Posts from January, 2012

Agencies are Likely to Miss 2013 Declassification Deadline

More than two years ago, President Obama set a December 31, 2013 deadline for completing the declassification processing of a backlog of more than 400 million pages of classified historical records that were over 25 years old.  But judging from the limited progress to date, it now seems highly unlikely that the President’s directive will be fulfilled.

As of December 2011, following two years of operation, the National Declassification Center had completed the processing of only 26.6 million pages of the 400 million page backlog, according to the latest NDC semi-annual report.  If the Center increased productivity by a factor of ten, that would still be insufficient to achieve its goal.

The looming failure to comply with an explicit presidential order is a sign of the growing autonomy of the secrecy system, which to a surprising extent is literally out of control.

One of the obstacles to a more efficient declassification process is a 1999 statute known as the “Kyl-Lott” Amendment, which requires record collections to be certified as “highly unlikely” to contain classified nuclear weapons information known as Restricted Data or Formerly Restricted Data.  In many cases, today’s backlogged records were not certified as required by the originating agencies and therefore they must now undergo an additional review.

“This unexpected review step will certainly impact our ability to complete all declassification processing by the deadline,” according to the new semi-annual report from the National Declassification Center.

The need for interagency cooperation to deal with the backlog of historical records awaiting declassification was anticipated by President Obama.  “The Secretaries of State, Defense, and Energy, and the Director of National Intelligence shall provide the Archivist of the United States with sufficient guidance to complete this task,” he wrote in a December 29, 2009 memo.

And in fact, agencies have devoted increased efforts to declassification.  “Once the enormity of the Kyl-Lott challenge was realized, many participating agencies have stepped up to ensure that their records meet this requirement,” according to NDC Director Sheryl J. Shenberger.

But under current procedures, it is hard to see any trajectory that will lead to elimination of the declassification backlog by December 2013.

One alternative way to proceed would be for the National Archives to seek legislative relief from the certification requirements of the Kyl-Lott Amendment, particularly with respect to so-called Formerly Restricted Data (FRD).  Most of the historical nuclear weapons information in the FRD category is of no special sensitivity and its presence should no longer pose an obstacle to expedited declassification.  In those cases where the information is sensitive, such as weapons design information, the Department of Energy is currently seeking authority to remove it from the FRD category and to redesignate it as Restricted Data.  This would further strengthen the case for amending Kyl-Lott to eliminate screening for FRD, thereby simplifying the declassification problem.

U.S. Investment in the Middle East, and More from CRS

The possibility of increasing U.S. investment in the Middle East as a way to encourage democratic political transitions was examined in a new report from the Congressional Research Service.  See U.S. Trade and Investment in the Middle East and North Africa: Overview and Issues, January 20, 2012.

Other new or updated CRS reports that have not been made readily available to the public include these:

Australia: Background and U.S. Relations, January 13, 2012

European Union Enlargement, January 26, 2012

New Leak Case Relies on 1982 Law on Intelligence Identities

Updated below

Former CIA officer John Kiriakou this week became the latest person to be charged under the Espionage Act with unauthorized disclosures of classified information.  But unlike the previous defendants, Mr. Kiriakou was also charged with violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert intelligence officer to a journalist.

The Intelligence Identities Protection Act was enacted in 1982 to combat the efforts of Philip Agee and his colleagues to expose CIA personnel around the world.  The Act made it a felony to reveal the names of “covert agents,” i.e. intelligence officers who are under cover and whose identities are classified information.

But until now, the Act has never been used in a contested prosecution.  “There do not appear to be any published cases involving prosecutions under this act, despite some high-profile incidents involving the exposure of U.S. intelligence agents,” according to a Congressional Research Service report on the subject from last year.

(There has, however, been one conviction under the Act.  In 1985, former CIA clerk Sharon Scranage pleaded guilty to providing classified information in violation of the Act concerning U.S. intelligence operations in Ghana.  She served two years in jail.)

The Intelligence Identities Protection Act is one of the very few classification-related statutes that purport to apply to anyone, not only to government officials who possess authorized access to classified information.  The language of the Act explicitly indicates that it also applies to private individuals — reporters, researchers, or anyone else — who expose covert agents, if they do so as part of a “pattern of activities” and with the requisite knowledge and intent.

In the present case, Mr. Kiriakou is charged with providing the name of a “covert agent” in response to inquiries from a reporter, “Journalist A,” who then passed that information on to defense attorneys at Guantanamo.  (The attorneys used the information in a classified pleading that they filed in 2009, which is what first brought the unauthorized disclosure to official attention.)

An FBI affidavit attached to the criminal complaint against Kiriakou states repeatedly that no laws were broken by the defense team that received the classified information.  The FBI notably does not volunteer the same assurance concerning Journalist A (whose name is not yet on the public record), who actively solicited the proscribed information from Kiriakou and forwarded it to the defense attorneys.

But Journalist A would presumably not be subject to the Intelligence Identities Protection Act because his efforts were not part of a systematic effort to expose classified identities. (The name of the covert agent that he allegedly elicited and conveyed to the defense team at Guantanamo has not been publicly disclosed.)

According to the Congressional Research Service report, the Act “would appear to preclude the prosecution of a recipient of covered information, whether solicited or not, who publishes the information but has not engaged in a prohibited ‘pattern of activities’ intended to disclose the names of covert agents.”

The CRS report also makes the curious observation that “It is not an offense for… a covert agent to disclose his or her own identity.”  See Intelligence Identities Protection Act, January 28, 2011.

Mr. Kiriakou is the sixth individual to be charged in the Obama Administration’s unprecedented campaign against leaks of classified information to the media, following Shamai Leibowitz, Jeffrey Sterling, Thomas Drake, Bradley Manning and Stephen Kim.  Among other things, the Administration’s aggressive pursuit of leaks represents a challenge to the practice of national security reporting, which depends on the availability of unauthorized sources if it is to produce something more than “authorized” news.

Update: The Intelligence Identities Protection Act was criticized in a April 6, 1982 op-ed by then-Senator Joseph Biden entitled “A Spy Law That Harms National Security.” (h/t Historiographic Anarchy)

Domestic Use of Drones is Well Underway

The use of unmanned aerial systems (UAS) within the United States is certain to increase in the years to come, as a new Army policy has recently made clear.  (“Army Foresees Expanded Use of Drones in U.S. Airspace,” Secrecy News, January 19.)  But in fact the use of unmanned aircraft or drones within U.S. airspace has already advanced to a degree that is not widely recognized.

As of 2010, the Federal Aviation Administration had already issued hundreds of “certificates of authorization” (COAs) for the domestic use of drones.

“Right now, today as we sit here, we have 251 certificates of authorization for unmanned aircraft, 140 of them are DOD related,” said Hank Krakowski of the FAA at an informative Senate hearing in September 2010.  “We have not rejected or denied any DOD COAs in 2010, and we keep moving forward.”

On the other hand, Mr. Krakowski cautioned, “While UASs offer a promising new technology, the limited safety and operational data available to date does not yet support expedited or full integration into the NAS [National Airspace System]. Because current available data is insufficient to allow unfettered integration of UASs into the NAS–where the public travels every day– the FAA must continue to move forward deliberately and cautiously, in accordance with our safety mandate.”

“Unmanned aircraft systems [were] originally and primarily designed for military purposes,” he noted. “Although the technology incorporated into UASs has advanced, their safety record warrants caution. As we attempt to integrate these aircraft into the NAS, we will continue to look at any risks that UASs pose to the traveling public as well as the risk to persons or property on the ground.”

See “The Integration of Unmanned Aircraft Systems (UASs) Into the National Airspace System (NAS): Fulfilling Imminent Operational and Training Requirements,” Senate Committee on Commerce, Science and Technology, September 13, 2010 (published September 2011).

In the 2012 National Defense Authorization Act, Congress included language requiring a report on “the integration of unmanned aerial systems into the national airspace system” (h/t Emptywheel).

The legality of the use of drones in CIA targeted killing programs is among the topics that is explored in the brand new issue of the Journal of National Security Law and Policy on the subject of covert war.

Presidential Signing Statements, and More from CRS

President Obama has used “signing statements” to take exception to provisions of law enacted by Congress with significantly less frequency than did President George W. Bush.  He has also abandoned reference to the “unitary executive” concept that was favored by the Bush Administration.

In most other respects, however, the Obama Administration’s use of signing statements is consistent and continuous with recent past practice, according to a newly updated report from the Congressional Research Service.  The report reviewed the basis for signing statements, their legal implications, and the controversy that has surrounded them.  See Presidential Signing Statements: Constitutional and Institutional Implications, January 4, 2012.

Some other new or newly updated CRS reports that have not been made readily available to the public include the following (all pdf).

Legal Issues Associated with the Proposed Keystone XL Pipeline, January 23, 2012

“Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits, January 23, 2012

Federal Aid to Roads and Highways Since the 18th Century: A Legislative History, January 6, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, January 6, 2012

Iran Sanctions, January 6, 2012

Court Says Review of Security Clearance Dispute is “Prohibited”

A government agency’s decision to revoke an employee’s security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week.

Judge James C. Cacheris of the Eastern District of Virginia dismissed a lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National Geospatial-Intelligence Agency (NGA).  Mr. Hegab alleged that his security clearance had been revoked by NGA “based solely on [his] wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization.”  (“Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says,” Secrecy News, October 6, 2011.)

The NGA disputed the claim and moved to dismiss the lawsuit.  Mr. Hegab, represented by attorney Sheldon I. Cohen, responded in opposition on December 14.

But in his January 19 opinion, Judge Cacheris said that it didn’t matter even if the plaintiff’s allegations were true, because the court lacked the authority to review the underlying bases of the dispute.

“A determination of whether Hegab’s security clearance was revoked due to legitimate national security concerns or, as Hegab alleges, constitutionally impermissible bases would necessarily require a review of the merits of NGA’s decision. Absent clear congressional directive, which Hegab fails to identify, such a review is flatly prohibited by Egan and Fourth Circuit precedent,” Judge Cacheris wrote.

Egan” here refers to the 1988 U.S. Supreme Court decision in the case of Department of the Navy v. Egan, which has often been invoked in support of broad and unreviewable executive branch authority in national security policy.  A critique of Egan and its subsequent application was presented by constitutional scholar Louis Fisher, then of the Law Library of Congress, in “Judicial Interpretations of Egan,” November 13, 2009.

Afghanistan Casualties, and More from CRS

New or updated reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

Afghanistan Casualties: Military Forces and Civilians, January 18, 2012

FY2012 National Defense Authorization Act: Selected Military Personnel Policy Issues, January 5, 2012

Spectrum Policy in the Age of Broadband: Issues for Congress, January 5, 2012

The Federal Bureau of Investigation and Terrorism Investigations, December 28, 2011

Economic Downturns and Crime, December 19, 2011

DoD Support to Foreign Disaster Relief

The Department of Defense has prepared a guide (large pdf) for military personnel who are engaged in foreign disaster relief operations, an endeavor which arises with some frequency.

“The U.S. Government (USG) responds to approximately 70-80 natural disasters across the globe each year. In approximately 10-15 percent of these disaster responses, the Department of Defense (DoD) lends support to the overall USG effort.”

“DoD disaster assistance can range from a single aircraft delivering relief supplies, to a fullscale deployment of a brigade-size or larger task force. Though the overall percentage of disasters requiring DoD support is relatively small, these disasters tend to be crises of the largest magnitude and/or the greatest complexity.”

The new guide “offers an overarching guide and reference for military responders in disaster relief operations.”  See “Department of Defense Support to Foreign Disaster Relief,” GTA-90-01-030, 13 July 2011.

New Doctrine on Intelligence Support to Military Operations

The Joint Chiefs of Staff have produced updated doctrine on intelligence support to military operations.  The new doctrine (pdf) reflects changes in intelligence organizations, roles and missions.

Among other things, the new publication introduces the term “biometric-enabled intelligence” or BEI.  “BEI is derived from the collection, processing, and exploitation of biometric signatures; the contextual data associated with those signatures; and other available information that answers a commander’s or other decision maker’s information needs concerning persons, networks, or populations of interest.”

See Joint Publication 2-01, “Joint and National Intelligence Support to Military Operations,” 05 January 2012.

 

Army Foresees Expanded Use of Drones in U.S. Airspace

The Army issued a new directive last week to govern the growing use of unmanned aircraft systems (UAS) or “drones” within the United States for training missions and for “domestic operations.”

“The Army’s unmanned aircraft systems represent emerging technology that requires access to the National Airspace System,” wrote Army Secretary John M. McHugh in a January 13 memorandum.

Towards that end, the Army produced a revised policy on UAS operations to support “expanded UAS access to the National Airspace System.”  A copy of the new policy was obtained by Secrecy News.  See Army Directive 2012-02, January 13, 2012.

Much of the Army’s UAS activity will be devoted to UAS operator training conducted at or near military facilities, the policy indicates.  But beyond such training activities, the military also envisions a role for UAS in unspecified “domestic operations” in civilian airspace, according to a 2007 Memorandum of Agreement between the Department of Defense and the Federal Aviation Administration, which regulates domestic air traffic.

The 2007 Memorandum, which is appended to the new Army directive, was said to “allow, in accordance with applicable law, increased access for DoD UAS into the elements of the NAS [National Airspace System] outside of DoD-managed Restricted Areas or Warning Areas.”

The 2007 agreement was intended to “ensure DoD UAS assets have NAS access for domestic operations, including the War on Terror (WOT)…. This guidance applies to all DoD UAS, whether operated by Active, Reserve, National Guard, or other personnel.”

A prior edition of the Army’s “Unmanned Aircraft System Flight Regulations,” which will be updated to incorporate the latest policy, can be found on the Federation of American Scientists web site here.

The Electronic Frontier Foundation last week filed a Freedom of Information Act lawsuit seeking information on domestic drone operations.