Posts from March, 2011

DNI Drags Heels on GAO Access to Intelligence

The Director of National Intelligence has prepared a draft intelligence directive on access by the Government Accountability Office (GAO) to intelligence information, but it is “shockingly bad,” a congressional official said.

The GAO is an investigative arm of Congress that performs audits and reviews in support of congressional oversight and the legislative process.  But GAO access to intelligence information has often been frustrated by resistance from the executive branch, which has sought to strictly limit the conduct of intelligence oversight to the congressional intelligence committees.

In an attempt to clarify the role of the GAO in intelligence oversight, the 2010 intelligence authorization act directed the DNI to prepare a new intelligence community directive to govern GAO access to intelligence information.  The first draft of the new directive is said to reserve maximum discretion to the DNI, and to offer little practical assurance that GAO will get access to the information it needs.

So, for example, the definition of intelligence information that may be withheld from GAO extends broadly to law enforcement, military and intelligence information related to national security.  GAO access is to be denied whenever it concerns information regarding “intelligence budgets or funding, or personnel information that… may reveal intelligence strategy, capabilities, or operations.”

“In other words, GAO cannot look at anything that involves money or people,” the congressional official told Secrecy News.  “Combine that with the sweeping, open-ended definition of intelligence and large chunks of the federal government suddenly vanish from [GAO] oversight– DOD, FBI, DHS, State Department, etc.”

In fact, because the pending Directive would extend to the entire intelligence community, it could actually make things worse than they already are by undermining current GAO oversight of military intelligence agencies, which by all accounts has been fruitful and effective.

Intelligence officials appeared to be taken aback by the criticism of the draft directive, which has not yet been released.  They said the draft is still in preparation and that it is not intended to undermine GAO’s oversight function.

But the Obama Administration has strongly opposed an enhanced role for GAO oversight of intelligence.  The Obama White House even threatened to veto the 2010 intelligence authorization act over the issue.

Meanwhile, intelligence agencies are operating in an oversight vacuum without effective supervision of their spending practices.  Most of the agencies cannot and do not produce auditable financial statements, the Senate Intelligence Committee reported this month.

“The CIA has submitted its financial reports to an independent auditor but has received a disclaimer of opinion due to the inability of the auditor to gather certain relevant facts.  The NSA, DIA, and NGA are still not even prepared to submit their financial reports to independent audit,” the Senate Committee report (pdf) said.

PIDB on Discretionary Declassification, Other Topics

In its ongoing consideration of policy options for “transforming classification,” the Public Interest Declassification Board has produced three short new papers that are intended to prompt further discussion.

The new papers discuss Simplifying the Declassification Review Process for Historical Records, Discretionary Declassification and Release of Contemporary National Security Information, and Regularizing the Declassification Review of Classified Congressional Records.

Interested members of the public are invited to comment on the PIDB blog here.

Six Days of Odyssey Dawn (Libya) Cost $400 Million

The first six days of Odyssey Dawn, the US war in Libya, cost an estimated $400 million, according to a new report (pdf) from the Congressional Research Service.

“Using operational details provided by DOD and DOD cost factors, a ‘bottoms-up’ estimate of the cost of initial operations suggests that in the first six days of operations, DOD has spent roughly $400 million,” the report said.

“U.S. participation in Operation Odyssey Dawn and NATO operations around Libya raises a number of questions for Congress, including the role of Congress in authorizing the use of force, the costs of the operation, the desired politico-strategic end state, the role of U.S. military forces in an operation under international command, and many others,” said the CRS report, which fleshed out many of those questions.

See “Operation Odyssey Dawn (Libya): Background and Issues for Congress,” March 28, 2011.

Intelligence and the Decline of U.S. Manufacturing

The U.S. intelligence community will prepare a National Intelligence Estimate on the implications of the continuing decline in U.S. manufacturing capacity, said Rep. Jan Schakowsky (D-IL) citing recent news reports.

“Last month Forbes reported that the continued erosion of the U.S. manufacturing base has gotten so serious that the Director of National Intelligence has begun preparation of a National Intelligence Estimate… to assess the security implications of the decline of American manufacturing,” said Rep. Schakowsky, a member of the House Intelligence Committee.

“Our growing reliance on imports and lack of industrial infrastructure has become a national security concern,” said Rep. Schakowsky.  She spoke at a March 16 news conference (at 28:10) in opposition to the pending U.S.-Korea Free Trade Agreement.

The Forbes report referenced by Rep. Schakowsky was “Intelligence Community Fears U.S. Manufacturing Decline,” by Loren Thompson, February 14. The decision to prepare an intelligence estimate was first reported by Richard McCormack in “Intelligence Director Will Look at National Security Implications of U.S. Manufacturing Decline,” Manufacturing & Technology News, February 3.

Rep. Schakowsky told the newsletter Inside U.S. Trade (March 25) that she hopes a “declassified portion” of the NIE will be publicly released.

But according to the Congressional Research Service, that may be unlikely.  “There seems to be an emerging consensus that publicly releasing NIEs, or even unclassified summaries, has limitations. Some of the nuances of classified intelligence judgments are lost and there are concerns that public release of an unclassified summary of a complicated situation does not effectively serve the legislative process.” See “Intelligence Estimates: How Useful to Congress?” (pdf), January 6, 2011.

“With 14 million Americans out of a job we should not be considering a trade deal that will ship additional jobs overseas,” said Rep. Schakowsky, referring to the U.S.-Korea Free Trade Agreement.

“Instead, we need to work to rebuild the American manufacturing sector, creating jobs at home. And instead of approving FTAs (free trade agreements) that will offshore more American jobs, we need to establish a trade policy that benefits American workers and the entire American economy,” she said.

The CRS (pdf) cited a study which concluded that overall changes in aggregate U.S. employment attributable to the US-Korea agreement “would be negligible given the much larger size of the U.S. economy compared to the South Korean economy. However, while some sectors, such as livestock producers, would experience increases in employment, others such as textile, wearing apparel, and electronic equipment manufacturers would be expected to experience declines in employment.” Accordingly, the “U.S. beef sector” supports the agreement, while some labor unions oppose it.

See “The Proposed U.S.-South Korea Free Trade Agreement (KORUS FTA): Provisions and Implications,” Congressional Research Service, March 1, 2011.  See also “Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade Policy,” January 6, 2011.

State Secrets, Afghan Casualties, and More

Despite a requirement of law, the U.S. State Department has failed to produce two retrospective volumes of the Foreign Relations of the United States Series documenting U.S. covert action in Iran (1952-54) and the Congo (1960-68).  See Stephen R. Weissman, “Why is US withholding old documents on covert ops in Congo, Iran,” Christian Science Monitor, March 25, 2011.

Civilian casualties in Afghanistan were documented in new detail based on the release of internal military databases to Science Magazine, which published them this month.

An extensive online collection of judicial rulings involving the state secrets privilege and other related resources has been compiled by the Georgetown Center on National Security and the Law.

Louis Fisher, a constitutional scholar formerly at the Congressional Research Service and the Law Library of Congress, has posted many of his writings on the state secrets privilege, war powers, and others aspects of constitutional interpretation on a new web site here.

A recent law review paper entitled “Intolerable Abuses: Rendition for Torture and the State Secrets Privilege” by D.A. Jeremy Telman is available here.

“The False Choice Between Secrecy and Transparency in US Politics” by Clare Birchall appeared in the March 2011 issue of Cultural Politics.

The National Archives and Duke University will hold a conference on April 12 on media access to government information.

Search for New ISOO Director Begins

In a process that will shape the future of secrecy policy for better or for worse, a search for a new Director of the Information Security Oversight Office (ISOO), which oversees the national security classification system, has formally begun.

“NARA seeks a Director of the Information Security Oversight Office with responsibility for policy and oversight throughout the executive branch of the United States Government for classified national security information and controlled unclassified information,” according to a March 21 notice (pdf) in USA Jobs.

The ISOO Director is the principal overseer of classification and declassification policy, and the scope of his authority over classification practice is broader than that of anyone other than the President.  (Though located at the National Archives, the ISOO takes national security policy direction from the White House.)

The Director is responsible “to ensure compliance” with classification policy, and he has the power to “consider and take action on complaints and suggestions from persons within or” — significantly — “outside the Government” concerning classification.

According to the President’s executive order 13526 (section 3.1e), “If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification.”

With such responsibility and authority in hand, the ISOO Director has the potential to be a powerful driver for change — or a custodian of the status quo.  If it is true that “personnel is policy,” as the Reagan-era saying had it, then the choice of a new ISOO Director may define the character of secrecy policy for years to come.

On March 21, the National Archivist appointed William A. Cira, ISOO’s Associate Director of Classification Management, as Acting ISOO Director, effective March 27.  On that date the current ISOO Director, William J. Bosanko, assumes the new office of Executive for Agency Services at NARA. The job search for a new ISOO Director closes on April 4.

No-Fly Zones: Considerations for Congress

The decision to impose a no-fly zone on Libya is scrutinized from various perspectives in a new report (pdf) from the Congressional Research Service.

The report distinguishes “authorization” to establish a no-fly zone from the “legality” of the move, and also from its “legitimacy.”  “The three concepts overlap but are all distinct,” the report says.

The report, which may help to inform congressional deliberations, also treats operational and cost issues.  A copy was obtained by Secrecy News.  See “No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress,” March 18, 2011.

“From the Washington Administration to the present, Congress and the President have enacted 11 separate formal declarations of war against foreign nations in five different wars,” according to another newly updated CRS report.  Yet there have been hundreds of U.S. military engagements over the past two centuries.

The significance of a declaration of war as compared to an “authorization” for the use of force was explored in detail in “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications,” March 17, 2011.

For a brief overview of Japan’s nuclear disaster, see “Fukushima Nuclear Crisis,” March 15, 2011.

DNI Orders “Integrated Defense” of Intelligence Information

The Director of National Intelligence is calling for the “integrated defense” of intelligence community (IC) information and systems to protect against unauthorized disclosures of intelligence sources and methods.

While every intelligence agency already has its own security procedures, a new Intelligence Community Directive (pdf) issued by the DNI would require a more coordinated and consistent approach, involving “unified courses of action to defend the IC information environment.”

“The IC information environment is an interconnected shared risk environment where the risk accepted by one IC element is effectively accepted by all,” the new Directive said.  Therefore, “integrated defense of the IC information environment is essential to maintaining the confidentiality, integrity, and availability of all information held by each IC element.”

The Directive does not specify the defensive measures that are to be taken, but states that they should address “the detection, isolation, mitigation and response to incidents, which include spills, outages, exploits, attacks and other vulnerabilities.”  An IC Incident Response Center will maintain “situational awareness of network topology, including connection points among IC element networks; threats, vectors, and actions that could adversely affect the IC information environment; and the overall health and status of IC information environment defenses.”

See “Integrated Defense of the Intelligence Community Information Environment,” Intelligence Community Directive (ICD) 502, March 11, 2011.

Although intelligence agencies are not waiting for security policy guidance from Congress, the intelligence oversight committees seem determined to provide it anyway.

In its initial markup of the FY2011 intelligence authorization bill, the House Intelligence Committee has prescribed the establishment of an Insider Threat Detection Program “in order to detect unauthorized access to, or use or transmission of, classified intelligence.”

The Senate Intelligence Committee reportedly wants to require a revised or supplemental non-disclosure agreement for intelligence employees, by which they would consent in advance to surrender their pension benefits if they were found to have committed an unauthorized disclosure.

As far as is known, neither Committee has advanced any new proposals for reducing unnecessary classification or strengthening protections for national security whistleblowers.

Review of CIA Interrogation Program Still Unfinished

It is nearly a decade since the Central Intelligence Agency embarked on its controversial post-9/11 program of prisoner detention and interrogation, which included “enhanced” procedures that would later be repudiated and that were widely regarded as torture.  But even now, an accurate and complete account of that episode remains unavailable.

It is more than two years since the Senate Intelligence Committee belatedly began “a study of the CIA’s detention and interrogation program.”  The Committee reported (pdf) this month that “the CIA has made available to the Committee over 4 million pages of CIA records relating to its detention and interrogation program.”

Yet the Committee said that its two year old review of the nearly decade-old program is still not complete:  “The review has continued toward the goal of presenting to the Committee, in the [current] 112th Congress, the results of the review of the extensive documentary record that has been provided to the Committee.”  There was no mention of presenting the results of the review to the public. See “Report of the Select Committee on Intelligence Covering the Period January 3, 2009 to January 4, 2011,” Senate Select Committee on Intelligence, March 17, 2011.

The Intelligence Committee report presented a number of other noteworthy statements:

A review of electro-optical intelligence satellite collection systems by members of the Committee’s Technical Advisory Group in 2010 “found flawed processes and results from the earliest stage of the requirements process… [and] judged the technical justification for the proposed system fell far short of the standard they expected from an investment of this magnitude.”

The Committee staff “found that too many [defense] attaches are not sufficiently conversant in the languages, cultures, and traditions of the countries to which they are assigned.”

Intelligence agencies continue to fail to produce financial records that can be independently audited.  The National Reconnaissance Office “is the only one of the IC agencies required to produce auditable financial statements that has achieved what appears to be a sustainable opinion with no qualifications from its independent auditors…. The CIA has submitted its financial reports to an independent auditor but has received a disclaimer of opinion due to the inability of the auditor to gather certain relevant facts.  The NSA, DIA, and NGA are still not even prepared to submit their financial reports to independent audit,” the Senate report said.

Use of Military Force in Domestic Disturbances (1945)

Under extreme circumstances, U.S. military force may be turned against American civilians. An unusually explicit 1945 U.S. military field manual (pdf) described tactics for suppressing riots or protests when State and local officials are unable to control the situation.

“Domestic disturbances are manifestations of civil unrest or tension which take the form of demonstrations or rioting. These public demonstrations or riots may reach such proportions that civil authorities cannot maintain law and order by usual methods. Such disturbances may be caused by agitators, racial strife, controversies between employees and employers concerning wages or working conditions, unemployment, lack of housing or food, or other economic or social conditions.”

“A city held by any organized rioters will be attacked generally in the same manner as one held by enemy troops.”

“When small-arms fire is necessary, troops are instructed to aim low to prevent shots going over the heads of the mob and injuring innocent persons not members of the mob,” the manual said.

For definitional purposes, “a crowd is a large number of persons in a close body.” A “mob is… a crowd whose members, under the stimulus of intense excitement, have lost their sense of reason and respect for law.”

“A mob usually is attacked on the flank, opposite the direction in which it is desired to drive it. When it is apparent that those in front cannot retreat because of pressure from the rear, pressure on the front should be eased temporarily while the rest of the mob is attack with chemical grenades,” the manual advised.

“Bayonets are effective when used against rioters who are able to retreat, but they should not be used against men who are prevented by those behind them from retreating even if they wish to do so.”

The manual, which was originally classified “Restricted,” has long been deemed obsolete and has been superseded by other guidance on military support to civil authorities. It was recently digitized by the Combined Arms Research Library at Fort Leavenworth. See “Domestic Disturbances,” Field Manual 19-15, War Department, July 1945.