Posts from July, 2011

U.S. is “Incapable of Keeping a Secret,” Rumsfeld Concluded in 2005

In one of his trademark “snowflake” memoranda from 2005 that was made public this week, then-Secretary of Defense Donald Rumsfeld stated flatly that the government secrecy system was a failure.

“The United States Government is incapable of keeping a secret,” he wrote (pdf) on November 2, 2005.  “If one accepts that, and I do, that means that the U.S. Government will have to craft policies that reflect that reality.”

Unfortunately, he did not elaborate on this terse statement.  The memorandum was not addressed to anyone in particular, and the profound questions it raises were left hanging.  There was no known written response to the memo and, needless to say, there is no evidence of any subsequent shift to a post-secrecy orientation in government policy.

“Not to sound too cynical,” said a former official who served in the Bush Administration, “but I would add to Rumsfeld’s observation that not only is the U.S. incapable of keeping a secret but it is also incapable of fundamentally reforming the way it keeps secrets.  I know from a practical point of view, even after that snowflake, I found DoD to be one of the most recalcitrant organizations with which to deal,” he added (on a not-for-attribution basis).

But a current official disputed the premise of the Rumsfeld memo.  “We are capable of keeping secrets– the issue is how many and how long,” he said.  “The more we seek to protect and the longer we seek to protect it the less likely we will meet with success.  The classification system can’t be effective if we over-burden the system.”

This official said that the new Secretary of Defense, Leon Panetta, could still transform the military secrecy system in a meaningful way if he were to treat it as a “mission critical” instrument to be used sparingly and with precision rather than as an inherited bureaucracy that does not have to meet any performance standards at all.

Another current official pondered “What would change if one presumed that the U.S. government cannot keep a secret?  I doubt that many USG officials would say that we should therefore stop trying.  The most likely and positive conclusion might be that we should severely limit the number and kinds of secrets we seek to protect.”

In fact, that seems to be the conclusion that was reached by Secretary Rumsfeld himself in another startling snowflake (pdf) dated August 9, 2005 and addressed to Under Secretary of Defense for Intelligence (USD(I)), Stephen Cambone:

“What do you think about initiating a program of finding ways to reduce the number of things that are classified, and to speed up the process of declassification?”, Secretary Rumsfeld wrote.

Again, this memorandum had no known practical consequences.  Dr. Cambone did not immediately reply to an email inquiry from Secrecy News concerning his response to the Rumsfeld memo.

But it so happens that a focused effort “to reduce the number of things that are classified” is (or is supposed to be) underway right now throughout the executive branch, in the form of a Fundamental Classification Guidance Review (FCGR) that was required by President Obama’s executive order 13526 (section 1.9), which was issued in December 2009.

To date, there is little sign that the Review has made any progress at all in reducing the scope of the national security classification system.  But William A. Cira, the acting director of the Information Security Oversight Office, said that Pentagon classification officials were responding constructively to the Review requirement.

“We know they are moving forward on the FCGR process and they have already mapped out a plan for doing so.  In the near future we will be discussing the DoD FCGR plan in depth with the staff at USD(I), and it is our understanding that they will have much to tell us,” Mr. Cira said.  The FCGR process must be completed by all agencies that classify information no later than June 2012.

The two Rumsfeld snowflakes on classification policy were among more than 500 previously undisclosed memos that were posted on Secretary Rumsfeld’s website on July 12.

It is not known exactly what might have prompted Rumsfeld to issue these statements.  Then as now, leaks were in the air.  “The issue of leaks has been front and center in the news, in case some of you hadn’t noticed,” House Intelligence Committee chairman Pete Hoekstra told the Heritage Foundation on July 25, 2005.

Aside from their specific content, the Rumsfeld snowflakes have a couple of other noteworthy features.  First, they were marked FOUO, or “for official use only.”  In other words, they were produced for internal consumption, not to inspire a public conversation on secrecy policy.

Second, each snowflake is stamped “certified as unclassified [in accordance with]” the executive order on classification.  But there is no requirement in the executive order to “certify” records as unclassified.  Whoever did so was wasting his time, while diverting scarce resources from declassification and other legitimate information security programs.

A New Directive for the National Reconnaissance Office

Last month, Secretary of Defense Robert M. Gates issued a new DoD Directive (pdf) on the National Reconnaissance Office (NRO), the agency that builds, launches and operates U.S. intelligence satellites.  The new directive, which is unclassified, cancels and replaces an earlier directive (pdf) from 1964, which was originally classified Top Secret.

The new directive generally describes the mission, organization and management of the NRO, and does so with a fair amount of detail.  It makes explicit, for example, the fact that the NRO is funded through both the National Intelligence Program (NIP) and the Military Intelligence Program (MIP), reflecting the agency’s dual role in supporting national policymakers and providing support to military operations.

The directive also makes reference to the normally sensitive subject of intelligence liaison relationships, stating, for example, that the NRO Director should “leverage overhead reconnaissance capabilities of foreign partners with whom NRO has an established relationship….”

See DoD Directive 5105.23, “National Reconnaissance Office (NRO),” June 28, 2011.

The very existence of the NRO itself was considered a national security secret until September 1992, when it was declassified by then-NRO Director Martin Faga.  Some of his erstwhile colleagues “still haven’t forgiven me,” Mr. Faga said recently.

Drake to Ask for Probation at Sentencing Hearing

Former National Security Agency official Thomas A. Drake, who pled guilty to a misdemeanor charge of exceeding the authorized use of a government computer, will ask a federal court to sentence him to one year probation with community service at a sentencing hearing on Friday, July 15.

Mr. Drake, who is understood to have been a source for several Baltimore Sun stories that revealed NSA mismanagement, was indicted in April 2010 under the Espionage Act for allegedly mishandling classified information, as well as obstruction of justice and making false statements, charges that he denied.  In a breathtaking reversal last month, the prosecution abandoned all of the ten felony counts in the Drake indictment, and accepted a misdemeanor guilty plea instead.

Technically, however, the court could still sentence Mr. Drake to a maximum of a year in prison, though the government is not requesting more than a year of probation.

This week, Mr. Drake’s attorneys filed a sentencing memorandum to bolster his request for probation.

The document, with numerous attachments, testifies to Mr. Drake’s distinguished military service in the US Air Force and the US Navy Reserves, his exceptional professional achievements (with multiple commendations from NSA), his physical courage, his moral rectitude, and the high esteem in which he is held by his colleagues.  (The memorandum, filed under seal, was partially redacted to exclude personal information about Drake’s family and friends.)

Meanwhile, his attorneys argued, Mr. Drake has already suffered severely, even before being sentenced.  His professional career has been all but terminated.  He lost his clearance and the possibility of a federal pension.  He was fired from a teaching position at Strayer University as a direct consequence of the government’s felony indictment.  He has been uprooted from the community of his peers.  And he has been driven into debt.

“Friends and colleagues from all stages of his life resoundingly call Mr. Drake a hard-working, dedicated, and honest public servant who puts others first,” wrote public defenders James Wyda and Deborah L. Boardman.  “They herald his honesty and patriotism, and laud his commitment to family, citizenship, and the ideals of the Constitution.”

“Against the backdrop of Mr. Drake’s personal history, and in light of the suffering and punishment he already has endured as a result of his actions, incarceration is not an appropriate sentence in this case,” they wrote.  “A one-year probationary sentence, with a condition of community service, is the just punishment in this case, for this crime, and for this defendant.”

Judge Richard D. Bennett of the Eastern District of Virginia will preside over the July 15 sentencing hearing.

Sterling Seeks to Subpoena Senate Intel Staffers Over Leaks

Former CIA officer Jeffrey A. Sterling, who is suspected of leaking classified information to New York Times reporter James Risen, this week asked a court to issue subpoenas (pdf) for staff and records of the U.S. Senate Select Committee on Intelligence.  The move is part of a defense strategy to show that it was Senate staffers rather than Mr. Sterling who leaked the classified information in question.

“Mr. Sterling is charged with unlawfully disclosing classified information to a third party [i.e., Mr. Risen] not authorized to receive the information,” Sterling’s July 11 motion explained. “An obvious defense at trial will be that any disclosure to the third party was done by another person or by multiple individuals — and not by Mr. Sterling.”

“Specifically, Mr. Sterling spoke to staff members of the United States Senate Select Committee on Intelligence in March 2003 about the Classified Program underlying the charges in the Indictment. These conversations were all lawful. Discovery in this case has revealed that Mr. Sterling spoke to two Committee staff members, Donald Stone and Vicky Divoll, and that they briefed a third Committee staff member, Lorenzo Goco. Less than a month after Mr. Sterling’s conversation with the Senate staffers, Mr. Risen contacted the C.I.A. requesting comments for an article on Classified Program No. 1. The timing is highly suggestive that it was one of the staff members and not Mr. Sterling who unlawfully disclosed classified information.”

The subpoenas were first reported by Josh Gerstein in Politico (“Alleged CIA leaker wants to subpoena Senate and intel panel aides,” July 11).

Proposing a potential alternative source for the unauthorized disclosure, while a sensible tactic for the defense, might have the unintended consequence of increasing the pressure for Mr. Risen to testify.  Prosecutors are already urging the court to grant a subpoena for Risen to clarify the facts of the matter.  Even if he is not compelled to identify his source, he might still be pressed to confirm who was not his source.

Russia’s Closed Cities as Tourist Destinations

An article in the Russian edition of Forbes magazine this week somewhat facetiously considered the tourism potential of Russia’s secretive and tightly secured closed cities.

“In today’s Russia there are 42 closed administrative territorial entities — or ZATOs — surrounded by rows of barbed wire and guarded by armed patrols. They belong to the Ministry of Defense, Rosatom (State Corporation for Atomic Energy), and Roskosmos (Federal Space Agency),” the article (in Russian) said.

“A special pass is needed in order to gain access to the territory of a ZATO. This is most readily available to anyone who has close relatives resident in a closed city. A pass is also issued to people who have got a job in a ZATO or who have found themselves a husband or a wife among the local residents.”

“But there are also more circuitous routes, of course. From time to time some ZATOs stage cultural and sports events to which outside participants are invited. But the most desperate simply find holes in the fence or steal their way into a city along secret paths. In this context, admittedly, consideration has to be given to the fact that gaining unlawful access to the territory of a ZATO carries the risk of administrative punishment in the form of a fine and immediate expulsion from the territory.”

“Forbes has selected 10 closed cities in Russia that are worth a visit. Or at least worth the attempt.”  The profiled cities include Krasnoyarsk, Zelenogorsk, Kapustin Yar, Lesnoy, Mirnyy, Novouralsk, Ozersk, Sarov, Severomorsk, and Snezhinsk.

The enticing Snezhinsk “is full of mysterious artifacts that have been preserved from Soviet times: structures whose purpose is unknown, ventilation pipes that protrude from the ground in the very heart of the city, tunnels leading off into the unknown.”

The 2008 book “A Nuclear Family Vacation: Travels in the World of Atomic Weaponry” by Nathan Hodge and Sharon Weinberger included a chapter on Russia’s closed cities.

Pentagon Tightens Grip on Unclassified Information

In 2005, the U.S. Army issued a new field manual on the military use of dogs, which it said were being “employed in dynamic ways never before imagined.”  The field manual was approved for public release and marked for unlimited distribution.  See FM 3-19.17, “Military Working Dogs” (pdf), 6 July 2005.

But in May 2011, the same Army manual on military working dogs (redesignated as ATTP 3-39.34) was updated, and this time its distribution has been limited to DoD and DoD contractors only.  Public access to the document is barred.  At the same time, copies of the unrestricted 2005 edition have been removed from Army websites.  (A copy is still available through the Federation of American Scientists web site.)

The net loss of public access to information in this case illustrates a new trend that is at odds with the Obama Administration’s declared policy.  Although the President promised to create “an unprecedented level of openness in Government,” in practice new barriers to access to unclassified information continue to arise.

Last November, the Obama Administration issued an executive order on “Controlled Unclassified Information” that was intended to reverse “unnecessarily restrictive dissemination policies” involving unclassified information and to “emphasize… openness.” Among other things, the order was intended to eliminate the thicket of improvised access controls on unclassified information (such as “for official use only” and so forth) and to authorize restrictions on access only where required by law, regulation or government-wide policy.

But last month the Department of Defense issued a proposed new rule that appears to subvert the intent of the Obama policy by imposing new safeguard requirements on “prior designations indicating controlled access and dissemination (e.g., For Official Use Only, Sensitive But Unclassified, Limited Distribution, Proprietary, Originator Controlled, Law Enforcement Sensitive).”

By “grandfathering” those old, obsolete markings in a new regulation for defense contractors, the DoD rule would effectively reactivate them and qualify them for continued protection under the new Controlled Unclassified Information (CUI) regime, thereby defeating the new policy.

Even more broadly, the proposed rule says that any unclassified information that has not been specifically approved for public release must be safeguarded.  It establishes secrecy, not openness, as the presumptive status and default mode for most unclassified information.

“Unclassified Government information shall not be posted on websites that are publicly available or have access limited only by domain/Internet Protocol restriction,” the proposed rule baldly states at one point.

The breathtaking implications of the DoD proposal have come as a shock not only to those who still believe in the possibility of open government, but to the DoD contractors who are expected to implement the sweeping new policy.  See “Contractors resist DoD’s tougher info rules” by Sean Reilly, Federal Times, July 10.

Meanwhile, many executive branch agencies have not met their obligations to post basic agency information on their web sites, such as staff directories, reports to Congress, and congressional testimony, according to a new survey from Openthegovernment.org.

NARA Proposes New Rule on Declassification

A proposed new rule published for comment by the National Archives and Records Administration (NARA) last week would establish updated new procedures for the declassification of historical records containing national security information.

The proposed rule tracks fairly closely with President Obama’s December 2009 executive order 13526, and thus highlights some of the limitations of that order, especially with respect to the practice of “automatic declassification.”

In 1995, President Clinton issued executive order 12958 which stated that permanently valuable historical records that are 25 years old or older “shall be automatically declassified whether or not the records have been reviewed” unless they are specifically exempted.  This was a dramatic break with past practice, in which declassification and disclosure without prior review were practically unthinkable.

Unfortunately, that Clinton requirement was implemented imperfectly or not at all, and some of the sharper edges of automatic declassification have been blunted by the Bush and Obama Administrations (and by Congress).  Under the proposed new NARA rule, for example, non-exempt historical records can remain classified for as long as 35 years if they are part of an “integral file block” that also contains records that are merely 25 years old.  And if a collection of records more than 25 years old is discovered that was “inadvertently not reviewed,” that does not mean the records are automatically declassified as the executive order originally promised (“whether or not the records have been reviewed”).  Rather, those old records may remain classified for up to three more years to enable review.

Since these concessions to continued secrecy in the proposed NARA rule are specifically authorized by the President’s executive order, there is probably little possibility of altering them at this point.

But in other respects, the proposed NARA rule seems to deviate from and to fall short of the executive order.  For example, it does not even mention the President’s fundamental declaration that “No information may remain classified indefinitely” (EO 13526, sec. 1.5d).  So it does not even attempt to draw any consequences for declassification policy from this basic statement of principle — thereby diminishing the significance of the statement itself.

And except for an oblique reference to an “upcoming exemption expiration,” the proposed NARA rule is silent on the “fifty year rule” in the executive order, which requires that any records that are exempted from automatic declassification at 25 years old must be declassified by the time they reach 50 years (except where they would identify a confidential human source or reveal key design concepts for weapons of mass destruction).

Although the fifty year rule does not formally take effect until June 2013, it already has practical implications for declassification policy today.  For example, it means that NARA should not expend much effort on declassification review of records that are nearly 50 years old (or older), since these records are supposed to be automatically declassified without review in the near future.  And it means that efforts to identify any remaining exempted material (regarding confidential human sources or WMD design) in such 50 year old records need to get underway soon.

Public comments on the proposed NARA rule are due by September 6, 2011.

Govt Asks to Keep Risen Grand Jury Material Sealed

Government attorneys yesterday told a federal court that most of last year’s grand jury proceedings in which New York Times reporter James Risen was subpoenaed to testify should remain secret in the public interest.  The grand jury subpoena against Risen was ultimately quashed in a November 30, 2010 order (pdf) that was unsealed last week.

In a separate court order (pdf) last week, Judge Leonie M. Brinkema had asked the government to review Mr. Risen’s prior motion to quash the grand jury subpoena and the government motions filed in response, and to advise whether it would agree to have all of those grand jury pleadings unsealed and released in redacted, declassified form.  Doing so, she said, would help to inform the current prosecution of former CIA officer Jeffrey Sterling, in which Mr. Risen has again been subpoenaed.

“Given the significant legal issues raised in these pleadings and their relevance to the publicly filed case against Jeffrey Sterling, the public interest in access is strong and any further sealing should be kept to a minimum,” Judge Brinkema wrote on June 28.

The government attorneys yesterday rejected that view.

“The government has reviewed the grand jury pleadings, and respectfully believes that the need for grand jury secrecy continues to outweigh any public interest in disclosure,” they wrote (pdf).

Disclosure of the pleadings is unnecessary, they said, since “the legal issues raised in the grand jury pleadings are currently being litigated publicly through the government’s motion in limine (pdf) and James Risen’s motion to quash the issuance of a trial subpoena served upon him. The unsealing of this Court’s November 2010 Memorandum Opinion more than suffices to inform the public about the grand jury proceedings and puts the current litigation involving the trial subpoena issued to Risen in its proper context,” the July 6 response said.

Moreover, “unsealing all of the grand jury pleadings relating to the motion to quash carries considerable risks. Many indicted cases involve pre-indictment litigation that presents unique and significant legal issues, but such a rationale is not sufficient to overcome the strong public policy interests in secrecy. To allow the unsealing of grand jury pleadings on that basis alone would discourage prospective witnesses from testifying fully and freely before future grand juries. No witness would ever know if his or her testimony was associated with a future, significant legal issue and thus subject to disclosure,” the government response said.

Today, attorneys argued before Judge Brinkema over the current subpoena for Mr. Risen in the ongoing case of Jeffrey Sterling.  Prosecutors suggested that a failure to compel Mr. Risen to testify might force an acquittal of Mr. Sterling, reported Josh Gerstein in Politico.

Court Should Not Recognize “Good Leaks,” Govt Says

To admit the possibility of a “good leak” of classified information would undermine the entire classification system, government attorneys told a court (pdf) last week, and therefore it should not do so.

The government’s statement was presented in a response to New York Times reporter James Risen’s June 21 motion to quash a subpoena to compel him to testify in the case of Jeffrey A. Sterling, a former CIA officer who is accused of disclosing classified information to Risen without authorization.

In his motion to quash, Mr. Risen had urged the court to consider “the public interest in newsgathering, measured by the leaked information’s value” and the damage to the public interest which would ensue from compelling him to testify.

But the government said the court should do no such thing.

“[E]xplicitly recognizing ‘good leaks’ of classified information… would effectively destroy the system through which the country protects that information,” the government said in its July 1 response.

“It would encourage government employees who are provided access to classified information to betray their commitment to safeguard it by suggesting that they, too, should undertake their own independent analysis of the effect of their disclosure of that information should they desire to do so.  It would also provide a ready-made defense for every disgruntled intelligence community employee or contractor who discloses such information to the press because he harbors a grudge against the institution for which he works,” the government attorneys argued (p. 28).

From a different perspective, “good leaks” are a uniquely effective remedy to what President Obama once called “the problem of over classification.”  Unless and until overclassification can be curtailed through other means, some types of leaks serve as a necessary safety valve, especially when they reveal classified information involving criminal activity, misconduct or mismanagement.

In its response to Risen, the government argued forcefully against Risen’s invocation of a reporter’s privilege and urged the Court to require him to testify in the Sterling case.  The legal issues will be argued before the court at a July 7 hearing.  See related coverage in Politico and the Washington Post.