Posts from July, 2012

Anti-Leak Measures in Senate Bill Target Press, Public

The Senate Intelligence Committee markup of the FY2013 Intelligence Authorization Act, which was officially filed yesterday, devotes an entire title including twelve separate provisions to the issue of unauthorized disclosures of classified information, or leaks.

But several of those provisions aim to disrupt the flow of unclassified information to the press and the public rather than to stop leaks of classified information.

As reported in the Washington Post today, one of the proposed measures (section 506 of the bill) would dictate that only agency leaders could present background briefings to the press.  Other agency personnel, such as intelligence analysts, would be barred from providing any background information to the press, even when such information is unclassified.

Background briefings are essential “because they help journalists understand the full context of a story, get key details right, and ensure that individuals or the United States as a whole will not be harmed by the publication of incorrect information,” according to the Sunshine in Government Initiative, a press advocacy coalition.

Questioned by the Post, Senate Intelligence Committee chair Sen. Dianne Feinstein acknowledged that she had no evidence that such briefings, which are prized by reporters as valuable sources of information, had contributed to unauthorized disclosures.  And yet they would be forbidden.

See “Anti-leak measure targets background briefings” by Greg Miller, Washington Post, July 31.

Other provisions in the new bill were also roundly criticized by public interest groups concerned with access to government information.

A provision to prevent former government officials from providing paid commentary to news media outlets on intelligence matters is very likely unconstitutional, said Kate Martin of the Center for National Security Studies in a new analysis of the bill.

“The over-breadth of this provision in prohibiting commentary and analysis even when no classified information is disclosed would violate the First Amendment,” Ms. Martin wrote. “Indeed the provision seems drafted in order to chill public discussion of information that is not classified rather than being narrowly tailored to simply target disclosures of classified information.”

Another provision (in section 511) would grant intelligence agency heads the authority to unilaterally revoke the pension of an employee if the agency head “determines” that the employee has violated his or her non-disclosure obligations.

This section “would give intelligence agency heads nearly unrestrained discretion to suppress speech critical of the intelligence community– even after an employee has resigned or retired from an intelligence agency– and to retaliate against disfavored employees or pensioners, including whistleblowers,” wrote the Project on Government Oversight and several other public interest organizations in an open letter to the Senate Committee yesterday.

Fundamentally, the Senate bill “changes the relationship between the press and the federal government,” according to the Sunshine in Government Initiative.

Drafted in secret and without the benefit of any public hearing, the Senate bill includes provisions that are “crude and dangerous,” the Washington Post editorialized today.

The bill was approved by the Senate Intelligence Committee by a vote of 14 to 1, with Sen. Ron Wyden in opposition.  The text of the bill is here.

The accompanying Committee report including commentary on each provision and Sen. Wyden’s dissent may be found here.

Trade with Sub-Saharan Africa, and More from CRS

Newly updated reports from the Congressional Research Service that Congress has not authorized for broad public distribution include the following.

U.S. Trade and Investment Relationship with Sub-Saharan Africa: The African Growth and Opportunity Act and Beyond, June 26, 2012

The Global Climate Change Initiative (GCCI): Budget Authority and Request, FY2010-FY2013, July 27, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, July 26, 2012

Housing for Persons Living with HIV/AIDS, July 3, 2012

Federal Pollution Control Laws: How Are They Enforced?, July 7, 2012

Cuba: Issues for the 112th Congress, July 20, 2012

Defense, Critique of NSA Classification Action Released

A persistent controversy involving allegations of overclassification reached a new level of intensity on Friday when the National Security Agency released its explanation for the disputed classification of an NSA email message that was used to support an Espionage Act prosecution.

Also cleared for release on Friday was the 2011 complaint filed by former secrecy czar J. William Leonard which presented a withering critique of the NSA classification decision.

The dispute concerns the validity of the classification of an internal NSA email message entitled “What a Wonderful Success!” that was found in the home of former NSA official Thomas Drake and that served as the basis for a felony charge against him, which was ultimately dismissed.  The email message, which was formally declassified in 2010, was itself publicly released the week before last.

On the surface, at least, the contents of the “What a Wonderful Success!” email message appear harmless and and even banal.  But a newly-disclosed NSA “expert disclosure letter” dated November 29, 2010 said that the mail message was properly classified at the Secret level because “the information contained therein reveals classified technical details of NSA capabilities and a specific level of effort and commitment by NSA.”

That sounds impressively ominous.  But it is false and misleading, according to J. William Leonard, who previously served as the nation’s most senior classification oversight official.  He also served as an expert for the defense in the Drake case.

“As a plain text reading of the ‘What a Success’ document reveals, this explanation is factually incorrect– it contains absolutely no technical details whatsoever,” wrote J. William Leonard, the former director of the Information Security Oversight Office, in a complaint he filed with the current ISOO director, John Fitzgerald, a year ago.

As for the line about revealing “a specific level of effort and commitment by NSA,” Mr. Leonard wrote, “it is also factually incorrect in view of the fact that the document is absolutely devoid of any specificity.”

Instead, “all that is revealed in this otherwise innocuous ‘rally the workforce’ missive is multiple unclassified nicknames with absolutely no reference to the classified purposes, capabilities, or methods associated with the programs or other classified events or initiatives represented by the unclassified nicknames.”

A second newly-disclosed NSA letter dated March 7, 2011 proposed a different rationale for classification of the email message: “This document also discussed NSA efforts related to a malicious computer attack by an external actor or third party on a U.S. government computer system….  The fact that a specific malicious computer activity had been found on a U.S. government computer system or network, and the U.S.’s identification of and/or response to the malicious activity, was classified as SECRET. Unauthorized disclosure… of the success or failure of a malicious computer activity against a U.S. government computer system would provide a determined adversary insight into the strengths and/or vulnerabilities of U.S. government computer systems or networks and allow a more focused intrusion.”

Mr. Leonard concurred that “specific information associated with a malicious attack on a U.S. government computer system could be classified.”  But, he said, “no such information is contained” in the NSA email message.  Moreover, if it had contained such information, “it should rightfully continue to be classified to this day,” which it has not been.

In short, the NSA rationale for classification of the “What a Wonderful Success” email message appears vulnerable to independent scrutiny even — or especially — from a leading proponent of the classification system.

In his formal complaint to the current ISOO director, Mr. Leonard stressed that together with classification authority comes a responsibility to exercise that authority properly, and that “Section 5.5 of the [executive order on classification] treats unauthorized disclosures of classified information and inappropriate classification of information as equal violations of the Order subjecting perpetrators to comparable sanctions.”

In an email message to Secrecy News, Mr. Leonard said he was not particularly urging that the individual who originally composed and classified the email should be sanctioned.  Rather, he said that it was the senior officials who reviewed the email and allowed it to be used as a basis for a felony prosecution who had violated the public trust and needed to be held accountable.

“Through their conduct, these high level officials at both NSA and DoJ have displayed contempt for the critical national security tool of classification. If these individuals are not held accountable for this abuse of the classification system, I cannot imagine any other circumstance warranting accountability for improper classification of information, thus rendering that provision of the executive order utterly feckless.”

The current efforts in the executive branch and in Congress to combat unauthorized disclosures of classified information suffer from a related failing to distinguish between legitimate and illegitimate secrets, he said.

“Notwithstanding the recent plethora of ‘anti-leak’ initiatives, the Government appears unwilling to take one of the most effective and obvious steps they can to protect classified information, i.e. ensure that only truly sensitive information is protected by the classification system in the first place.”

Mr. Leonard’s complaint is still pending at the Information Security Oversight Office, said the current ISOO director, John Fitzpatrick.

“I have great respect for Bill Leonard and admire his high ideals for the classification system,” Mr. Fitzpatrick said in an email message this morning.  “With regard to his complaint, I hesitate to comment in depth, as it is my intent to provide him with a response directly when all inquiries are complete.  I will say that the Order provides clear guidance for resolving the classification questions in his complaint, though it is less clear on the interaction of such issues in the context of criminal prosecution.  It is my aim to address both.”

The story was first reported a year ago in “Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 1, 2011.

“The more that classification is used to hide the trivial, inconvenient or embarrassing, the less useful it is for genuine national security secrets,” the Washington Post wrote in an editorial on Saturday about Mr. Leonard’s complaint.  See “Is the U.S. classification system dysfunctional?”, July 28, 2012.

US Army on Military Mountaineering

The U.S. Army has published an updated training manual on military mountaineering (very large pdf).

“Mountains exist in almost every country in the world and almost every war has included some type of mountain operations,” the manual states. “This pattern will not change; therefore, Soldiers will fight in mountainous terrain in future conflicts. Although mountain operations have not changed, several advancements in equipment and transportation have increased the Soldiers’ capabilities.”

From bowline knots to glacier traverses and emergency evacuations, the 300-page manual covers the basic techniques and essential skills of mountaineering.  It is intended as a training aid and naturally cannot serve as a substitute for training by an experienced instructor.  To the contrary, “Improper use of techniques and procedures by untrained personnel may result in serious injury or death.”

See Military Mountaineering, Training Circular 3-97.61, July 2012.  See, relatedly, Mountain Operations, Field Manual 3-97.6, November 2000.

For military doctrine and training in other environments see:

Desert Operations, Field Manual 90-3, August 1993

Jungle Operations, Field Manual 90-5, August 1982

Cold Region Operations, ATTP 3-97.11, January 2011

The Executive Budget Process, and More from CRS

New reports from the Congressional Research Service that Congress has not made readily available to the public include these.

The Executive Budget Process: An Overview, July 27, 2012

“Amazon” Laws and Taxation of Internet Sales: Constitutional Analysis, July 26, 2012

The Obama Administration’s Proposal to Establish a National Network for Manufacturing Innovation, July 25, 2012

Moving to a Territorial Income Tax: Options and Challenges, July 25, 2012

An Overview and Comparison of Senate Proposals to Extend the “Bush Tax Cuts”: S. 3412 and S. 3413, July 25, 2012

State, Foreign Operations, and Related Programs: FY2013 Budget and Appropriations, July 23, 2012

Military Service Records and Unit Histories: A Guide to Locating Sources, updated July 26, 2012

Senate Intelligence Committee Adopts a Dozen Anti-Leak Measures

The Senate Intelligence Committee’s markup of the 2013 intelligence authorization bill includes 12 provisions that are intended to combat unauthorized disclosures of classified information.

The proposed steps, which are of varying weight and severity, include:

  • a requirement to notify Congress when intelligence information is disclosed to the public (outside of the FOIA or the regular declassification review process) and to maintain a record of all authorized disclosures of classified information
  • a requirement to establish formal procedures for leak investigations
  • a requirement to assess procedures for detecting leaks, including expanded use of polygraph testing in other parts of the executive branch
  • a prohibition on cleared personnel (or formerly cleared personnel for up to a year after employment) serving as paid consultants or commentators to a media organization regarding intelligence matters
  • a requirement that only certain designated intelligence community officials may communicate with the media
  • a requirement for all intelligence community employees to report any contacts with the media
  • a requirement for the Attorney General and the DNI to submit a report to Congress on possible improvements to current procedures governing leak investigations
  • establishment of provisions to require surrender of federal pension benefits as a penalty for unauthorized disclosures
  • a provision to prohibit security clearances for individuals who make unauthorized disclosures of covert action information

“The culture of leaks has to change,” said Committee Chair Sen. Dianne Feinstein in a news release. “Leaks of classified information regarding intelligence sources and methods can disrupt intelligence operations, threaten the lives of intelligence officers and assets, and make foreign partners less likely to work with us.”

In several respects, the proposed new measures are not a dramatic departure from the status quo.  Unauthorized disclosures are already barred by non-disclosure agreements that all cleared personnel must sign.  Unauthorized contacts between intelligence personnel and the press are already discouraged or prohibited.  The Director of National Intelligence has already ratcheted up leak investigations and started an insider threat detection program.

Significantly, the proposed anti-leak provisions would not amend the Espionage Act.  They would not make all disclosures of classified information a felony.  They would not impose restrictions on the unauthorized receipt of classified information, or penalize publication of such information (although one provision invites the Attorney General to reconsider limitations on subpoenas to members of the media).

And yet there is something incongruous, if not outrageous, about the whole effort by Congress to induce stricter secrecy in the executive branch, which already has every institutional incentive to restrict public disclosure of intelligence information.

In an earlier generation of intelligence oversight, leaks led to leak investigations in executive agencies, but they also prompted substantive oversight in Congress.  When Seymour Hersh and the New York Times famously reported on unlawful domestic surveillance in December 1974, the urgent question in Congress was not how did Hersh find out, or how similar disclosures could be prevented, but what to do about the alarming facts that had been disclosed.

In contrast, while pursuing leaks and leakers, today’s Senate Intelligence Committee has not held an open public hearing for six months. The Committee’s investigative report concerning CIA interrogation practices from ten years (and two presidential terms) ago has still not been issued.  Upon publication — perhaps this fall — it will essentially be a historical document.

Most fundamentally, the Committee’s new draft legislation errs by treating “classification” as a self-validating category — i.e., if it’s classified, it warrants protection by definition — rather than as the flawed administrative instrument that it is.

As far as the Committee is concerned, the unauthorized disclosure of any classified information — even the substance of a constitutional violation that was recently committed by a US intelligence agency — would constitute a punishable offense, regardless of its public policy significance.

Last Friday, the DNI agreed to declassify the bare fact of such an actual violation, in response to a request by Senator Ron Wyden (as reported by Wired, but altogether overlooked in the Committee’s latest report on FISA last month).  This disclosure by the DNI would apparently trigger the proposed new requirement to notify Congress of public releases of intelligence information since it was “declassified for the purpose of the disclosure” — which is just silly.

“The whole notion of classification in this building has degenerated into a joke, most reporters and a lot of officials would agree,” said Tony Capaccio of Bloomberg News at a Pentagon press briefing on Tuesday.  He asked how the Pentagon planned to distinguish between legitimate secrets and spurious secrets when monitoring news stories for leaks.

“What steps are you going to be taking to make sure when you analyze these news stories that it’s really classified-classified versus B.S.-classified information?”

“I don’t have the answer yet, Tony,” replied Pentagon press spokesman George Little.

Neither does the Senate Intelligence Committee.

The full version of the FY2013 Senate intelligence bill and the accompanying report is expected to be filed on Friday.  The proposed anti-leak provisions “are the product of work over the past several weeks within the Committee, in discussion with the Executive Branch, in consultation with the House Intelligence Committee, and reflecting input from nongovernmental organizations,” according to the Senate Intelligence Committee.

U.S. “Secretly” Circumvents Somalia Arms Embargo

In apparent violation of an arms embargo on Somalia that it helped to impose 20 years ago, the United States is providing clandestine military support to Somali security services without notifying United Nations monitors as required by the embargo.

That is among the findings of the UN Somalia Eritrea Monitoring Group, as reported by Eli Lake in “Obama’s Not-So-Secret Terror War,” The Daily Beast, July 24.

The UN Monitoring Group report “illustrates how President Barack Obama’s often-secret war against al-Qaeda can sometimes conflict with his administration’s commitment to work cooperatively with the U.N.,” wrote Mr. Lake.

“Non-compliance [with the arms embargo] by Member States and International Organizations has become a growing problem in Somalia over the past year,” the UN report said, citing 144 undocumented flights “of a military nature” carried out by 12 member states, including the U.S.

The U.S. does provide some acknowledged support to the Somali National Army in accordance with international agreements.

However, the new UN report said, “The Government of the United States is also carrying out in Mogadishu and in Puntland extensive programmes in support of Somali security sector institutions without any prior approval of the Committee.”

Specifically, for example, “a United States Government intelligence agency has been providing technical assistance, training and equipment to the Somali National Security Agency for several years.”  In a January 9, 2012 speech, the Somali “NSA Director General Ahmed Moallin Fiqi thanked the United States Government for its assistance to his service.”

Yet officially, “the Government of the United States does not acknowledge any form of direct support to the Somali National Security Agency or any other Somali agency.”

Details of various presumed US covert operations were presented in the UN report, as first reported by the Daily Beast.  A copy of the confidential report to the UN from members of the Monitoring Group on Somalia and Eritrea is posted here.

Justice Department Defends Use of State Secrets Privilege

“The Government has invoked the state secrets privilege sparingly and appropriately,” the Department of Justice said in a 2011 report to Congress that was released this week.

The 8 page report describes the features of the internal process for determining whether to assert the state secrets privilege in a particular case, including the standards and procedures for validating the use of the privilege.

“The Department has applied and will continue to apply these procedures faithfully in reviewing and defending the invocation of the privilege,” the report stated. “The Department believes that good faith adherence to the standards and procedures outlined above will ensure the privilege is invoked in an appropriately narrow set of circumstances.”

Furthermore, “while invocation of the privilege may result in the dismissal of some claims, the Department’s policy seeks to avoid that result whenever possible, consistent with national security interests.”

The report provides a summary of two cases in which the state secrets privilege was asserted, Shubert v. Obama and Al-Aulaqi v. Obama.

The Justice Department report to the Senate Judiciary Committee on the state secrets privilege was transmitted to Congress on April 29, 2011, but it does not seem to have been made public before now.

The 2011 report is described as “the first periodic report to congressional committees” on state secrets cases.  “The Department will provide future reports on a periodic basis regarding cases in which the Government has invoked the privilege on behalf of departments or agencies, explaining the basis for the decision in each case.”

But a Justice Department official said this morning that there have been no subsequent reports to date.

A Post Office in Honor of CIA Officer Gregg Wenzel

The House of Representatives roused itself yesterday to name a post office in upstate New York after CIA officer Gregg Wenzel, who died in a car accident in Ethiopia in 2003 while under cover.

“When a man has given his life, as Gregg David Wenzel did, to protect our American liberties, honoring him through the tradition of naming a post office for his extraordinary service to our country is both fitting and inspiring,” said Rep. Nan Hayworth (R-NY).

Henceforward (or upon enactment), “The facility of the United States Postal Service located at 787 State Route 17M in Monroe, New York, shall be known and designated as the ‘National Clandestine Service of the Central Intelligence Agency NCS Officer Gregg David Wenzel Memorial Post Office’.”

Soviet Camouflage, Concealment and Deception

“The Soviet Union has developed a doctrine of ‘maskirovka’ which calls for the use of camouflage, concealment and deception (CC&D) in defense-related programs and in the conduct of military operations,” wrote President Ronald Reagan in the recently declassified 1983 National Security Decision Directive (NSDD) 108.

“Several recent discoveries reveal that the Soviet maskirovka program has enjoyed previously unsuspected success and that it is apparently entering a new and improved phase.  Many of these discoveries resulted only after concentrated and intensive examination of intelligence accumulated over many years,” the Directive said.

“I have decided that a more aggressive and focused U.S. program is essential to better understand and counter Soviet CC&D activities,” President Reagan wrote.

Most but not all of the two-page NSDD 108 was declassified in August of last year and made available through the Reagan Presidential Library.  A copy of the directive is available here (with thanks to Michael Ravnitzky).