Posts from August, 2012

Fundamental Review Leads to Some Reductions in Secrecy

The classification guides that function as the framework for national security secrecy underwent a substantial overhaul during the past two years.  As a result of the Fundamental Classification Guidance Review, a large fraction of existing classification guidance has been eliminated, and at least some existing categories of classified information have been declassified.

Out of 3,103 classification guides, or compilations of classification instructions, that were reviewed by national security agencies, 869 were either cancelled or consolidated, the National Archives announced in a news release today.

The purpose of the Fundamental Classification Guidance Review, mandated by President Obama’s executive order 13526 (section 1.9), was “to ensure the guidance reflects current circumstances and to identify classified information that no longer requires protection and can be declassified.”

The newly revised guidance should provide increased clarity and specificity about what is to be classified, along with greater traceability in identifying the justification for classification.

But it is less clear that the Review will result in a diminished volume of classified information.

John Fitzpatrick, the director of the Information Security Oversight Office (ISOO), had asked agencies to address “how much information that was classified is no longer classified as a result of the Review.”

Despite his instruction, most agencies did not discuss this central issue in their reports to ISOO.  But a few of them did.

The Department of Homeland Security indicated that 157 previously classified subtopics “were determined to no longer require classification.”

The Central Intelligence Agency reported that “some previously classified information [is] now listed as ‘unclassified’” following the Fundamental Review.

“Several categories of telecommunications information previously classified will no longer be classified,” the State Department said in its report.

Although the Fundamental Review was supposed to incorporate the “broadest possible range of perspectives” (according to the 2010 ISOO implementing directive), most agencies did not consult persons outside their agency, and none of them provided for public input, as far as is known.  (By contrast, the Department of Energy’s 1995 Fundamental Classification Policy Review, which served as a prototype for the present Review, invited public comment at the beginning and the end of the process.)

It is a demonstrable fact that agencies left to their own devices will overclassify information or classify it unnecessarily.  Whenever outside review is permitted, even if it is just within the executive branch, agency classification decisions are regularly overturned, as the record of the Interagency Security Classification Appeals Panel consistently shows.

It follows that by limiting the scope of external review, and excluding public input altogether, the impact of the Fundamental Classification Guidance Review on curbing overclassification was more muted than it could have been.

Internet Firearm Sales, and More from CRS

New reports from the Congressional Research Service that Congress has declined to make publicly available include the following.

Internet Firearm and Ammunition Sales, August 28, 2012

Political Ads: Issue Advocacy or Campaign Activity Under the Tax Code?, August 29, 2012

U.S. Foreign-Trade Zones: Background and Issues for Congress, August 28, 2012

Critical Infrastructure Resilience: The Evolution of Policy and Programs and Issues for Congress, August 23, 2012

Stealing Trade Secrets and Economic Espionage: An Overview of U.S.C. 1831 and 1832, August 28, 2012

 

NRO Budget Request Reflects Internal, External Challenges

In its efforts to improve responsiveness to the needs of its customers, the National Reconnaissance Office this year planned to “provide intelligence data to warfighters in the field using mobile devices.”  Evidently this capability had not been widely available up to now.

That’s one of the slivers of information to be found in the NRO budget justification for FY 2012 that was released this week — in heavily redacted form — in response to a Freedom of Information Act request.

The NRO is the U.S. intelligence agency that builds, launches and operates intelligence satellites.

“The NRO acquires and operates satellites that provide constant global access to critical information otherwise unavailable to the President, his cabinet, other national leaders and numerous customers in the Defense and Intelligence communities,” explains the FY2012 NRO Congressional Budget Justification Book, which NRO submitted to Congress in February 2011.  “These satellites provide services in three broad categories:  GEOINT [geospatial intelligence], SIGINT [signals intelligence], and Communications.”

“Over the past 50 years, data collected by NRO systems has provided advance warning of military aggression, supported combat operations, and assisted arms control treaty verification.  More recently, data from NRO systems has been used to verify environmental treaties, support humanitarian relief efforts, identify WMD programs, and locate terrorists.”

Setting aside the salesmanship and the rhetoric of “striving for excellence” that is the idiom of budget requests, and allowing for the fact that perhaps 90% of the 450 page budget document remains classified, it is still possible to glean at least fragmentary insight into the current state of the NRO from the newly released budget document.  For example:

  •   The NRO workforce is aging.  “The number of experienced officers eligible or approaching eligibility for retirement is growing.  Of the current workforce, 53 percent are eligible or will become eligible to retire in the next 10 years.” (p. 10)
  •   As in other agencies, unauthorized disclosures and the “insider threat” are a renewed focus of attention.  NRO security personnel “conduct daily CI [counterintelligence] activities to include auditing, monitoring, and analyses [against] the insider threat” (p. 268).  In FY 2012, NRO proposed to “expand automation of IT to provide analysis-enabling auditing and monitoring of user activity on classified computer systems to detect anomalous behavior” (p. 3).
  •   NRO mission ground stations conduct “24 hour a day operations to continually apprise DoD, IC and National users of NRO systems’ status” while “maintaining awareness of and protection of NRO systems from environmental and manmade threats.”  The NRO ground stations provide “24 hour a day overhead SIGINT operations management capability on behalf of the IC” and are responsible for “allocating SIGINT satellite collection assets against intelligence targets in accordance with priorities and guidance established by the National SIGINT Collection Subcommittee” (p. 190).
  •   In FY 2012, the NRO Mission Support project “expects … to accomplish the following:  provide intelligence data to warfighters in the field using mobile devices;  [and] enhance the detection and tracking of maritime vessels” (pp. 261-262).
  •   The NRO security program anticipated that it would “complete 15,000 initial and periodic [security] clearance reviews” in FY 2012 (p. 267).
  •   The NRO spectrum management program said it would “provide immediate, emergency support in response to real-world frequency interference issues in operational scenarios” (p. 271).

Unlike most other intelligence agencies — and unlike the Department of Defense as a whole — the NRO conducts its finances in a manner that is susceptible to external audit.

“For the third year in a row, the NRO received a clean audit opinion on our Financial Statements, a truly unprecedented accomplishment within the IC,” said Ms. Betty Sapp, the new NRO Director, in congressional testimony earlier this year.

New Air Force Instruction on Geospatial Intelligence

The U.S. Air Force this month issued new guidance on “Geospatial-Intelligence (GEOINT).”  See Air Force Instruction 14-132, August 10, 2012.

The Instruction mandates that “All GEOINT activities will be conducted in compliance with applicable laws, policies, and directives.  They will be conducted in a manner that ensures legality and propriety and that preserves and respects privacy and civil liberties.”

Japan and the Trans-Pacific Partnership, and More from CRS

New reports from the Congressional Research Service that have not been made available to the public include the following.

Japan’s Possible Entry Into the Trans-Pacific Partnership and Its Implications, August 24, 2012

The Asia-Pacific Economic Cooperation (APEC) Meetings in Vladivostok, Russia:  A Preview, August 16, 2012

501(c)(3) Organizations:  What Qualifies as “Educational”?, August 21, 2012

The Budget Control Act of 2011:  Budgetary Effects of Proposals to Replace the FY2013 Sequester, August 24, 2012

US Arms Transfer Agreements Reach Record High

Arms transfers from the United States to other nations increased significantly over the past year, and exceeded previous levels, according to new data reported by the Congressional Research Service.

“In worldwide arms transfer agreements in 2011 — to both developed and developing nations — the United States dominated, ranking first with $66.3 billion in such agreements or 77.7% of all such agreements. This is the highest single year agreements total in the history of the U.S. arms export program,” the CRS report said. “Russia ranked second in worldwide arms transfer agreements in 2011with $4.8 billion in such global agreements or 5.6%. The value of all arms transfer agreements worldwide in 2011 was $85.3 billion, a substantial increase over the 2010 total of $44.5 billion, and the highest worldwide arms agreements total since 2004.”

The 85-page report is filled with an assortment of official arms sales data that was provided to CRS, but that is not generally made available otherwise.

The report was first reported in the New York Times. A copy was obtained by Secrecy News. See Conventional Arms Transfers to Developing Nations, 2004-2011, August 24, 2012.

 

Guidance on Nuclear Targeting is “Tightly Controlled”

U.S. government guidance on the targeting of nuclear weapons is perhaps the most tightly held of all national security secrets, and “fewer than twenty” copies of the President’s instructions on the subject are extant within the entire Department of Defense.

Following a November 2011 hearing of the House Armed Services Committee, Rep. Michael Turner (R-OH) asked “How many military and civilian personnel in the executive branch have full or partial access to nuclear employment and targeting guidance?”

In newly published responses to questions for the record, Under Secretary of Defense James N. Miller said the answer was “a very small group of personnel in the executive branch.”

“Even within the Department of Defense (DOD), access to this sensitive material is tightly controlled,” Dr. Miller added. “Within the Department of Defense, fewer than twenty copies of the President’s guidance are distributed in the Office of the Secretary of Defense, the Joint Staff, and U.S. Strategic Command.”

The nuclear weapons guidance issued by the Secretary of Defense and the Chairman of the Joint Chiefs to implement the President’s instructions is somewhat more broadly disseminated.

“Fewer than 200 copies of the most recent amplifying guidance issued by the Secretary of Defense were produced, and distribution was limited primarily to Office of the Secretary of Defense, the Joint Staff, U.S. Strategic Command, and other Combatant Commanders. The Chairman’s guidance is distributed more widely within DOD (fewer than 200 copies), as the document assigns responsibilities to several defense agencies and the intelligence community. Commander, U.S. Strategic Command must issue guidance to his planners and forces in the field, so distribution is somewhat wider because of that need.”

What about congressional access?  “How many personnel in the legislative branch have full or partial access to each level of guidance?”, Rep. Turner asked.

Dr. Miller declined to answer that question directly.

“There is a long history of debate about providing the legislative branch access to this material,” he said. “As a result, instances of providing access to a member of Congress and senior staff personnel have been quite limited and under restrictive terms.”

In fact, the history of debate over congressional access to nuclear targeting information was never conclusively resolved, as far as is publicly known.  In 2000, then-Sen. Robert Kerrey criticized the Department of Defense repeatedly for refusing to provide the information.

“As elected representatives of the people, and with a Constitutional role in determining national security policy, Congress should have an understanding of the principles underpinning our nuclear policy. Both the guidance provided by the President and the details of the SIOP [nuclear weapons targeting plan] are necessary for us to make informed national security decisions,” Sen. Kerrey said on the Senate floor on June 30, 2000.

Sen. Kerrey wrote to then-Secretary of Defense William Cohen seeking an explanation of the Department’s policy on congressional access to nuclear targeting information.  But no reply was ever received.

In the newly released questions for the record, which address a multiplicity of nuclear policy issues, Rep. Turner also asked “How many military personnel have full or partial access to STRATCOM’s OPLAN 8010?”, referring to the U.S. Strategic Command nuclear war plan.

“Full access to all portions of OPLAN 8010 is limited to our most senior leadership,” replied Gen. C. Robert Kehler, STRATCOM Commander.

For background on OPLAN 8010, see Obama and the Nuclear War Plan by Hans M. Kristensen, Federation of American Scientists, February 2010.

SCI Nondisclosure Agreement Requires Prepublication Review

If the former Navy SEAL who co-authored a new book about killing of Osama bin Laden signed a non-disclosure agreement for access to “sensitive compartmented information” (i.e., classified intelligence information), then he was obliged to submit his manuscript to the government for prepublication review even if he believed that it contained no classified information.

A sample SCI non-disclosure agreement that is used by the Department of Defense is here.

If the book did contain classified information, then the author could conceivably be subject to criminal prosecution under the Espionage Act.  But even if it did not contain classified information, its publication without prior review could be deemed a breach of contract, with the proceeds subject to seizure by the government.

The government’s authority to enforce a non-disclosure agreement in this way was affirmed by a federal court most recently in the case of USA v. Ishmael Jones.  In that case, Jones (the pseudonym of a former CIA officer) published his manuscript without completing the prepublication review process.

Last week, Adm. William H. McRaven of U.S. Special Operations Command condemned the disclosure of classified information by former special operators, as well as other forms of activism that tended to politicize the service.

“While as retired or former service members, they are well within their rights to advocate for certain causes or write books about their adventures, it is disappointing when these actions either try to represent the broader S.O.F. community, or expose sensitive information that could threaten the lives of their fellow warriors,” McRaven wrote in an email to all special operations personnel.

“We will pursue every option available to hold members accountable, including criminal prosecution where appropriate,” he wrote, as reported by Kimberly Dozier of the Associated Press.

“Today, U.S. Special Operations Forces are in 78 countries around the world supporting U.S. policy objectives,” Adm. McRaven told Congress last March.

The SOCOM budget request for FY2013 is $10.4 billion.  “The FY 2013 budget includes 21 construction projects in nine states, one overseas, and one at a classified location,” Adm. McRaven said in the 2012 SOCOM posture statement.

Presidential Claims of Executive Privilege, and More from CRS

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, August 21, 2012

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, updated August 17, 2012

Iraq: Politics, Governance, and Human Rights, updated August 21, 2012

An Overview of the “Patent Trolls” Debate, August 20, 2012

Crisis in Mali, and More from CRS

New reports from the Congressional Research Service on diverse topics of current interest are provided below.  Pursuant to congressional policy, CRS is prohibited from making these documents directly available to the public.

The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, August 16, 2012

Turkmenistan: Recent Developments and U.S. Interests, updated August 17, 2012

Pipeline Cybersecurity: Federal Policy, August 16, 2012

Gifts to the President of the United States, August 16, 2012

Health Insurance Exchanges Under the Patient Protection and Affordable Care Act (ACA), August 15, 2012

Crisis in Mali, August 16, 2012

JP Morgan Trading Losses: Implications for the Volcker Rule and Other Regulation, August 16, 2012

Why Some Fuel-Efficient Vehicles Are Not Sold Domestically, August 17, 2012

Armed Conflict in Syria: U.S. and International Response, updated August 20, 2012

The Palestinians: Background and U.S. Relations, updated August 17, 2012