Posts from March, 2011

Is the Secrecy System an Autonomous Entity?

Does the secrecy system function according to its own autonomous principles?  Is it beyond the rule of law and outside of presidential control?

Not exactly.  If that were true, then there would never be involuntary changes to classification policy and there would be no compulsory declassification of classified information.  Fortunately, that is not consistently the case.

And yet there is a disturbing pattern of evidence to show that the secrecy system resists external control, and that it will not reliably fulfill even the most explicit presidential commands or the clearest requirements of law.  For example:

*    On December 29, 2009 President Obama ordered all agencies that classify information to issue final implementing regulations for his new executive order on classification policy by the end of December 2010.  The Department of Defense, the largest classifying agency, did not comply.  It did not request a waiver or an extension, it simply did not comply.  As a result, the most important classification reforms advanced by the President have not taken hold at the Department of Defense.  (“Secrecy Reform Stymied by the Pentagon,” Secrecy News, February 24, 2011).

*    Presidents Clinton, Bush and Obama each ordered that all 25 year old classified records, unless they were specifically exempted, “shall be automatically declassified whether or not the records have been reviewed.”  But agencies have refused to implement this provision or to permit automatic declassification without review, thereby crippling the presidential initiative for streamlining the declassification process.  (Under the 1999 Kyl-Lott Amendment, Congress also complicated this provision by prohibiting public release of declassified records without a separate review for nuclear weapons-related information.)

*    The Secretary of State is in standing violation of the Foreign Relations Act of 1991, which requires her to ensure the publication of a “thorough, accurate, and reliable” documentary record of U.S. foreign policy “not more than 30 years after the events recorded.”  But that is not happening.  And things are getting worse, not better.  As a result of the non-compliance by several agencies with timely declassification requirements, there “appears to be a growing distance between the statutory obligation to reach a 30-year line… and the actual length of time it has been taking to compile, review, revise, declassify, and publish those volumes,” according to the most recent report to the Secretary (pdf) from the State Department Historical Advisory Committee.

The failure of law and policy to gain purchase on classification practice is alarming on several levels.  Among other things, it means that would-be reformers cannot be satisfied with the “mere” passage of a new law or the adoption of a new executive order, since the practical effect of these steps may turn out to be illusory.  And it casts a different, more positive light on the role of unauthorized disclosures, which in some cases can compensate for the inability or refusal of government agencies to implement binding declassification and disclosure requirements.

Comments Invited on “Transforming Classification”

The Public Interest Declassification Board, an advisory committee appointed by the President and Congressional leaders, is developing recommendations on how to transform the national security classification system.  It has invited interested members of the public to comment on its emerging recommendations over the next several weeks on a new blog here.

The Board itself has no power to effect any transformation; it is purely advisory.  However, it has also been fairly influential.  Its advocacy of a National Declassification Center (first proposed by the Moynihan Commission in 1997) probably helped bring that concept to fruition.  In any case, even if the Board has little direct leverage of its own, “we do have access” to senior policy makers, said Board Chair Martin Faga, a former National Reconnaissance Office director, last week.

The initial recommendations of the Board stop well short of anything that we would call transformation.  Most fundamentally, the Board does not propose any reductions in the scope of what is classified.  It also does not inquire whether today’s hierarchical classification system is appropriate to a networked world, much less what could be devised to replace it.

But the very fact of a public conversation on the purpose and character of national security secrecy may have transformative implications.  So interested persons are encouraged to participate.

Board member Sanford J. Ungar wrote about “Unnecessary Secrets” in the March/April 2011 issue of Columbia Journalism Review.

Court Seals Unclassified Docs in Drake “Leak” Case

Prosecutors in the case of the former National Security Agency official Thomas A. Drake, who is suspected of leaking classified information to a reporter, last week asked the court to block public access to two letters that were introduced as exhibits by the defense earlier this month.  Late Friday, the court agreed to seal the two exhibits.  But they remain publicly accessible anyway.

The exhibits (pdf) describe the classification status of several NSA records that were found in the home of Mr. Drake, explaining why in each case the prosecution considers the records classified.  The defense disputes their classification and denies that Mr. Drake ever retained any classified records at his home.

Mr. Drake’s defense said (pdf) that it intends to introduce testimony at trial “which will include a discussion of the appropriate assignment of classification controls under the Executive Order and the consequences and pervasiveness of inappropriately assigning classification controls.”

To document the classification judgments that it disputes, the defense also filed the two letters from the Justice Department as exhibits on March 11.

On March 16, prosecutors asked the court (pdf) to seal those two records.  “As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as ‘FOUO’, which means ‘For Official Use Only.’ This means that the information is not for public dissemination. Until such time as NSA downgrades the information to ‘Unclassified,’ the exhibits should not be publicly filed,” prosecutors wrote.

Ironically, this prosecution argument illustrates the confusion about classification policy that prevails at NSA, in the Justice Department and in much of the government.

The NSA could not “classify” the records as FOUO and cannot “downgrade” them to “unclassified” because they are already unclassified.  “Information cannot be classified and FOUO at the same time,” according to the governing DoD regulation 5200.1-R.  “By definition, information must be unclassified in order to be designated FOUO.”

Without waiting for a response from the defense or from other interested parties, Judge Richard D. Bennett of the Maryland District Court granted the prosecution motion and sealed the records.  His March 18 decision on the matter, which was first reported by Politico, was also sealed.

The newly-sealed records remain available, however, on the Federation of American Scientists web site here. Besides being unclassified, these records do not prejudice either the prosecution or the defense, to whom they were originally written.

Total Intelligence Budget for 2007-2009 Disclosed

Military intelligence budget figures that were disclosed last week document the steady rise of the total U.S. intelligence budget from $63.5 billion in FY2007 up to last year’s total of $80.1 billion.

The total intelligence budget is composed of two separate budget constructs:  the National Intelligence Program and the Military Intelligence Program.  Last October, the DNI revealed that the FY2010 budget for the National Intelligence Program (NIP) was $53.1 billion.  And the Secretary of Defense revealed that the FY2010 budget for the Military Intelligence Program (MIP) was $27.0 billion, the first time the MIP budget had been disclosed, for an aggregate total intelligence budget of $80.1 billion for FY 2010. But prior year aggregate figures were unavailable.

Previous year budget figures for the NIP had been released since 2007.  ($43.5 billion in FY2007, $47.5 billion in FY 2008, $49.8 billion in FY2009).  But those numbers provided an incomplete picture, officials admitted.

“I thought, frankly, we were being a bit disingenuous by only releasing or revealing the National Intelligence Program, which is only part of the story,” said DNI James R. Clapper at his July 20, 2010 confirmation hearing.  “And so Secretary Gates has agreed that we could also publicize that [the MIP budget]. I think the American people are entitled to know the totality of the investment we make each year in intelligence.”

Last week, the Pentagon quietly disclosed the budget figures for the Military Intelligence Program for FY 2007 to 2009 ($20.0 billion in FY2007, $22.9 billion in FY2008, $49.8 $26.4 billion in FY 2009).

The latest disclosure finally makes it possible to report the total U.S. budget (NIP plus MIP) for the last four years:  $63.5 billion in FY2007, $70.4 billion in FY2008, $76.2 billion in FY2009, and $80.1 billion in FY2010.

Collectively, these figures — for the NIP, the MIP and the total — represent the most sustained and detailed disclosure of U.S. intelligence spending that has been achieved to date.

Public release of the FY2007-2009 MIP budget figures was requested by the Federation of American Scientists under the Freedom of Information Act on October 2, 2009.

Why does intelligence budget disclosure matter?  There are several reasons.  As a general principle, nothing should be secret without a compelling reason.  Unnecessary secrecy needs to be challenged and overcome at every turn.

More particularly, the sharp rise in intelligence spending prompts the question whether it is justified by a valid requirement and a satisfactory record of performance.  The question deserves an answer, if only indirectly by means of competent congressional oversight.

Furthermore, budget disclosure is unique in that it is the only category of executive branch information whose periodic publication is specifically required by the U.S. Constitution (Article 1, Section 9, Clause 7):  “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

“Publication of the aggregate figure for national intelligence would begin to satisfy the constitutional requirement,” the Church Committee concluded in its monumental 1976 report on U.S. intelligence activities (Book 1, Chapter XVI [pdf]), “and would not damage the national security.”

Therefore, “the Committee recommends the annual publication of the aggregate figure.”  That 35 year old recommendation languished for decades but has now been realized to an unprecedented degree.  (Aggregate budget figures were previously disclosed for the years 1997-1998.)

“The Committee also recommends that any successor committees study the effects of publishing more detailed information on the budgets of the intelligence agencies,” the Church Committee report added.  No such study has been performed.

“No other MIP budget figures or program details will be released, as they remain classified for national security reasons,” the Pentagon said upon release of the new data on March 11.  However, it said precisely the same thing upon release of the 2010 budget figure last October, which nevertheless were followed by the latest disclosures.

Despite the preemptive warning, we have asked the Pentagon to release the MIP budget request for the coming year, in light of the fact that the FY2012 NIP budget request has already been released.

Instances of Use of US Forces Abroad, More from CRS

U.S. military forces have been deployed in military conflicts abroad hundreds of times over the past two centuries — not including covert actions or training exercises.  An updated tabulation is given in “Instances of Use of United States Armed Forces Abroad, 1798-2010″ (pdf), Congressional Research Service, March 10, 2011.

Some other noteworthy new CRS reports include the following (all pdf).

“Middle East and North Africa Unrest: Implications for Oil and Natural Gas Markets,” March 10, 2011.

“The Strategic Petroleum Reserve and Refined Product Reserves: Authorization and Drawdown Policy,” March 11, 2011.

“Terrorist Use of the Internet: Information Operations in Cyberspace,” March 8, 2011.

“International Criminal Court and the Rome Statute: 2010 Review Conference,” March 10, 2011.

“International Criminal Court Cases in Africa: Status and Policy Issues,” March 7, 2011.

“Closing Yucca Mountain: Litigation Associated with Attempts to Abandon the Planned Nuclear Waste Repository,” March 4, 2011.

“U.S. Tsunami Programs: A Brief Overview,” March 14, 2011.

Mary B. Mazanec has been appointed acting director of the Congressional Research Service. Ms. Mazanec is the current CRS deputy director.  She will serve in an acting capacity until the selection of a new director is made by Librarian of Congress James H. Billington.  The current director, Daniel P. Mulhollan, will retire on April 2.

Public interest groups hope that the change in CRS leadership will coincide with, or will help to promote, a change in CRS publication policy.  Currently, at congressional direction, CRS does not permit direct public access to its reports.

P.J. Crowley and the Limits of Openness

State Department spokesman P.J. Crowley resigned yesterday facing an Obama Administration backlash against his remarks declaring the treatment of suspected leaker Pfc. Bradley E. Manning “ridiculous and counterproductive and stupid.”

The conditions of Private Manning’s detention became the subject of controversy when his lawyer complained that Manning was being involuntarily forced to surrender his clothing to his Quantico military guards each night, supposedly in order to protect him from self-injury. Neither Manning, his attorney, nor any competent medical authority had requested any such “protection.”  Instead, the compulsory nudity was widely perceived as a punitive measure, prompting protests from Amnesty International, among others.  (We urged the DoD Inspector General to investigate the matter, to no known effect.)

Mr. Crowley, an uncompromising critic of leaks of classified information, is no friend of Private Manning who, he said, “is in the right place” (i.e., in jail).  It was the gratuitous abuse of the prisoner that he deemed “ridiculous and counterproductive and stupid.”

He was right.  In America, the pre-trial detention of any person who has not been convicted of a crime should be beyond reproach.  In the Manning case (and in too many others), it hasn’t been.

Though in criticizing Defense Department detention policy Mr. Crowley was clearly outside of his bureaucratic “lane,” he deserves credit for speaking out on a matter of principle.  In an intelligent system of government, such views would be freely aired and honestly attended to.  But it seems that there is not much place for such speech in the current Administration.

To its credit, the State Department did publish Mr. Crowley’s non-retraction on its website.  “My recent comments regarding the conditions of the pre-trial detention of Private First Class Bradley Manning were intended to highlight the broader, even strategic impact of discrete actions undertaken by national security agencies every day and their impact on our global standing and leadership,” Mr. Crowley said. “The exercise of power in today’s challenging times and relentless media environment must be prudent and consistent with our laws and values.”

That is to say, the exercise of power today is not always prudent or consistent with our laws and values.  Sadly, Crowley’s departure under these circumstances makes corrective action more difficult.

However, the Defense Department reportedly rescinded its forced nudity policy towards Manning.  “On Friday, officials said they are again providing him with sleeping garments,” the Washington Post reported.

In a new sign of public dissent from the Obama Administration’s intensive pursuit of suspected leakers, former NSA official Thomas Drake, who is accused of unlawful retention of classified information, was designated as the recipient of an award for “truth-telling.”

Named for the late Ron Ridenhour, who brought the My Lai massacre to public attention, “The Ridenhour Prize for Truth-Telling is presented to a citizen, corporate or government whistleblower, investigative journalist, or organization for bringing a specific issue of social importance to the public’s attention.”  (In previous years, but not this year, I was involved in the Award selection process.)  The award to Mr. Drake will be presented in Washington, DC on April 13.  Mr. Drake’s Espionage Act trial is scheduled to begin on April 25 June 13.

Agencies Boost Surveillance of Classified Networks

In the wake of the ongoing publication of large volumes of classified U.S. government information by WikiLeaks, executive branch agencies are taking new steps to deter, detect and prevent the unauthorized transfer of information from classified government networks, officials said at a hearing of the Senate Homeland Security Committee last week.

In the majority of terminals connected to the DoD SIPRNet, the classified defense network, the capability to write to removable media has now been disabled.  (Bradley Manning is suspected of downloading State Department cables and other classified materials from SIPRNet and writing them to a compact disk.)

“For those few machines where writing is allowed [newly installed security software] will report, in real time, each write operation,” said Teresa Takai and Thomas Ferguson (pdf) of the Department of Defense.  “It will also report every attempt of an unauthorized write operation.”

“DoD has begun to issue a Public Key Infrastructure (PKI)-based identity credential on a hardened smart card… [that] will provide very strong identification of the person accessing the network and requesting data.  It will both deter bad behavior and require absolute identification of who is accessing data and managing that access,” they said.

Likewise, “the IC [intelligence community] plans to increase access control to critical IC information resources,” said Corin R. Stone (pdf) of the Office of the Director of National Intelligence.  “Technology can be used to control usage and limit user capabilities to perform activities such as copying, printing, or exporting data to a device.”

As voluminous as the WikiLeaks disclosures are, they represent only a minuscule fraction of similar records.  Even when it comes to the State Department cables, WikiLeaks didn’t get everything, Amb. Patrick Kennedy told the Senate Committee.  “During the period of time [that] we posted… some 250,000 cables… to the DOD SIPRNet, we [also] disseminated 2.4 million cables, 10 times as many, through other systems.”

The fact is that more than 99.9% of classified documents don’t leak.  Now they will all be subject to enhanced security measures.

Sunshine Week, and Various Items

*    This is Sunshine Week, an annual celebration of open government.  A National Security Archive survey of agency compliance with the Freedom of Information Act found mixed and uneven progress over the past year.

*    With the promotion of Information Security Oversight Office (ISOO) director William J. Bosanko to the new position of NARA Agency Services Executive, the ISOO director slot — with its responsibilities for oversight of classification and declassification policy — is open. “We have recently begun a search effort for the ISOO Director position and are committed to filling the vacancy with someone who will maintain the balance between secrecy and openness for which ISOO is known,” wrote National Archivist David S. Ferriero in a March 7 memorandum (pdf).

*    Last month, the Office of the Director of National Intelligence released its latest (2010) unclassified annual report to Congress (pdf) on the acquisition of technology relating to weapons of mass destruction and advanced conventional munitions.  Unfortunately, the report is minimally informative, with little new information, and less information than is available from other sources (such as the latest IAEA report on Iran [pdf]).  The section on conventional weapons, included in the 2009 report (pdf), is missing altogether.

*    Contributions in support of disaster relief in Japan can be made through the Red Cross and other organizations.

Leaks a “Serious Problem” for Defense Intelligence

Unauthorized disclosures of classified information are among “the major challenges” facing defense intelligence, Acting Under Secretary of Defense for Intelligence Michael Vickers told Congress last month.  Mr. Vickers is awaiting Senate confirmation to be the new USD(I), a post that was last held by James R. Clapper, who is now the Director of National Intelligence.  The Under Secretary is “dual-hatted” as Director of Defense Intelligence.

“One of the most serious problems currently confronting the USD(I) is the unauthorized disclosure of classified information. The spate of unauthorized disclosures of very sensitive information places our forces, our military operations, and our foreign relations at risk.  It threatens to undermine senior leaders’ confidence in the confidentiality of their deliberations, and the confidence our foreign partners have that classified information they share with us will be protected,” Mr. Vickers wrote (pdf) in response to advance questions for his February 15, 2011 confirmation hearing before the Senate Armed Services Committee.

With respect to WikiLeaks in particular, Mr. Vickers told Senator McCain at his confirmation hearing that by publishing names of Afghans who had cooperated with the U.S. military, WikiLeaks had put their “lives in danger.”

“Fortunately,” he added, “we are able to attract the intelligence assets that we require to serve our policymakers and warriors.  But the damage should not be understated… and the Department has learned many lessons about how to prevent this from ever happening again.”

Among numerous other intelligence policy topics, Mr. Vickers addressed the possible breakout of the National Intelligence Program (NIP) budget from its current concealment in the larger defense budget, a step that is favored by public interest advocates who believe it would improve the integrity of the budgeting process.

“The proposal to separate the NIP portion of the Defense budget was… intended… to provide greater visibility and oversight of NIP resources, as well as improve NIP financial management practices,” he wrote.  “ODNI is leading a collaborative study effort to determine the feasibility of the conceptual proposal, with DoD stakeholders participating.  The study team is still assessing possible approaches and implications. No final decisions have been made on removing the NIP from the DoD budget.”

Mr. Vickers was asked “Under what circumstances, if any do you think intelligence officers and analysts should be able to testify to Congress on their professional conclusions regarding a substantive intelligence issue even if those views conflict with administration positions?”  He responded: ”If Congress requires testimony on a substantive intelligence issue, it should be provided, whether or not it conflicts with an administration position.”

Another question posed by the Senate Armed Services Committee revealed that “the Department may have failed to report certain cyber activities in the Quarterly Report [to Congress] that should have been included, since they would legitimately fit the accepted definition of clandestine military activities [that are to be disclosed to Congress].”  (Previously noted by the Associated Press,EmptyWheel.)  Mr. Vickers said that if confirmed, he would commit to full reporting on DoD intelligence-related activities, “to include cyber activities.”

Senator Joe Manchin (D-WV) asked Mr. Vickers “What’s the strength of al Qaeda in Afghanistan?… 10,000?  100,000?”

“No, sir,” Mr. Vickers replied.  The number of al Qaeda personnel in Afghanistan “would be under 50 or so, 50 to 75, and that on a part-time basis.”  However, he added, “The Taliban are still aligned with al Qaeda…. Even though Afghanistan is not principally where al Qaeda is, it could become a future safe haven if we were to repeat the errors we made after the Cold War.”

Law Enforcement Use of GPS Devices, and More from CRS

When law enforcement agencies use a Global Positioning System device to track the motor vehicle of a potential suspect, is that a “search” that is subject to constitutional protections under the Fourth Amendment?  Or is it comparable to visual inspection of public information that enjoys no such protection?

The Supreme Court has not ruled on the subject, and lower courts have issued a range of opinions in different cases, according to a new report (pdf) from the Congressional Research Service that carefully delineated the issues.

“Depending on how one reads the courts’ decisions, one could conclude that there is a split in the courts regarding whether law enforcement must first obtain a warrant before using a GPS device.  Conversely, one could also conclude that the courts’ decisions are reconcilable and that the outcomes of the cases are fact-sensitive.”

A copy of the CRS report was obtained by Secrecy News.  See “Law Enforcement Use of GPS Devices to Monitor Motor Vehicles: Fourth Amendment Considerations,” February 28, 2011.

Some other new or newly updated CRS products include these (all pdf):

“Mandatory Vaccinations: Precedent and Current Laws,” February 24, 2011.

“The U.S. Postal Service’s Financial Condition: Overview and Issues for Congress,” February 24, 2011.

“War Powers Resolution: Presidential Compliance,” February 3, 2011.