  “As many as one out of every two Afghans experienced bribery in the past year,” the CRS noted, based on UN data, “resulting in an estimated $2.5 billion in bribe payments in 2009 alone.”  The average bribe was said to be around $160, and those who paid bribes did so three to five times per year.

The U.S. has a “Strategy for Rule of Law in Afghanistan” but it is “not available publicly,” the CRS said.  A summary of its contents was provided in the CRS report, based on State Department information.  For the first time this year, rule of law issues in Afghanistan constitute a separate portfolio under the new position of the Coordinating Director of ROL and Law Enforcement, held by Ambassador Hans Klemm.

“Although significant progress in establishing ROL in Afghanistan has been achieved, there appear to be several fundamental limitations on the ability of the U.S. government and other donors to strengthen the Afghan justice sector in the short term,” the CRS report concluded.  Besides the instability of war and widespread corruption, other obstacles include illiteracy and the lack of qualified personnel to serve in law enforcement and the judiciary;  local reliance on traditional councils that do not always practice a consistent or egalitarian form of law;  and “existing perceptions among many Afghans that high-level corrupt officials are exempt from the full force of Afghan law.”

Afghan officials themselves have observed that “despite increasing resources devoted to justice sector support, efforts have not yet translated into a functional formal justice system in Afghanistan.”

“The 112th Congress may choose to address these long term issues in the context of the Obama Administration’s review of U.S. strategy in Afghanistan,” the CRS suggested.

A copy of the new CRS report was obtained by Secrecy News.  See “Afghanistan: U.S. Rule of Law and Justice Sector Assistance,” November 9, 2010.

Update: “Despite some efforts by the Government of Afghanistan to eliminate corruption and improve rule of law, overwhelming reports of corruption continue,” a new report to Congress (pdf) from the Department of Defense said.

“The latest survey of Afghan perceptions of the Afghan Government’s rule of law capacity shows an almost 7 percent decline in Afghans’ confidence in their government’s ability to deliver reliable formal justice. This is likely due to continued corruption and to the slow progress in hiring and placing justice professionals at the provincial level. Additional polling shows that fewer than half of Afghans polled trust the Afghan Government to settle a legal dispute,” the November 2010 DoD report to Congress said.

The Evolution of American Military Intelligence (1973)

An unclassified U.S. Army history of military intelligence that was formerly used as a textbook in officer training at the Army Intelligence Center at Fort Huachuca is now publicly available online (large pdf).

The 1973 volume has been superseded in many or even most respects by subsequent research and publication. But it retains some interest as a snapshot of the contemporary self-understanding and presentation of military intelligence. “It remains one of the best overviews of the history of Army Intelligence, although it is dated,” one admirer of the document told Secrecy News.

According to the Preface, “This history concentrates on intelligence support to tactical forces since, in truth, this is where military intelligence, per se, receives its greatest visibility and its greatest importance.”

See “The Evolution of American Military Intelligence” by Marc B. Powe and Edward Wilson, U.S. Army Intelligence Center and School, Fort Huachuca, AZ, May 1973.

US-Saudi Arms Deal Defended by Gates, Clinton

A $60 billion arms sale to Saudi Arabia — the largest in U.S. history — is poised to proceed despite questions raised by some members of Congress. In a November 16 letter to Congress (pdf), Secretary of Defense Robert Gates and Secretary of State Hillary Clinton defended the deal:

“This proposed sale will directly support U.S. interests by reinforcing our longstanding defense and security partnership with Saudi Arabia, enhancing Saudi Arabia’s ability to deter and defend itself against terrorist groups and other regional threats, improving interoperability with the U.S. military, and sending a strong message to all countries that the United States is committed to supporting the security of its key partners and allies in the Gulf and broader Middle East,” they wrote.

Members of Congress had written to the Administration on November 12 (pdf) “to raise concerns and pose a number of strategic questions about the impact such sales would have on the national security interests of the United States and our allies.” The Gates-Clinton letter was written in response.

Do Corporations Have Personal Privacy Rights?

The Supreme Court will decide next year whether corporations are entitled to “personal privacy” and whether they may prevent the release of records under the Freedom of Information Act on that basis.  FOIA advocates say that assigning personal privacy rights to corporations could deal a crippling blow to the Act.

The case before the Court — known as FCC v. AT&T — arose from a FOIA request to the Federal Communications Commission for records of an investigation of a government contract held by AT&T.  The FCC found that the requested records were subject to release under FOIA.  But AT&T challenged that decision and won an appeals court ruling that the documents were law enforcement records that were exempt from disclosure because their release would constitute “an unwarranted invasion of personal privacy” — namely, the “personal privacy” of AT&T.

The appeals court noted that the word “person” is defined in the Administrative Procedures Act (APA) to include corporations, and it went on to infer from this that the FOIA exemption for “personal privacy” in law enforcement records must logically extend to corporations as well.

But “that analysis does not withstand scrutiny,” the government argued in its petition (pdf) to the Supreme Court for review of the case.  Personal privacy can only apply to individual human beings, it said, and not to other entities.  “The court of appeals’ novel construction would erroneously create a new and amorphous ‘privacy’ right not only for corporations but also for local, state, and foreign governments [which also fall under the APA definition of 'person'].”

A concise description of the pending case as well as key case files and amicus briefs filed with the Supreme Court by several FOIA advocacy organizations are conveniently available from the Electronic Privacy Information Center.  (EPIC prepared one of the amicus briefs and I was among the signatories to it.)

Corporate information that qualifies as a “trade secret” has long been exempt from disclosure under the FOIA.  But prior to this case, no court had ever held that a corporation also has personal privacy rights.

If affirmed by the Supreme Court, the appeals court ruling “could vastly expand the rights of corporations to shield their activities from public view,” said Sen. Patrick Leahy this week, and it “would close a vital window into how our government works.”

“Congress never intended for this [personal privacy] exemption to apply to corporations,” he said.  “I also fear that extending this exemption to corporations would permit corporations to shield from public view critical information about public health and safety, environmental dangers, and financial misconduct, among other things — to the great detriment of the people’s right to know and to our democracy.”

“I sincerely hope that our nation’s highest Court… will narrowly construe the personal privacy exemption, consistent with congressional intent,” said Sen. Leahy. “Should the Court decide to do otherwise, I will work with others in the Congress to ensure that FOIA, and specifically the personal privacy exemption for law enforcement records, remains a meaningful safeguard for the American people’s right to know,” he said.

FCC v. AT&T is scheduled to be argued before the U.S. Supreme Court on January 19, 2011.

Intelligence Issues in Congress

Director of National Intelligence James R. Clapper went a little out of his way to praise the Government Accountability Office at a Senate hearing on security clearance reform on November 16. “I’d be remiss if I didn’t recognize the crucial role that GAO continues to play in keeping the heat on the executive branch for security clearance reform and, also, on areas they have identified where more work is required,” DNI Clapper told a subcommittee hearing chaired by Senator Daniel Akaka.

As required by the FY2010 intelligence authorization act, the DNI is preparing a directive to authorize and regulate GAO access to intelligence information, a step that should portend an increased role for GAO in intelligence oversight. In the future, GAO access to intelligence “will be similar to the GAO’s access to the Department of Defense’s Special Access Programs,” suggested Sen. Rockefeller.

In pursuing a new cybersecurity agenda, “the government must be as transparent as possible with the American people,” said Sen. Sheldon Whitehouse yesterday. “I doubt very much that the Obama administration would abuse new authorities in cyberspace to violate Americans’ civil liberties. But on principle, I firmly and strongly believe that maximum transparency to the public and rigorous congressional oversight are essential. We have to go about this right.”

Retiring Senate Intelligence Committee Vice Chairman Christopher Bond offered his valedictory thoughts on intelligence policy on the Senate floor yesterday, launching darts in multiple directions.  Among other recommendations, he called for an increased number of prosecutions to combat leaks.

“We must first deter and neutralize the leakers. There should be significant criminal, civil, and administrative sanctions that can be imposed on leakers. Leakers should face significant jail time, pay heavy fines, forfeit any profits, lose their pensions, and be fired from their jobs. We should also not allow the first amendment to be used as a shield for criminal activity. It should be a crime to knowingly solicit a person to reveal classified information for an unauthorized purpose or to knowingly publish or possess such information. Leaks will not stop until a significant number of leakers have been appropriately punished,” Sen. Bond said.

Technically, any alert reader of national newspapers “possesses” classified information and would therefore be criminally liable under Senator Bond’s rash formulation.

The Sonnenberg Phenomenon

Investment banker Maurice Sonnenberg was appointed this week to the National Commission for the Review of the Research and Development Programs of the U.S. Intelligence Community.  The most surprising thing about the appointment was its predictability.

If national commissions on intelligence were a TV game show, Maurice Sonnenberg would be Kitty Carlisle or Orson Bean.  In other words, he is a perennial member of a seemingly endless series of blue-ribbon panels, task forces and commissions.

He was senior adviser to the 1996 Commission on the Roles and Capabilities of the U.S. Intelligence Community (the Aspin-Brown Commission), a member of the 1997 Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission), the Vice Chairman of the 2000 National Commission on Terrorism (the Bremer Commission), and an original member of the 2003 National Commission for the Review of the Research and Development Programs of the U.S. Intelligence Community, which lapsed in 2004. The latter Commission has recently been revived, and Mr. Sonnenberg’s reappointment to it is what was announced this week.  He also previously served on the President’s Foreign Intelligence Advisory Board during the Clinton Administration.

Mr. Sonnenberg accepts his role with grace.  “I’m quite content that people ask me for my views,” he told the New York Sun in 2005. “But does that elevate me to the pantheon of great thinkers? I doubt it. My hat size hasn’t changed. If I take a bus, it still costs me $2 a ride.”

“It’s sometimes helpful to talk to people who’re at the levers of power,” he admitted. “Perhaps that way one has enjoyed some influence on policy.”

The new National Commission was restored by Congress to perform a “review of the full range of current research and development programs within the responsibility of the Intelligence Community with the goal of ensuring a unified research and development program across the entire Community.”

Books Received

“Litigation Under the Federal Open Government Laws 2010″ is the latest edition of a classic handbook for Freedom of Information Act litigants.  It provides an updated summary of the relevant case law and a discussion of many of the most commonly encountered issues and obstacles a FOIA litigator may face.  Any FOIA requester or attorney who is contemplating a FOIA lawsuit will want to study it closely. The new edition was edited by Harry A. Hammitt, Ginger McCall, Marc Rotenberg, John A. Verdi, and Mark S. Zaid.

“These Guys: Cold War Stories told by Cold War Warriors” is an anthology of personal reminiscences from former members of the U.S. Air Force Security Service concerning their experiences in U.S. military and intelligence service.  It was edited by Trish Schiesser.

“The Dangers of Dissent” by Ivan Greenberg explores the modern history of FBI domestic surveillance, bolstered by records obtained by the author through FOIA litigation. The book “traces the evolution of FBI spying from 1965 to the present through the eyes of those under investigation.”

Better Oversight Due on Unclassified Control Markings

The use of access control markings such as the Transportation Security Agency’s “Sensitive Security Information” (SSI) to limit disclosure of unclassified records has been criticized from time to time as arbitrary and self-serving.  But now, due to a subtle change in the recent executive order on “Controlled Unclassified Information,” SSI and other such markings should receive new oversight and scrutiny.

In a preliminary draft (pdf) of the new executive order 13556 on Controlled Unclassified Information (at section 1.3b), four existing control markings were “grandfathered” into the new CUI system — Sensitive Security Information, Critical Infrastructure Information, Chemical Vulnerability Information, and Safeguards Information.  This means that they were presumptively approved for future use without any further review.

But in the final draft of the executive order approved by the President on November 4, that provision and those presumptive approvals were withdrawn.  Consequently, SSI and the other control markings will have to go through the same external review and approval process as other controls on unclassified information in order to qualify as CUI.

SSI and several other unclassified control categories are authorized in statute, so they cannot be categorically eliminated or disapproved by the CUI Executive Agent.  But what the CUI review process can do is to help ensure that what agencies claim is SSI really does fall into that category.

This became a live issue recently when the Transportation Security Administration moved to seal a lawsuit brought by a former TSA air marshal by claiming that the names of officials who disciplined and removed the air marshal are themselves SSI.  To outside observers, this appeared to be an abuse of the SSI control marking to gain tactical advantage in the lawsuit.  See “Why Is the TSA Keeping Air Marshal Employment Disputes Under a Veil of Secrecy?” by Nick Schwellenbach, Project on Government Oversight (POGO), November 2, 2010.

Eliminating the a priori approval of SSI markings from the CUI system should mean more scrupulous use of such markings, according to a government official involved in drafting the new executive order. “Treating them as any other allows oversight…to at least try to avoid the sort of alleged absurd decisions highlighted by POGO,” the official said.