Posts from October, 2012

Intelligence Spending Drops for a Second Year

For the second year in a row and for only the second time in the post-9/11 era, total intelligence spending declined last year to $75.4 billion, according to figures released yesterday by the Director of National Intelligence and the Department of Defense (Bloomberg, Wash Times, Reuters).

Total spending had peaked in FY2010 at $80.1 billion, and declined in FY2011 to $78.6 billion.

“We are looking at some pretty steep budget cuts across the board in the Intelligence Community,” DNI James Clapper told the Senate Intelligence Committee last January.

“Never before has the Intelligence Community been called upon to master such complexity on so many issues in such a resource-constrained environment,” he said then. “We’re rising to the challenge by continuing to integrate the Intelligence Community, … taking advantage of new technologies, implementing new efficiencies, and, as always, simply working hard. But, candidly, maintaining the world’s premier intelligence enterprise in the face of shrinking budgets will be difficult. We’ll be accepting and managing risk more so than we’ve had to do in the last decade.”

But while intelligence budgets are shrinking, they remain very high by historical standards, having more than doubled over the past decade.

Total intelligence spending is comprised of two budget constructs:  the National Intelligence Program (NIP) and the Military Intelligence Program (MIP).  The large defense intelligence agencies — including NSA, NRO, and NGA — receive funding through both budget programs.

For the first time ever in FY2012, both the budget request for the NIP ($55 billion) and the subsequent budget appropriation ($53.9 billion) have been disclosed.  (The MIP request was disclosed for FY2013, but not for FY2012.)  This is something of a breakthrough in intelligence classification policy.

Hypothetically (or so it was long asserted), a hostile intelligence analyst could derive valuable insight from the gap between each year’s budget appropriation, or between the appropriation and the request, to the detriment of U.S. security.

“Disclosure of the budget request or the total appropriation reasonably could be expected to cause damage to the national security in several ways,” wrote Director of Central Intelligence George Tenet in 1999 in a successful effort to keep the budget secret at that time. “First, disclosure of the budget request reasonably could be expected to provide foreign governments with the United States’ own assessment of its intelligence capabilities and weaknesses. The difference between the appropriation for one year and the Administration’s budget request for the next provides a measure of the Administration’s unique, critical assessment of its own intelligence programs. A requested budget decrease reflects a decision that existing intelligence programs are more than adequate to meet the national security needs of the United States. A requested budget increase reflects a decision that existing intelligence programs are insufficient to meet our national security needs. A budget request with no change in spending reflects a decision that existing programs are just adequate to meet our needs.”

But this longstanding official position has now lost any semblance of cogency.

“In my view, this argument does not stand up to even a few minutes of serious analysis,” wrote former 9/11 Commission executive director (and Romney campaign adviser) Philip Zelikow in the latest issue of the CIA journal Studies in Intelligence.

But with serious analysis evidently in short supply, total intelligence budget secrecy remained the norm for many decades until recently.

Court Orders FBI to Release Withheld Information

As often happens, the Federal Bureau of Investigation invoked national security a few years ago to justify withholding certain information from a Freedom of Information Act requester named Deirdre McKiernan Hetzler.

But as rarely happens, a court last month critically assessed the FBI national security claim and ordered the Bureau to release some of the withheld information.

Ms. Hetzler, acting pro se (i.e. without an attorney), had requested records concerning her deceased father, who had once been the subject of an FBI investigation.  The FBI provided her with some records but withheld others, stating that they remained classified in order to protect an intelligence activity.

But after reviewing the withheld records in camera, Judge Michael A. Telesca of the Western District of New York determined that some of the information contained in them was not exempt from disclosure under FOIA.  The FBI had been withholding it under the FOIA’s national security exemption even though it was actually unclassified or declassified.

“The Court is not persuaded that Defendants [the FBI and the Justice Department] have carried their burden of showing that disclosure of this information could cause serious damage to national security,” Judge Telesca wrote in a September 6, 2012 opinion.  He therefore ordered the FBI to reprocess the request and to release the information to Ms. Hetzler as specified in his ruling.

The Court here acted as a check on the normally unconstrained official tendency to classify and withhold information.  That is what judicial review is supposed to do, though it doesn’t happen very often.

Earlier this year, Judge Richard W. Roberts of the DC District ordered the U.S. Trade Representative to release a classified document to the Center for International Environmental Law (CIEL) because he found that the document was not properly classified.

The USTR “failed to provide a plausible or logical explanation of why disclosure of [the document] reasonably could be expected to damage United States foreign relations,” he wrote in his opinion ordering release.

The government has appealed that ruling.  Judge Roberts “inappropriately second-guessed the Executive’s expertise in the uniquely sensitive area of foreign relations,” the government said in its September 17 appeals brief.

No, on the contrary, CIEL responded in its own brief to the appeals court this week, Judge Roberts did exactly what the FOIA requires.

“A district court reviewing [an agency claim that a document is classified and exempt from disclosure] must give substantial weight to the agency’s explanations, but must not simply acquiesce in the agency’s determination,” CIEL attorneys wrote.

“Congress explicitly ‘stressed the need for an objective, independent judicial determination, and insisted that judges could be trusted to approach the national security determinations with common sense, and without jeopardy to national security’,” they wrote, citing prior FOIA case law.

The document that is being contested in this case is a one-page memorandum that presents the US government’s legal interpretation of the phrase “in like circumstances.”

The government says that because the document was shared confidentially with other governments as part of a (now-concluded) free trade negotiation, its involuntary disclosure would undermine the confidentiality of diplomatic negotiations.

Judge Roberts said this argument was not compelling “since the United States would be revealing its own position only” and would not be disclosing foreign government information that had been provided in confidence.

Indeed, “There is no expectation that a government is required to keep its own negotiating positions confidential from its own citizens,” said former US trade negotiator Daniel Magraw in a statement cited by CIEL.

CIEL said that “Under USTR’s interpretation, USTR could withhold any document — even a document whose release would otherwise cause absolutely no harm — simply by entering into a confidentiality arrangement and arguing that the breach of that arrangement would undermine trust and cause damage to US foreign relations; the withholding would be insulated from judicial review.”

“Fortunately, FOIA limits what an agency can make confidential,” CIEL wrote in its appeals brief.

A date for oral argument before the DC Circuit Court of Appeals has not yet been set.

An Updated Catalog of Army Weapon Systems

The U.S. Army has just published the 2013 edition of its annual Weapon Systems Handbook, which is filled with updated information on dozens of weapon systems, the military contractors who produce them, and the foreign countries that purchase them.

So one learns, for example, that the RQ-11B Raven Small Unmanned Aircraft System is marketed to Denmark, Estonia, Lebanon, and Uganda, while the United States sells artillery ammunition both to Israel and to Lebanon.

An appendix provides an informative breakdown of military industry contractors by weapon system and by the state where the contractor is located.

“The systems listed in this book are not isolated, individual products. Rather, they are part of an integrated Army system of systems designed to equip the Army of the future to successfully face any challenges,” according to the Handbook introduction.

“After 10 years of combat, today’s Army is significantly more capable than the Army of 2001. As we draw down from Iraq and Afghanistan, we must remain flexible, adaptable, and agile enough to respond and meet the needs of the combatant commanders.”

“Our objective is to equip and maintain an Army with the latest most advanced weaponry to win and return home quickly.”

Privacy & Civil Liberties Oversight Board Invites Public Input

The long-dormant Privacy and Civil Liberties Oversight Board (PCLOB) announced that it will hold its first public meeting next week and it invited members of the public to provide input to help shape the Board’s near-term agenda.

“In anticipation of setting the agenda of issues on which the Board will focus its attention, the Board would welcome the views of nongovernmental organizations and members of the public,” stated a notice in the October 23 Federal Register.

The PCLOB was created in response to a recommendation of the 9/11 Commission that “there should be a board within the executive branch to oversee… the commitment the government makes to defend our civil liberties.”

By statute, the PCLOB is mandated to “(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and (2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”

In response to the announcement of next week’s meeting, we wrote in to propose that the PCLOB should review the government’s problematic use of Section 215 of the USA Patriot Act. “The use of Section 215, the so-called ‘business records’ provision, is the subject of intense and unresolved controversy that warrants the Board’s attention,” we suggested.

Senators Ron Wyden and Mark Udall have stated that “most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.”  If so, the members of the PCLOB can be stunned on behalf of most Americans by virtue of the security clearances and right of access that they possess.

For background on the origins and development of the PCLOB, see Privacy and Civil Liberties Oversight Board: New Independent Agency Status, Congressional Research Service, August 27, 2012.

Federal Support for Academic Research, and More from CRS

Newly updated reports from the Congressional Research Service that Congress has not made publicly available include the following.

Federal Support for Academic Research, October 18, 2012

Unfunded Mandates Reform Act: History, Impact, and Issues, October 22, 2012

Terrorism and Transnational Crime: Foreign Policy Issues for Congress, October 19, 2012

Managing the Nuclear Fuel Cycle: Policy Implications of Expanding Global Access to Nuclear Power, October 19, 2012

U.S. Sanctions on Burma, October 19, 2012

Burma’s Political Prisoners and U.S. Sanctions, October 19, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, October 18, 2012

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, October 18, 2012

Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress, October 19, 2012

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, October 18, 2012

Kiriakou Pleads Guilty in Leak Case

This morning former CIA officer John Kiriakou pleaded guilty to one count of disclosure of information identifying a covert agent, a violation of the Intelligence Identities Protection Act.

“When KIRIAKOU disclosed the identity of Officer A to Journalist A, KIRIAKOU acted willfully in that defendant knew the disclosure was illegal,” according to a Statement of Facts approved and signed by Mr. Kiriakou today.

Under the terms of a plea agreement, the parties agreed that a prison term of 30 months would be “the appropriate sentence in this case.”  Other charges against him, including several counts under the Espionage Act, were dismissed.

By foregoing a trial, Mr. Kiriakou loses an opportunity to try and persuade a jury that his motives were benign, and that the harm to national security resulting from his disclosure was negligible and insignificant.  But he gains an early resolution of the case, which could otherwise drag on for months and years, as well as a sentence that would likely be much shorter than if he were to be found guilty at trial.

(FBI news release).

“Negative Reciprocity” Emerges in the Security Clearance System

In the world of security clearances for access to classified information, the term “reciprocity” is used to indicate that one executive branch agency should ordinarily recognize and accept a security clearance that has been granted by another executive branch agency.

This is not just a nice, cost-efficient thing to do, it is actually a requirement of law.  Under the 2004 intelligence reform law, “all security clearance background investigations and determinations… shall be accepted by all agencies.”

This requirement for mutual recognition and acceptance applies equally to the higher order clearances of the intelligence community, where reciprocity is intended to promote employee “mobility” throughout the intelligence system, according to the 2009 Intelligence Community Directive 709.

So possessing a clearance from one agency should simplify the process of access approval at another agency.  But the opposite is not supposed to be true.  If an agency refuses for some reason to recognize the clearance granted by another agency, that refusal is not supposed to incur loss of clearance in the original agency.

Officially, such “negative reciprocity” is not an authorized, legitimate security clearance practice.  And yet there are signs that it is being adopted within the Department of Defense Office of Hearings and Appeals (DOHA), which rules on contested security clearance cases.

A new paper by attorney Sheldon I. Cohen describes a series of DOHA rulings in which a perverse form of negative reciprocity has been used to justify the denial or revocation of a security clearance, to the obvious detriment of due process.

“While the burden of proof has always been placed on the employee by the DOHA Appeal Board to show why he or she should be granted a security clearance, until now there was a modicum of a right to confrontation, and a right to challenge the evidence presented by the government,” Mr. Cohen wrote.

But in a ruling he describes, “anonymous redacted reports and other agency’s decision are enough to deny or revoke a DoD clearance regardless of contrary evidence.”

In a series of recent decisions, the DOHA Appeal Board “has accepted unsigned, unsworn, summary statements from unidentified persons in government agencies [that are] in direct conflict with live testimony at a hearing to deprive or revoke security clearances of government contractor employees.”

To avoid or limit the fallout of negative reciprocity, Mr. Cohen advises DoD employees and contractors to immediately appeal any adverse clearance decision, “at least to get [their] side of the issues on the record.”  Left unchallenged, it appears that adverse decisions by other agencies will be presumed reliable by DOHA and that any later attempt to rebut them “will most probably be rejected.”

See “Has the Defense Office of Hearings and Appeals Become a Star Chamber Court?” by Sheldon I. Cohen, October 19, 2012.

The Department of Defense last week published a three-volume “DoD Sensitive Compartmented Information (SCI) Administrative Security Manual,” DoD Manual 5105.21, October 19, 2012.

Congressional Oversight, and More from CRS

Newly updated reports from the Congressional Research Service which Congress has not made publicly available include the following.

Congressional Oversight, October 17, 2012

Contemporary Developments in Presidential Elections, October 18, 2012

U.S. International Trade: Trends and Forecasts, October 19, 2012

President of the United States: Compensation, October 17, 2012

Peru in Brief: Political and Economic Conditions and Relations with the United States, October 18, 2012

Libya: Transition and U.S. Policy, October 18, 2012

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, October 17, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, October 18, 2012


Intelligence Imagery Set to be Disclosed in 2013

A massive quantity of historical intelligence satellite imagery from the KH-9 HEXAGON program is being declassified and will be made public in a series of releases that are scheduled over the coming year, intelligence community officials say.

Declassification of intelligence satellite imagery languished for years after President Clinton ordered the release of product from the Corona, Argon and Lanyard missions in the 1995 executive order 12951.  Although the Clinton order also required the periodic review of imagery from other missions, that requirement was effectively ignored by intelligence agencies and neglected by congressional oversight.

But in a May 2010 memorandum Director of National Intelligence Dennis C. Blair ordered the “re-establishment” of the declassification review of intelligence imagery — though it had never been officially disestablished — with a particular focus on imagery from satellite systems that were deemed obsolete.

In January 2011, DNI James R. Clapper formally declared that the KH-9 HEXAGON program was obsolete, and that declassification review of all program imagery should therefore commence.  KH-9 HEXAGON was operational from 1971 to 1984.

“The process to declassify imagery pursuant to EO 12951 began shortly after DNI Blair’s May 26, 2010 memorandum and has been ongoing, in earnest, with the goal of releasing as much imagery as possible to the public, consistent with national security,” said Michael G. Birmingham of the Office of the Director of National Intelligence. “Accordingly, The KH-9/HEXAGON system was declared obsolete in January 2011 and a phased declassification of its imagery has ensued.”

More than two years after the Blair memorandum, however, next to nothing has yet been made public.

“The notable challenges to this effort are the sheer volume of imagery and the logistics involved in cataloging the imagery and moving it to archive,” Mr. Birmingham told Secrecy News.

“For context, and to grasp the scope of the project, the KH-9/HEXAGON system provided coverage over hundreds of millions of square miles of territory during its 19 successful missions spanning 1971-1984.  It is a daunting issue to address declassification of the program specifics associated with an obsolete system such as the KH-9, which involves the declassification of huge volumes of intelligence information gathered on thousands of targets worldwide during a 13 year time period.”

Daunting or not, the large bulk of the KH-9 imagery is expected to be released, with only perhaps 5% or so remaining classified.

“There is a schedule of multiple deliveries with final delivery of imagery scheduled for September 2013,” Mr. Birmingham said.

Within the intelligence community, the National Geospatial-Intelligence Agency is the executive agent for imagery declassification.  NGA public affairs did not respond to questions about its declassification program.  [Correction:  The comments provided by Mr. Birmingham were coordinated with NGA public affairs and represent a joint response to our inquiry from ODNI and NGA.]

Historian Anna K. Nelson, RIP

We were sad to learn that Professor Anna K. Nelson, a tenacious and effective advocate for improved public access to national security records, passed away last month.

For decades, Prof. Nelson argued for improved declassification practices in almost every venue imaginable, from congressional hearings to the most obscure and transient advisory bodies.  As a professor of history at American University, she insisted that government records were public property and that access to such records was one of the foundations of good citizenship.

Among many other posts, she served as a presidentially-appointed member of the JFK Assassination Records Review Board, which was tasked to oversee the declassification of records concerning the assassination of President Kennedy.  Because of the perseverance of Dr. Nelson and her colleagues, that Board was uniquely productive in overcoming longstanding barriers to declassification, particularly those pertaining to intelligence agency records.

Nevertheless, she was habitually pessimistic about the prospects for meaningful secrecy reform.

“Given past performance, it is highly unrealistic to assume that agencies, particularly Defense and the CIA, will be completely forthcoming or that the Archives will ever question agency decisions,” she wrote in a 2000 letter to Congress. “Agency declassification of selected, heavily redacted records will not serve the public interest. It will only breed more suspicion.”

Prof. Nelson also spoke out in defense of robust investigative reporting on national security matters.  In 2008, for example, she submitted a declaration of behalf of New York Times reporter James Risen, arguing that a grand jury subpoena against him in the pending leak case against former CIA officer Jeffrey Sterling should be quashed.

“If Mr. Risen and other investigative journalists are unable to report effectively on matters of intelligence, the historical record will be incomplete, if not erroneous,” Dr. Nelson wrote.

“Although our own books and articles are stuffed with footnotes, we historians understand that investigative journalists, as observers of the present, must protect their sources. If they do not, the American people will never learn about corruption, incompetence, excessive government secrecy, flaws in homeland security, or disastrous decisions made by policy makers who are advised by their intelligence chiefs,” she wrote. “We must depend upon journalists and journalists must be permitted to depend upon confidential sources.”