Posts from May, 2011

Total Number of Security Clearances Still Unknown

The precise number of persons who hold security clearances for access to classified information was supposed to be reported to Congress by the Office of the Director of National Intelligence for the first time in February 2011.  But that total number, which is believed to be around 2.5 million, remains elusive and it still has not been provided.

At a December 1, 2010 hearing of a House Intelligence Subcommittee, John Fitzpatrick, director of the ODNI Special Security Center, told Rep. Anna Eshoo that the precise number of clearances would be revealed early this year.

“We have a special data collection to provide a definitive answer on that in the February 2011 IRTPA report,” he said, referring to a report required under the 2004 Intelligence Reform and Terrorism Prevention Act.  (“How Many People Have Security Clearances?”, Secrecy News, December 14, 2010).

But when the February 2011 IRTPA report (pdf) was publicly released this month, in response to a Freedom of Information Act request, the promised number was not included.

It seems that compiling an accurate and complete figure for all security clearances is more challenging and time-consuming than had been anticipated.  An ODNI spokesman said that the number will still be provided, but it will be transmitted in a different report pursuant to the Intelligence Authorization Act of 2010 (section 367), which specifically required disclosure of the total number of clearances.

“The Intelligence Authorization Act of 2010, which was signed into law in October, includes new Executive Branch accounting requirements for the collection and reporting on the aggregate number of security clearances held, and we continue to keep Congress informed on the status of these reports,” the ODNI spokesman told Secrecy News.

A copy of the report on the number of security clearances is said to be in draft form.

The new IRTPA report, meanwhile, states that “the government has continued to show a significant improvement in security clearance processing times.”  The average processing time for an initial clearance was 79 days in FY 2010, down from 86 days in FY 2009.  For the fastest 90% of initial security clearances, processing time was down to an average of 53 days, the report said.

Two New Judges Appointed to Intelligence Court

The Chief Justice of the U.S. Supreme Court has named two new federal district court judges to the Foreign Intelligence Surveillance Court to replace two others whose term had expired.  The FIS Court is responsible for reviewing government applications for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act.

The new appointments are Judge Jennifer B. Coffman of the Eastern District of Kentucky, and Judge F. Dennis Saylor of the District of Massachusetts.

Both judges were appointed for a seven year term effective May 19, 2011, said Sheldon L. Snook, Esq., the Administrative Assistant to the Chief Judge of the US District Court for the District of Columbia.

They replace outgoing FIS Court members Judge Dee Benson and Judge Frederick J. Scullin, Jr. whose term on the Court ended May 18.

“At least one of these [FIS Court] judges is available at all times–24 hours a day, 7 days a week, 365 days a year–for the purpose of reviewing government applications to use FISA authorities and, if those applications are sufficient, approving them by issuing an order,” said Sen. Dianne Feinstein this week.

“During calendar year 2010, the Government made 1,579 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes,” according to the latest Justice Department report to Congress on implementation of the FISA.

The jurisdiction of the FIS Court has also been modified by statute in recent years.  “The FISA Amendments Act, adopted in July 2008, made it so that FISA orders for surveillance in the U.S. of targets reasonably believed to be abroad no longer have to be obtained,” observed Greg Nojeim of the Center for Democracy and Technology.  ”As a result, a significant amount of surveillance that used to be reflected in the FISA court order numbers isn’t reflected in them any more.”

Eleven Words in Pentagon Papers to Remain Classified

Update (6/23/11): On June 13, the Pentagon Papers were published in their entirety. The last eleven words that remained classified were declassified prior to publication.

The Pentagon Papers that were leaked by Daniel Ellsberg four decades ago have been formally declassified and will be released in their entirety next month — except for eleven words that remain classified.

David S. Ferriero, the Archivist of the United States, announced the surprising exception to the upcoming release of the Papers at a meeting of the Public Interest Declassification Board on May 26.

The nature of the censored words was not described, but the National Declassification Center said on its blog that all eleven of them appeared on a single page. (Update: The discussion of the eleven words has been deleted from the NDC blog post.) The Center also said that the release next month “will present the American public with the first real look at this historic document,” because it will be more complete and accurate than any prior edition of the Papers.

From a security policy point of view, the decision to maintain the classification of eleven words is questionable because it invites attention and speculation, not to mention ridicule, focused precisely on that which is withheld.

In any case, all of the Pentagon Papers except for the mysterious eleven words will be officially released in hard copy and online in digital format on June 13.

The decision to censor the eleven words was peculiar, Archivist Ferriero acknowledged.  He suggested that the redactions would lend themselves to an entertaining game of “Mad Libs,” in which players suggest humorous possibilities for filling in the blanks in a sentence.

The Archivist also reported that the National Declassification Center has now achieved the capacity to process 14 million pages of classified records per month for declassification, and that it is in fact declassifying 91% of the material that it is processing.

The Public Interest Declassification Board convened a public meeting Thursday at the National Archives on options for “transforming classification.”  The Board will continue to receive public comments on the subject on its blog until mid-June.

Congressional Oversight Manual, and More from CRS

The Congressional Research Service has just updated its Congressional Oversight Manual, which details the considerable legal authorities, legislative instruments and investigative tools for conducting oversight that members of Congress and congressional committees have at their disposal. See “Congressional Oversight Manual” (pdf), May 19, 2011.

Other new or newly updated CRS reports of interest include the following (all pdf):

“Building the Capacity of Partner States Through Security Force Assistance,” May 5, 2011.

“Department of Defense Trends in Overseas Contract Obligations,” May 16, 2011.

“Department of Defense Contractors in Iraq and Afghanistan: Background and Analysis,” May 13, 2011.

“The Department of Defense’s Use of Private Security Contractors in Afghanistan and Iraq: Background, Analysis, and Options for Congress,” May 13, 2011.

Sen. Wyden Decries “Secret Law” on PATRIOT Act

Updated below

An amendment offered on May 24 by Sen. Ron Wyden would have challenged the Administration’s reliance on what he called “secret law” and required the Attorney General to explain the legal basis for its intelligence collection activities under the USA PATRIOT Act.  But that and other proposed amendments to the PATRIOT Act have been blocked in the Senate.

“The public will be surprised… when they learn about some of the interpretations of the PATRIOT Act,” Sen. Wyden said, based on his access to classified correspondence between the Justice Department and the Senate Intelligence Committee.

“U.S. Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws or describe the execution of these laws in a way that misinforms or misleads the public.”

“We can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used,” Sen. Wyden said. “But I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means.”

But the Senate moved toward cloture on reauthorization of the PATRIOT Act provisions and the Wyden amendment, which was co-sponsored by several Senate colleagues, was not permitted to be offered or to be voted upon.

The House Judiciary Committee issued a report last week on the reauthorization of surveillance provisions in the USA PATRIOT Act, with a lengthy dissent from the minority members of the Committee. See “FISA Sunsets Reauthorization Act of 2011,” House Report 112-79, part 1, May 18, 2011.

In 2008, then-Sen. Russ Feingold chaired a Senate Judiciary Committee hearing on “Secret Law and the Threat to Democratic and Accountable Government.”

Update: On May 26, Senators Wyden, Udall, Merkley, and Feinstein engaged in a colloquy on secret law and noted an agreement with Senator Feinstein to hold hearings on the matter in the Senate Intelligence Committee. Senators Wyden and Udall spoke further on the subject here.

Pakistan-U.S. Relations, and More from CRS

A new overview of relations between Pakistan and the United States in light of recent events was prepared by the Congressional Research Service.  See “Pakistan-U.S. Relations: A Summary,” May 16, 2011.

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

“Interagency Collaborative Arrangements and Activities: Types, Rationales, Considerations,” May 9, 2011.

“Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues,” May 5, 2011.

“Internships, Fellowships, and Other Work Experience Opportunities in the Federal Government,” May 12, 2011.

A Call for Self-Restraint in Disclosure of Sensitive Information

Instead of imposing mandatory new legal restrictions on publication of sensitive information, the nation would be better off if scientists, journalists and others adopted an ethic of self-restraint in what they choose to publish, a provocative new paper suggests.

“An abundance of information that could be useful to terrorists is available in the open literature,” wrote analyst Dallas Boyd.  But that doesn’t mean it should be censored by law.  “A soft consensus seems to have formed that airing this information does not subtract from national security to such an extent as to justify the extraordinary powers that would be required to suppress it.”

“An alternative to draconian restrictions on speech entails fostering a culture of voluntary restraint, in which citizens refrain from inappropriate revelations out of a sense of civic duty.  Its enforcement would depend not on government coercion but on individuals and institutions supplying disapproval of irresponsible discussion,” he suggested.

“Stigmatization of those who recklessly disseminate sensitive information… would be aided by the fact that many such people are unattractive figures whose writings betray their intellectual vanity.  The public should be quick to furnish the opprobrium that presently escapes these individuals,” he wrote, without quite naming names.  “The need to influence the behavior of scientists is particularly acute.”

The 23-page paper (pdf) contains an extensive account of past disclosures that the author deems questionable or irresponsible, and a thoughtful assessment of the feasibility of his own proposal.

“Perhaps the greatest obstacle to sanitizing discussion of sensitive information is the unresolved question of its harmfulness,” Mr. Boyd wrote.  Indeed, it is often not possible to state definitively that certain information poses an unambiguous hazard. It is typically even more difficult to persuade a publisher of such material to modify his disclosure practices.

Overall, the Boyd paper tends to reinforce the “soft consensus” that new legal restrictions on dissemination of information are to be avoided.  But in most cases, those who are likely to be receptive to the appeal of voluntary self-restraint on publication of sensitive data probably have already embraced it.

“Protecting Sensitive Information: The Virtue of Self-Restraint” by Dallas Boyd was published in Homeland Security Affairs, volume 7, May 2011.  A copy is posted here.

Defense Employees Told to Report Suspicious Activities

A new counterintelligence directive (pdf) requires all Department of Defense personnel to report a wide range of suspicious activities and behavior to counterintelligence officials.  The directive effectively deputizes millions of military and civilian employees of the Department as counterintelligence agents or informants.  If they do not report any of the specified activities, they themselves could be subject to punitive action.

“Potential FIE [Foreign Intelligence Entity] threats to the DoD, its personnel, information, materiel, facilities, and activities, or to U.S. national security shall be reported by DoD personnel,” the new directive states.

“DoD personnel who fail to report information as required… may be subject to judicial or administrative action, or both, pursuant to applicable law and regulation,” it says.  See DoD Directive 5240.06, “Counterintelligence Awareness and Reporting,” May 17, 2011.

The directive lists numerous actions that are subject to mandatory reporting including “attempts to obtain classified or sensitive information by an individual not authorized to receive such information” and “requests for DoD information that make an individual suspicious, to include suspicious or questionable requests over the internet or SNS [social networking services].”

The directive employs the relatively new term “Foreign Intelligence Entity,” which includes non-governmental organizations based abroad that use intelligence techniques to gather US government information or to influence US policy.  The new phrase did not appear in the official Department of Defense Dictionary of Military and Associated Terms as recently as a year ago (pdf), though it is included in the latest edition of the Dictionary (pdf).

A Foreign Intelligence Entity is defined in the directive as “any known or suspected foreign organization, person, or group (public, private, or governmental) that conducts intelligence activities to acquire U.S. information, block or impair U.S. intelligence collection, influence U.S. policy, or disrupt U.S. systems and programs.  The term includes foreign intelligence and security services and international terrorists.”

Document Exploitation as a New Intelligence Discipline

A recent article in the Army’s Military Intelligence Professional Bulletin argued that Document and Media Exploitation, or DOMEX — which refers to the analysis of captured enemy documents — should be recognized and designated as an independent intelligence discipline.

“Without question, our DOMEX capabilities have evolved into an increasingly specialized full-time mission that requires a professional force, advanced automation and communications support, analytical rigor, expert translators, and proper discipline to process valuable information into intelligence,” wrote Col. Joseph M. Cox.

“The true significance of DOMEX lies in the fact that terrorists, criminal, and other adversaries never expected their material to be captured,” Col. Cox wrote.  “The intelligence produced from exploitation is not marked with deception, exaggeration, and misdirection that routinely appear during live questioning of suspects.”

See “DOMEX: The Birth of a New Intelligence Discipline” which appeared in the April-June 2010 issue (large pdf) of Military Intelligence Professional Bulletin, pp. 22-32.

The last six issues of Military Intelligence Professional Bulletin, the U.S. Army’s quarterly journal of intelligence policy and practice, are newly available through the Federation of American Scientists website.

Although the Bulletin is unclassified and approved for public release, the Army has opted not to make it publicly available online.  Instead, it was released under the Freedom of Information Act upon request from FAS .  The latest issues address topics such as HUMINT Training,  Cross-Cultural Competence, and Intelligence in Full-Spectrum Operations.

Not all of the articles in the Bulletin are of broad interest or of significant originality.  But many of them are informative and reflective of current issues in Army intelligence.

An Intelligence Community Directive (ICD 302) on “Document and Media Exploitation” (pdf) was issued by the Director of National Intelligence on July 6, 2007.

Defense Intelligence and Counterinsurgency

With its overwhelming emphasis on technical collection, U.S. military intelligence is poorly equipped to meet the requirements of the counterinsurgency mission, according to a recent study (pdf) by the Defense Science Board.

“Many, if not most, specific COIN [counterinsurgency] ISR [intelligence, surveillance, and reconnaissance] requirements are population-centric and are not exclusively solvable with hardware or hard, physical science scientific and technical (S&T) solutions,” the DSB report said.  “One senior intelligence officer with years of field experience pointed out that 80 percent of useful operational data for COIN does not come from legacy intelligence organizations.”

Among other things, “the defense intelligence community does not have the foreign language and culture depth and breadth necessary to plan and support COIN operations,” according to the DSB.

See “Counterinsurgency (COIN) Intelligence, Surveillance, and Reconnaissance (ISR) Operations,” Defense Science Board, February 2011 (released May 2011).