Posts from December, 2011

Charter of Open Source Org is Classified, CIA Says

Updated below

Open Source Works, which is the CIA’s in-house open source analysis component, is devoted to intelligence analysis of unclassified, open source information.  Oddly, however, the directive that established Open Source Works is classified, as is the charter of the organization.  In fact, CIA says the very existence of any such records is a classified fact.

“The CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request,” wrote Susan Viscuso, CIA Information and Privacy Coordinator, in a November 29 response to a Freedom of Information Act request from Jeffrey Richelson of the National Security Archive for the Open Source Works directive and charter.

“The fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure,” Dr. Viscuso wrote.

This is a surprising development since Open Source Works — by definition — does not engage in clandestine collection of intelligence.  Rather, it performs analysis based on unclassified, open source materials.

Thus, according to a November 2010 CIA report, Open Source Works “was charged by the [CIA] Director for Intelligence with drawing on language-trained analysts to mine open-source information for new or alternative insights on intelligence issues. Open Source Works’ products, based only on open source information, do not represent the coordinated views of the Central Intelligence Agency.”

As such, there is no basis for treating Open Source Works as a covert, unacknowledged intelligence organization.  It isn’t one.

(Even if Open Source Works were engaged in classified intelligence analysis, the idea that its charter must necessarily be classified is a non-sequitur.  Illustrating the contrary proposition, the Department of Defense last week issued a new Instruction on “Geospatial Intelligence (GEOINT),” setting forth the policies governing that largely classified intelligence domain.)

Beyond that, it is an interesting question “why the CIA felt the need to establish such a unit given the existence of the DNI Open Source Center,” said Dr. Richelson.  The Open Source Center, the successor to the Foreign Broadcast Information Service, is the U.S. Government’s principal open source agency.  It is, naturally, a publicly acknowledged organization.

“An even more interesting question,” he added, is “why would the CIA, whose DI [Directorate of Intelligence] organization structure is published on its website, feel it necessary to refuse to confirm or deny the existence of this new open source component?”

The CIA’s extreme approach to classification policy is timely in one sense:  It provides a convenient benchmark for evaluating current progress in combating overclassification.

If the charter of CIA’s Open Source Works remains classified six months from now, when the Obama Administration’s Fundamental Classification Guidance Review will have completed its first cycle, that will be a decisive indication that the Review failed to eliminate even the most blatant examples of overclassification.

Update: On December 13, the CIA informed Dr. Richelson that its response to his FOIA request was “an administrative error,” and that the request would be processed.

When Does Public Disclosure Make Secrecy Moot?

The U.S. State Department insists that the publication of many thousands of classified diplomatic cables by WikiLeaks does not alter their classification status.  In response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union for 23 of the cables, the Department of State this week released redacted versions of 11 of them and withheld the other 12 in their entirety — even though the full text of all of them is readily available online.

In principle, the question of whether unauthorized disclosure of classified information is tantamount to declassification of that information is not new, although the WikiLeaks case presents it with new force.  The government has always contended, and courts have generally accepted, that unauthorized or unofficial disclosure does not imply or require declassification.

The “official acknowledgment by an authoritative source” of information that is already in the public domain adds a quantum of validity and may itself constitute “new information that could cause damage to the national security” the DC Circuit Court said in Afshar v. Department of State (1983).

Similarly, “there can be a critical difference between official and unofficial disclosures” in the “arena of intelligence and foreign relations,” the DC Circuit said in Fitzgibbon v. CIA (1990).

The Fitzgibbon ruling set forth three conditions that must be met in order for a prior disclosure to overcome a government claim of proper classification and to justify release:   (1) the information requested must be as specific as the information previously released;  (2) the information requested must match the information previously released;  and (3) the information requested must have been previously made public through an official and documented disclosure, i.e. not “leaked.”

Within the FOIA context, this restrictive construct all but shuts the door to an argument that prior public disclosures justify a mandatory release of classified information that has been withheld.  It seems designed to prevent new disclosures, not to enable them.  Without having researched the question in depth, I believe I may be the only FOIA litigant ever to use the Fitzgibbon criteria to compel an agency to disclose information that it wished to withhold.  And even then, I only received what I had already obtained independently.  See “Judge Orders CIA to Disclose 1963 Budget,” Secrecy News, April 5, 2005.

The WikiLeaks disclosures, however, represent a qualitatively new factual scenario because they involve not merely the release of “information” but of actual documents, whose authenticity is not in doubt.

Thus, a Zimbabwe political figure said last week that the Zimbabwe officials who were named in the WikiLeaks cables are like “lice” who will be dealt with at an appropriate time.  (“We will deal with ‘WikiLeaks lice’ appropriately – Sibanda,” Newsday [Harare], November 29, 2011.)  These ominous remarks took for granted that the cables are authentic.  Formal confirmation of their authenticity from the U.S. government at this point could hardly aggravate the situation and would be considered superfluous.

Interestingly, the law does admit the possibility — at least outside of the FOIA context — of an unofficial disclosure that is so widespread that any official acknowledgment becomes redundant and moot.

“One may imagine situations in which information has been so widely circulated and is so generally believed to be true, that confirmation by one in a position to know would add nothing to its weight,” the Fourth Circuit wrote in Alfred A. Knopf Inc. v. William Colby (1975).

But the court did not articulate specific criteria for determining when such imaginary situations had become a reality.  And it said that “appraisals of such situations by the judiciary would present a host of problems and obstacles.”

CRS Loses Several Senior Staffers

The Congressional Research Service gained a new Director this week, but it has recently lost several of its most experienced and accomplished analysts.

Librarian of Congress James Billington appointed Mary B. Mazanec to be the new CRS Director of the Congressional Research Service.  She has been serving as acting Director since the retirement of her predecessor, Daniel Mulhollan, last April.

“Dr. Mazanec has advanced degrees in law and medicine and brings a breadth of experience that will be valuable in leading CRS and ensuring that CRS continues to provide comprehensive and objective research and analysis that meets the needs of Members and staff,” the Librarian said in a December 5 news release.

But with the departure of numerous senior staff, CRS is also experiencing deeper changes that will leave it with diminished capacity to provide original analysis and insight to Congress and other would-be consumers.

The CRS Foreign Affairs, Defense and Trade division lost one intelligence policy analyst, Alfred Cumming, earlier this year.  Another, Richard Best, is retiring.  “Those positions will not be filled for the foreseeable future,” according to a CRS official.  Two other positions in the Asia section are also not going to be filled, the official said, due to budget constraints.

Last month, CRS Specialist Frederick M. Kaiser, author of hundreds of studies on government secrecy, congressional oversight and related issues, retired after more than three decades at CRS.  His expertise and his institutional memory could not be easily replaced even if there were a will and a budget to do so.  Senator Daniel Akaka (D-HI) paid tribute to Mr. Kaiser this week in the Congressional Record.

Bruce Bartlett, a conservative libertarian who is a former congressional staffer and Reagan Administration official, contended recently that congressional support agencies — such as CBO, GAO, CRS and, earlier, OTA — had been deliberately targeted by some Republican leaders.  As centers of nonpartisan analysis and evaluation, he said, these agencies are perceived by some as an obstacle to ideological control of congressional debate that must be weakened or eliminated. (“Gingrich and the Destruction of Congressional Expertise,” New York Times Economix blog, November 29, 2011.)

“It is essential that Congress not cripple what is left of its in-house expertise,” he wrote.

Tracking Cell Phones and Vehicles: The Legal Context

A new report from the Congressional Research Service explores ongoing legal debates over the tracking of private cell phones and vehicles by law enforcement agencies.

“It is undeniable that… advances in technology threaten to diminish privacy,” the CRS report says.  “Law enforcement’s use of cell phones and GPS devices to track an individual’s movements brings into sharp relief the challenge of reconciling technology, privacy, and law.”

The 22 page CRS report provides a survey of relevant Fourth Amendment law, federal electronic surveillance statutes and case law, pending GPS-vehicle tracking cases, and electronic surveillance legislation that is before Congress.

“The primary debate surrounding cell phone and GPS tracking is not whether they are permitted by statute but rather what legal standard should apply: probable cause, reasonable suspicion, or something less,” the report says.

A copy of the CRS report was obtained by Secrecy News.  See “Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law,” December 1, 2011.

Legislative Secrecy Declines, But Endures

Congress is the most transparent and publicly accessible branch of government, and yet there are many aspects of the legislative process that are opaque and off-limits to public awareness, according to a disquisition on legislative secrecy from the Congressional Research Service.

“Compared with the White House, the executive branch, and the Supreme Court, the U.S. Congress is the most transparent national governmental institution,” the CRS report said.  “Yet the congressional process is replete with activities and actions that are private and not observable by the public.”

“Both secrecy and transparency suffuse the lawmaking process,” the report said. “Legislative secrecy has clearly declined over the decades, but it has been part of the policymaking process from Congress’s very beginning, and it remains an integral aspect of the lawmaking process.”

“Today, Congress operates largely in the sunshine. Ironically, studies have shown that the more open Congress has become, the less the citizenry like what they see, hear, and read about the lawmaking process.”

The report describes the motivations and occasions for legislative secrecy, which it says can facilitate legislative negotiations, promote candor, and foster free deliberation.  The CRS report does not mention the congressional policy of denying direct public access to CRS reports, or the persistent public efforts to defeat that policy.

See “Congressional Lawmaking: A Perspective On Secrecy and Transparency,” November 30, 2011.

New Intelligence Directive on Congressional Notification

Director of National Intelligence James Clapper has issued a new Intelligence Community Directive on “Congressional Notification” (pdf) that generally encourages “a presumption of notification” to Congress regarding significant intelligence activities.

The November 16 directive, designated ICD 112, elaborates on the intelligence community’s responsibility to keep the congressional oversight committees “fully and currently informed” of U.S. intelligence activities, which is required by the National Security Act.

Among the types of activities that would normally warrant congressional notification, the directive says, are:

– intelligence activities that entail significant risk of exposure, compromise, and loss of human life;

– activities undertaken pursuant to specific direction of the President or the National Security Council, other than covert action (which is subject to a separate reporting requirement);

– a significant unauthorized disclosure of classified intelligence information;

– a conclusion that an intelligence product is the result of foreign deception or denial activity, or otherwise contains major errors in analysis;

– intelligence activities that are believed to be in violation of U.S. law; and so forth.

“Not every intelligence activity warrants written notification,” the directive says.  That determination is “a judgment based on all the facts and circumstances known to the IC element, and on the nature and extent of previous notifications and briefings to Congress on the same matter…. If it is unclear whether a notification is appropriate, IC elements should decide in favor of notification.”

The required notifications “shall contain a concise statement of the pertinent facts, an explanation of the significance of the intelligence activity, and the role of all departments and agencies involved in the intelligence activity.”

Secret Sessions of Congress

Congress has the constitutional authority to conduct its business in secret and to close its proceedings to the public whenever it deems secrecy necessary.  A new report from the Congressional Research Service reviews the justification, history and frequency of secret sessions of Congress.

“Since 1929, the Senate has held 56 secret sessions, generally for reasons of national security or for consideration of impeachment questions. On December 20, 2010, for example, the Senate met in closed session to discuss the New START Treaty with Russia,” the CRS report said.  “Since 1830, the House has met behind closed doors only four times: in 1979, 1980, 1983, and 2008.”

“The proceedings of a secret session are not published unless the relevant chamber votes, during the meeting or at a later time, to release them. Then, those portions released are printed in the Congressional Record.”  See “Secret Sessions of the House and Senate: Authority, Confidentiality, and Frequency,” November 30, 2011.