Posts from October, 2012

U.S. Foreign Assistance to Pakistan, and More from CRS

Last month, Secretary of State Hillary Clinton informed Congress that U.S. national security interests required a waiver of statutory limitations on security aid to Pakistan.  “The Secretary’s accompanying justification for the waiver was delivered in classified form,” a newly updated report from the Congressional Research Service noted, adding that the waiver “appeared extremely difficult to justify” in view of Pakistan’s uneven cooperation with U.S. and NATO forces.  See Pakistan: U.S. Foreign Assistance, updated October 4, 2012

Some other Congressional Research Service products that have not been made readily available to the public include the following.

Jordan: Background and U.S. Relations, updated October 3, 2012

Federal Grants-in-Aid Administration: A Primer, October 3, 2012

Temporary Assistance for Needy Families (TANF): Welfare-to-Work Revisited, October 2, 2012

Sequestration: A Review of Estimates of Potential Job Losses, October 2, 2012

New Declassification Portal at the National Archives

The National Archives has set up a new online portal that provides an overview of declassification activity in and around the Archives, with input from the National Declassification Center, the Public Interest Declassification Board, the Presidential Libraries, and the Interagency Security Classification Appeals Panel (ISCAP).

The new section on ISCAP declassification decisions is of particular interest, since it provides links to the documents that have been newly declassified at the direction of the ISCAP, which receives appeals from the public for release of documents that agencies have declined to declassify.  Documents declassified through the ISCAP process in the past year include excerpts of several Presidential Daily Briefs from the 1960s, intelligence reports on various topics, and several documents on strategic nuclear forces.

The documents were posted in response to Section 5.3(b)(4) of President Obama’s Executive Order 13526, which required that the ISCAP “appropriately inform senior agency officials and the public of final Panel decisions on appeals under sections 1.8 and 3.5 of this order.”

The release of the latest collection of documents through ISCAP is commendable, and its publication online is more than welcome.

And yet it is not entirely satisfactory, nor does it seem to comply with the spirit or the letter of the executive order.  That’s because while the newly posted documents are the products of ISCAP decisions, they are not the decisions themselves.  And those decisions have not been released.

By definition, every document released through ISCAP represents an error or a misjudgment by classifiers in the originating agency, who previously refused to release it to a requester.  Obviously, if the originating agency had released it, there would have been no appeal to ISCAP, and thus no occasion for an ISCAP decision to declassify.

But what was the error in each particular case?  Why exactly did ISCAP overrule the classifiers in the originating agency and order that the document be released?  And most important:  what are the lessons of each ISCAP decision for future agency classification and declassification activity?

These questions have no immediate answer.

The Executive Order stated clearly (section 3.1i) that “agencies shall consider the final decisions of the [ISCAP] Panel” in conducting their own declassification programs.  But without any articulation of the bases for the ISCAP decisions, there is nothing for agencies to consider.  All that can be said with confidence is that the individual document that has been released can no longer be withheld.  And we knew that already.

It seems that ISCAP does not prepare formal opinions to justify its actions.  It holds discussions among its interagency membership, and then it votes.

But if the ISCAP process is to be more than a retail declassification operation, producing a meager couple of dozen declassified documents per year, then it needs to do something more.  One way to proceed would be for ISCAP to issue a concise Record of Decision for each case.  It could describe the original agency position against disclosure, the ISCAP’s assessment of that position, and the logic of its decision to overrule the agency and declassify the document, in whole or in part.

In this way, the Panel’s impressive efforts to correct agency classification errors and misjudgements would have a better chance of propagating throughout the system.

“The ISCAP decisions site is a work in progress, and will be further refined to better serve the needs of our users,” according to an NDC blog entry on the site.

2010 Military Intelligence Budget Request Declassified

The Department of Defense this week released a redacted version of the budget justification for the FY 2010 Military Intelligence Program (MIP).

“The MIP sustains all programs, projects or activities that support the Secretary of Defense intelligence, counterintelligence, and related intelligence responsibilities and provides capabilities to meet the warfighters’ operational and tactical requirements whenever and wherever needed,” the document states.

The MIP budget justification for FY 2010, which was submitted to Congress in 2009, presents dozens of individual military intelligence programs.  While budget figures have been censored, along with various other classified matters, the summary descriptions of most of the individual MIP programs were released more or less intact.

The document (large pdf) was provided to the Federation of American Scientists in response to a Freedom of Information Act request.

“In the last several years, we have embarked on a fundamental change to the concept of defense intelligence – one that balances the unique role of support to the warfighter with the recognition that today’s security environment crosses traditional organizational domains,” the budget document says.

“The deep integration of defense intelligence into the larger Intelligence Community, the evolution of our collaboration with homeland defense counterparts, and the fostering of committed international partnerships are all outcomes of this fundamental change,” wrote James R. Clapper, then-Under Secretary of Defense (Intelligence) in his introduction to the budget justification.

In FY 2010, Congress appropriated $27 billion for the Military Intelligence Program.  The FY 2013 request for the MIP was $19.2 billion.  The budget appropriation for FY 2012 is to be disclosed by the end of this month.

Pentagon Sets New Framework for Security Policy

The Department of Defense this week established a new Defense Security Enterprise that is intended to unify and standardize the Department’s multiple, inconsistent security policies.

The new security framework “shall provide an integrated, risk-managed structure to guide DSE policy implementation and investment decisions, and to provide a sound basis for oversight and evolution.”

The Defense Security Enterprise, launched October 1 by DoD Directive 5200.43, is a response to the often incoherent and internally contradictory state of DoD security policy.

An Inspector General report earlier this year said that there were at least 43 distinct DoD policies on security that could not all be implemented together.

“The sheer volume of security policies that are not coordinated or integrated makes it difficult for those at the field level to ensure consistent and comprehensive policy implementation,” the DoD IG wrote.  (“DoD Security Policy is Incoherent and Unmanageable, IG Says,” Secrecy News, September 4, 2012.)

But under the new Defense Security Enterprise, “Standardized security processes shall be implemented, to the maximum extent possible and with appropriate provisions for unique missions and security environments,” the DoD directive said.

The new structure is supposed to “ensure that security policies and programs are designed and managed to improve standards of performance, economy, and efficiency.”

But the directive does not explain how to proceed if “performance, economy, and efficiency” prove to be incompatible objectives.

Nor does it provide a working definition for the crucial concept of “risk management.”  This term, often contrasted with “risk avoidance,” implies an increased tolerance for risk (i.e. risk of failure).  But the practical meaning (or the limit) of this tolerance is nowhere made explicit.

The Defense Security Enterprise will be managed by “a core of highly qualified security professionals,” the DoD directive said.

Fusion Centers Flayed in Senate Report

The state and local fusion centers supported by the Department of Homeland Security have produced little intelligence of value and have generated new concerns involving waste and abuse, according to an investigative report from the Senate Homeland Security Committee Permanent Subcommittee on Investigations.  (NYT, WP)

“It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties,” said Senator Tom Coburn, the ranking member of the Subcommittee who initiated the investigation.

While it may not be the last word on the subject, the new Subcommittee report is a rare example of congressional oversight in the classical mode.  It was performed by professional investigators over a two-year period.  It encountered and overcame agency resistance and non-cooperation.  And it uncovered — and published — significant new information that demands an executive branch response.  That’s the way the system is supposed to work.

Puerto Rico’s Political Status, and More from CRS

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

Puerto Rico’s Political Status and the 2012 Plebiscite: Background and Key Questions, October 2, 2012

The Emergency Food and Shelter National Board Program and Homeless Assistance, October 5, 2012

Federal Freight Policy: An Overview, October 2, 2012

The Peace Corps: Current Issues, updated October 2, 2012

Chemical Facility Security: Issues and Options for the 112th Congress, updated October 2, 2012

Supreme Court Urged to Grant Standing in Surveillance Challenge

In its new term that began yesterday, the U.S. Supreme Court will hear arguments over whether to affirm the right of journalists and human rights organizations to challenge the constitutionality of the Foreign Intelligence Surveillance Act (FISA) Amendments Act, or FAA.

The FISA Amendments Act authorizes the collection of a broad swath of public communications without a warrant (though not the intentional targeting of the communications of any particular U.S. person).  As such, critics say, it jeopardizes freedom of communication with individuals abroad.

At issue is whether the plaintiffs, represented by the American Civil Liberties Union, have the “standing” to bring the case.  A lower court said they did not, but an appeals court said they did.  It will be up to the Supreme Court to decide the case, which is captioned Amnesty et al v. Clapper.

The Electronic Privacy Information Center filed an amicus brief (which I co-signed) urging the Court to affirm standing on grounds that the plaintiffs have established a reasonable concern about the security of their communications, and that existing oversight mechanisms are inadequate.

“This threat to privacy is especially acute given the capabilities of the National Security Agency and the absence of meaningful oversight. Where enormous surveillance capabilities and blanket secrecy coexist, the public may reasonably fear the interception and collection of private communications,” the EPIC brief stated.

Furthermore, the current structure “lacks significant public oversight and accountability.”

“The public, the judiciary (but for the FISC [Foreign Intelligence Surveillance Court]) and almost all Members of Congress are kept in the dark as to the most extensive electronic surveillance program undertaken by the US government. While the DNI and Attorney General provide internal reporting requirements, none of this information is made available to the whole Congress or the public broadly, and thus no meaningful public oversight can occur.”

“When the law gives new authority to conduct electronic surveillance, there should also be new means of oversight and accountability. The FISA Amendments Act fails this test,” the brief said.

Status of Iran’s Nuclear Program, and More from CRS

New and newly updated reports from the Congressional Research Service which have not been made publicly available include the following.

Iran’s Nuclear Program: Status, updated September 26, 2012

Israel: Possible Military Strike Against Iran’s Nuclear Facilities, updated September 28, 2012

Senkaku (Diaoyu/Diaoyutai) Islands Dispute: U.S. Treaty Obligations, September 25, 2012

Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, updated September 27, 2012

Military Medical Care: Questions and Answers, updated September 27, 2012

The Family and Medical Leave Act (FMLA): An Overview, September 28, 2012

Fannie Mae’s and Freddie Mac’s Financial Status: Frequently Asked Questions, September 27, 2012

Surface Transportation Funding and Programs Under MAP-21: Moving Ahead for Progress in the 21st Century Act (P.L. 112-141), September 27, 2012

The Exon-Florio National Security Test for Foreign Investment, updated October 1, 2012