Posts from February, 2011

Senate Bill Would Make Leaks a Felony

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information.  The bill (S. 355) sponsored by Sen. Benjamin Cardin (D-MD) would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement.

Under existing law, criminal penalties apply only to the unauthorized disclosure of a handful of specified categories of classified information (in non-espionage cases).  These categories include codes, cryptography, communications intelligence, identities of covert agents, and nuclear weapons design information.  The new bill would amend the espionage statutes to extend such penalties to the unauthorized disclosure of any classified information.

(Another pending bill, known as the SHIELD Act, would specifically criminalize disclosure — and publication — of information concerning human intelligence activities and source identities. Both bills were originally introduced at the end of the last Congress, and were reintroduced this month.)

“I am convinced that changes in technology and society, combined with statutory and judicial changes to the law, have rendered some aspects of our espionage laws less effective than they need to be to protect the national security,” said Sen. Cardin.  “I also believe that we need to enhance our ability to prosecute… those who make unauthorized disclosures of classified information.”

“We don’t need an Official State Secrets Act, and we must be careful not to chill protected First Amendment activities,” he said.  “We do, however, need to do a better job of preventing unauthorized disclosures of classified information that can harm the United States, and at the same time we need to ensure that public debates continue to take place on important national security and foreign policy issues.”

The bill would replace the Espionage Act’s use of the term “national defense information” with the broader but more precise term “national security information.”  It would outlaw any knowing violation of an employee’s classified information nondisclosure agreement, “irrespective of whether [the discloser] intended to aid a foreign nation or harm the United States.”  The bill would not criminalize the receipt of leaked information, and it would not apply to whistleblowers who disclose classified information through authorized channels.

But it would establish a rebuttable presumption that any information marked as classified is properly classified.  (The bill does not distinguish between “information” and “records.”)  This means that the government would not have to prove that the leaked information was properly classified;  the defendant would have to prove it was not. In order to mount a defense arguing “improper classification,” a defendant would have to present “clear and convincing evidence” that the original classifier could not have identified or described damage to national security resulting from unauthorized disclosure.  Such challenges to original classification are almost never upheld, and so the defendant’s burden of proof would be nearly impossible to meet.

The bill does not provide for a “public interest” defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.  It does not address the issue of overclassification, nor does it admit the possibility of “good” leaks.  Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.

And at a time when an unprecedented number of leak prosecutions are underway, the bill’s premise that an enhanced ability to prosecute leaks is needed seems questionable.  In fact, in a 2002 report to Congress, then-Attorney General John Ashcroft said that the laws already on the books were sufficient and that no new anti-leak legislation was required.

“Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified…. Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time,” Mr. Ashcroft wrote.

In 2000, Congress enacted legislation to criminalize all leaks of classified information, but the measure was vetoed by President Clinton.

“There is a serious risk that this legislation would tend to have a chilling effect on those who engage in legitimate activities,” President Clinton wrote in his November 4, 2000 veto message.  “A desire to avoid the risk that their good faith choice of words — their exercise of judgment — could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues.”

“Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect,” President Clinton wrote.

Natural Gas, and More from CRS

New reports from the Congressional Research Service on natural gas and miscellaneous other topics include the following (all pdf).

“Implication’s of Egypt’s Turmoil on Global Oil and Natural Gas Supply,” February 11, 2011.

“Israel’s Offshore Natural Gas Discoveries Enhance Its Economic and Energy Outlook,” January 31, 2011.

“Global Natural Gas: A Growing Resource,” December 22, 2010.

“The Army’s Ground Combat Vehicle (GCV) and Early Infantry Brigade Combat Team (E-IBCT) Programs,” January 18, 2011.

“Cuba: Issues for the 112th Congress,” January 28, 2011.

“Mexico’s Drug Trafficking Organizations: Source and Scope of the Rising Violence,” January 7, 2011.

“Is Biopower Carbon Neutral?,” January 25, 2011.

“Violence Against Members of Congress and Their Staff: Selected Examples and Congressional Responses,” January 25, 2011.

“The Obama Administration’s Feed the Future Initiative,” January 10, 2011.

A New Milestone in Intelligence Budget Disclosure

The Director of National Intelligence on Monday did what has never been done before:  He disclosed the size of the coming year’s budget request for the National Intelligence Program.  For Fiscal Year 2012, “The aggregate amount of appropriations requested for the National Intelligence Program is $55 billion,” according to a February 14 ODNI news release (pdf).

The new disclosure was required by the FY2010 intelligence authorization act (sec. 364).  That legislation permitted an optional Presidential waiver of disclosure if necessary on national security grounds, but no waiver was asserted.

The disclosure of the budget request constitutes a new milestone in the “normalization” of intelligence budgeting. It sets the stage for a direct appropriation of intelligence funds, to replace the deliberately misleading practice of concealing intelligence funds within the defense budget.  Doing so would also enable the Pentagon to (accurately) report a smaller total budget figure, a congenial prospect in tight budget times.  (See “Intelligence Budget Disclosure: What Comes Next?”, Secrecy News, November 1, 2010.)

The publication of the intelligence budget request is the culmination of many years of contentious debate and litigation on the subject.

Until quite recently, intelligence community leaders firmly opposed disclosure both of the intelligence budget total and of the total budget request.  In response to a 1999 lawsuit brought by the Federation of American Scientists, Director of Central Intelligence George J. Tenet said that revealing the budget request would damage national security and compromise intelligence methods.

“I have determined that disclosure of the budget request or the total appropriation reasonably could be expected to provide foreign intelligence services with a valuable benchmark for identifying and frustrating United States’ intelligence programs,” DCI Tenet wrote in a sworn declaration.  The court upheld the classification of the requested information.

Was DCI Tenet wrong then about the damaging effects of disclosure?  Is DNI Clapper wrong now to dismiss the significance of such damage?  Could they somehow both be right?

From our perspective, Mr. Tenet was wrong in 1999, and the damage he foresaw would not have resulted from the disclosure that he prevented. (It turns out that the FOIA litigation process is not an effective way to contest such judgments.)

More fundamentally, the changing official assessment of the need to classify this information reflects the subjectivity that is inherent in the classification process, which makes it possible for two intelligence community leaders to reach opposing conclusions.

The same subjectivity prevails today.  Thus, while the budget request for the National Intelligence Program (NIP) has now been disclosed, the request for the Military Intelligence Program (MIP) remains classified.  We have requested release of this information.

The $55 billion requested for the NIP in FY 2012 represents a slight increase over the $53.1 billion appropriated for the NIP in FY 2010.  The FY 2011 NIP appropriation has not yet been published.  It is supposed to be disclosed at the end of the current fiscal year.

State Secrets Case Said to Conceal Environmental Damage

The Central Intelligence Agency invoked the state secrets privilege in 2004 to cover up a case of environmental contamination at a CIA facility that caused illnesses to an Agency employee and his family, according to the employee, Kevin Shipp.

The episode was revealed in the Washington Post and the New York Times on February 11 after Mr. Shipp decided to go public with his account of the sealed case.

The story was elaborated yesterday in the Washington Post with the disclosure that the CIA also failed to respond to inquiries from Mr. Shipp’s congressman, Rep. Frank Wolf, and that the congressional intelligence committees refused to respond to Mr. Shipp at all.  See “Intelligence panels ignored CIA officer’s pleas” by Jeff Stein, February 14.

By invoking the state secrets privilege, the government denied Mr. Shipp the basic right to argue his case and to seek a remedy.  Although the Obama Administration’s September 2009 policy on state secrets held out the promise that “credible allegations of government wrongdoing” in state secrets cases facing dismissal would be referred to agency Inspectors General, there is no record of any such referral by the Obama Administration or its predecessor.

Having been refused access to judicial review of his claims and with no response from congressional overseers, Mr. Shipp evidently chose to violate the court order sealing his case and the classification controls restricting its disclosure.  He did not “leak” the information anonymously.  Instead, he publicly revealed at least the outlines of his case.  He may now pay an additional price for these violations.  But he may also have reckoned that the state secrets privilege has no force in the court of public opinion.

Declassifying the Pentagon Papers, Finally

The National Declassification Center (NDC) at the National Archives will declassify the full text of the Pentagon Papers as well as the underlying documentation on which they are based, along with investigative material concerning the 1971 leak of the Papers by Daniel Ellsberg, the NDC said yesterday.

“One matter to keep in mind concerning the Pentagon Papers is that there is no complete record of the report in the public domain,” the NDC blog said.

The Pentagon Papers Project “is both an interagency and intra-agency effort.  NARA is working closely with its partners in the intelligence and defense communities, and the Department of Justice to ensure that we make available as much of this historical collection as possible.”

But one wonders why a “project,” complete with inter- and intra-agency coordination, is necessary at all to process defense policy records that were mostly made public 40 years ago.  A better use of public resources would be to wave a wand and simply declare the records open.

CIA Reports No Progress in Classification Review

The Central Intelligence Agency has taken no action to carry out the Fundamental Classification Guidance Review, a mandatory effort to eliminate obsolete or unnecessary classification practices.

The Fundamental Review is a systematic attempt to combat overclassification by subjecting thousands of current classification instructions to critical scrutiny and revision.  It was required in President Obama’s December 2009 executive order 13526 (section 1.9), which came into effect in June 2010.  “These reviews can be extremely important in changing the habits and the practices of classifiers throughout government,” said William H. Leary of the National Security Staff last year.  But that will be true only if the required reviews are actually implemented.

In response to a Freedom of Information Act request for CIA records on its implementation of the review process thus far, CIA reported last week (pdf) that “We did not locate any records responsive to your request.”

This does not necessarily imply that the CIA is being insubordinate or that the Fundamental Review will not eventually be performed there, an Administration official said, noting that agencies were given two years — until June 2012 — to complete the Review process.  The CIA’s latest statement “means only that they have not done anything to date,” the official said.  “There are  a ton of things that agencies have to do that did not come with a two-year implementation window.”

Nevertheless, it is not very encouraging to see that the CIA, which is one of the government’s most prolific classifiers, evidently does not consider the Fundamental Review to be a matter of urgency and a high priority.  Its lethargy is in contrast with the energetic response of the Department of Energy, which developed a detailed workplan last November to implement the Review.  (See “A Bumpy Start for Fundamental Classification Review,” Secrecy News, January 18, 2011.)  The Department of Homeland Security began its Fundamental Review even earlier, in July, according to internal DHS correspondence (pdf) also released under FOIA.

Reducing government reliance on secrecy is an appropriate response to current technological and political realities, according to a report released by the American Bar Association (ABA) Standing Committee on Law and National Security (“No More Secrets: National Security Strategies for a Transparent World,” January 2011).  It would also reduce the nation’s growing susceptibility to unauthorized disclosures, and would therefore enhance national security.  “The report recommends that the government operate with fewer secrets to gain a significant advantage over those who ‘continue to cling to traditional notions of indefinite information monopoly’.”

The ABA report did not present an actionable plan that agencies could adopt to reduce the number of national security secrets they keep.  But that is what the Fundamental Classification Guidance Review was intended to provide.  The Review’s success — or its failure — will determine, for better or worse, the feasibility of reversing the growth of national security secrecy.

I made a pitch for rigorous implementation of the Fundamental Classification Guidance Review in the current issue of Nature Medicine.  See “Review of classification rules represents an opportunity, even for medicine,” February 2011 (sub. req’d).  See also “ISOO Spurs Agencies to Perform Classification Review,” Secrecy News, February 2, 2011.

CRS Questions the Open Government Initiative

The Congressional Research Service took a decidedly skeptical view of the Obama Administration’s Open Government Initiative in a recently updated report (pdf).  The report called into question not only the implementation of the Administration’s transparency policy but also its underlying rationale.

“Arguably, releasing previously unavailable datasets to the public increases transparency,” the report granted.  “The new datasets offer the public more information than was previously available, making the particular issue area more transparent.  But this type of transparency does not give Congress or the public much insight into how the federal government itself operates or executes policies,” the CRS report said.

Thus, “the dataset on child safety seats released by the National Traffic Highway Safety Administration (NTHSA), for example, increases public knowledge of child safety seats and may inform a consumer’s future purchases, but it does not affect the general transparency of NHTSA’s operations.”

But even bona fide transparency may not be altogether positive, the CRS report suggested.  “Increased transparency and mandatory public participation requirements can slow down government operations by elongating the deliberative process.  Increased participation may increase trust in the federal government while concurrently reducing the speed of government action.  Additionally, increased government transparency may prompt security and privacy concerns.”

In lieu of any conclusion, the CRS report equivocated that “Congress can decide whether to codify any of the new Obama Administration transparency policies.  On the other hand, Congress can decide whether to enact a law prohibiting the implementation of any of the open government policies.  Congress could also leave these policy decisions up to the executive branch.”

The bulk of the CRS report was written last year, but it was updated last month.  See “The Obama Administration’s Open Government Initiative: Issues for Congress,” January 28, 2011.

Last week, the Obama Administration withdrew a pending proposal to enhance federal contract transparency. “Incredibly, today’s decision would seem to place the Obama Administration in opposition [to] subsequent transparency legislation co-sponsored by then-Senator Obama,” wrote Scott Amey of the Project on Government Oversight.

Office of Director of National Intelligence to be Downsized

The Office of the Director of National Intelligence (ODNI) will be “reduced in its size and budget,” DNI James R. Clapper Jr. told the House Intelligence Committee last week (pdf).

“We, I think, all understand that we’re going to be in for some belt-tightening. And given, you know, the funding that we have been given over the last 10 years since 9/11, that’s probably appropriate,” DNI Clapper said on February 10.

“Shortly after I became DNI, exactly six months ago today, I began a thorough review of the organization. I examined the intelligence reform law, other statutes and executive orders, and the activities that they direct the DNI to execute,” he said.

“Upon review, I decided to reduce or eliminate functions not required by law or executive order that are not core missions of the DNI. I also identified elements that should transfer out of the ODNI to another agency who would serve as the executive agent on my behalf and carry out these services of [common] concern on behalf of the ODNI. In other words, we don’t need to do everything on the DNI staff itself.”

“Based on this efficiencies review, the Office of the DNI is being reduced in size and budget,” DNI Clapper said.  The details of the reduction remain to be spelled out.

See, relatedly, these updated Congressional Research Service reports on intelligence (all pdf).

“Director of National Intelligence Statutory Authorities: Status and Proposals,” January 12, 2011.

“Intelligence, Surveillance, and Reconnaissance (ISR) Acquisition: Issues for Congress,” January 20, 2011.

“Intelligence Authorization Legislation: Status and Challenges,” January 20, 2011.

“Satellite Surveillance: Domestic Issues,” January 13, 2011.

“The National Intelligence Council: Issues and Options for Congress,” January 10, 2011.

“Intelligence Estimates: How Useful to Congress?”, January 6, 2011.

Air Force Rescinds New Guidance on WikiLeaks

Secrecy News reported Monday on strange new guidance from the Air Force Materiel Command declaring that Air Force employees and even their family members could be prosecuted under the Espionage Act for accessing the WikiLeaks web site. On Monday night that new guidance was abruptly withdrawn.

Lt. Col. Richard L. Johnson of Air Force Headquarters released this statement:

“Air Force Materiel Command (AFMC) recently published an internal news story that discussed the implications of downloading presumed classified information from WikiLeaks. The release was not previously coordinated with Headquarters Air Force and has been removed from the AFMC website. The Air Force has provided guidance to military members and employees to avoid downloading what could be classified information into Air Force unclassified networks and reminded them that publication of information does not itself constitute declassification of such information. The Air Force guidance did not address family members who are not Air Force members or employees. The Air Force defers to the Department of Justice in all non-military matters related to WikiLeaks.”

A copy of the withdrawn release is archived here.  See also “US air force backtracks over WikiLeaks ban” by Ewen MacAskill, The Guardian, February 8,  and “No espionage charges for airmen on Wikileaks” by Scott Fontaine, Air Force Times, February 8.

Der Spiegel on “Staatsfeind WikiLeaks”

“Aftergood is too close to the center of power,” said Julian Assange.  “He is not an independent fighter for freedom of information.”

The passing criticism of me (I’m also “jealous”) was the first thing that caught my eye in the new book “Staatsfeind WikiLeaks” by Der Spiegel reporters Marcel Rosenbach and Holger Stark.  But the book itself is quite a bit more interesting and perceptive than that.

The authors, who are neither fans nor opponents of WikiLeaks, go out of their way to gather new information about the origins and development of the project.  They seek out contrasting perspectives and bring them to bear in interesting and challenging ways.  Of course, the story is unfinished.

“WikiLeaks is an organization in transition, with a dialectical relation to the mass media.  WikiLeaks has changed journalism, but journalism has also changed WikiLeaks,” they write.

See the Spiegel website on “Staatsfeind WikiLeaks” here.  An English-language excerpt, published last month, is here.