Posts from December, 2012

“Crimes Reports” and the Leak Referral Process

“Crimes reports” are official notifications that are sent by U.S. intelligence agencies to the Department of Justice when an unauthorized disclosure of classified information (or another potential federal crime) is believed to have occurred.  Crimes reporting is required by statute, by executive order, and by interagency agreement between the Attorney General and the heads of intelligence agencies.

“We file crimes reports every week,” said George J. Tenet in a discussion of leaks during his 1997 confirmation hearing to be Director of Central Intelligence.

“Say again?” said Sen. Robert Kerrey, who may have been unfamiliar with the term used by Mr. Tenet.

“We file crimes reports with the Attorney General every week about leaks, and we’re never successful in litigating one,” Mr. Tenet said.

In general, information or allegations concerning criminal activity by government employees should be reported to the Attorney General pursuant to 28 U.S.C. 535, “Investigation of crimes involving Government officers and employees.”

More particularly, Executive Order 12333 (section 1.6) on United States Intelligence Activities requires the heads of intelligence agencies to “report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned….”

The unusual term “crimes reports” derives from those procedures, which are set forth in a 1995 Memorandum of Understanding (MOU): Reporting of Information Concerning Federal Crimes, signed by Attorney General Janet Reno and the heads of six other agencies.

Though it is rarely cited in public discussions of leak policy, this MOU provides the structural framework for intelligence community reporting to the Justice Department regarding leaks of classified information, among other potential crimes.

This Agreement requires each employee of the Agency to report to the General Counsel or IG facts or circumstances that reasonably indicate to the employee than an employee of an intelligence agency has committed, is committing, or will commit a violation of federal criminal law.”  Then, “If a preliminary inquiry reveals that there is a reasonable belief for the allegations, the General Counsel will follow the reporting requirements” for submission of “crimes reports.”

Intelligence agency employees are also required to report to the General Counsel of their agency information about certain violations of criminal law that are committed by persons who are not employees of an intelligence agency– specifically including “unauthorized disclosure of classified information.”

Crimes reports in such cases are to be submitted to the Department of Justice, which “shall maintain a record of all special crimes reports received from the Agency.”  If, in addition, the agency determines that no public disclosure of classified information would result from further investigation or prosecution of the matter, then it is also to be reported to the appropriate federal investigative agency.

“During the last several years, we have received roughly 50 crime reports each year of leaks to the media of classified information,” said Attorney General Janet Reno in June 2000 testimony before a closed hearing of the Senate Intelligence Committee.  (Although she said “crime report”, the preferred locution seems to be “crimes report.”)

“Because of the large number of leaks and the recognition that the Department and the FBI have limited investigative resources, intelligence agencies do not request criminal investigations of every unauthorized disclosure of classified information,” she said. “Instead, they request investigations of the most damaging leaks, usually around 20-25 cases a year for the last several years. We have opened investigations into almost all of the leaks requested by the victim agencies.”

However, AG Reno explained, “before opening a criminal investigation, the Criminal Division generally requires the agency requesting the investigation to submit the answers to eleven specific questions regarding what was leaked and who had access to it…. We believe that the eleven questions are essentially the equivalent of filing a police report.  They provide the information we need to determine whether a criminal investigation is likely to be productive and, if so, where to start.”

A copy of the DoJ Media Leak Questionnaire with the eleven questions is available here.

The figure of 50 crimes reports per year noted by the Attorney General in 2000 is consistent with George Tenet’s 1997 statement that crimes reports on leaks were being filed “every week.”

But a CIA Inspector General report in 2000 (on the handling of classified information by CIA director John Deutch) said that “Records of the [CIA] Office of General Counsel indicate there were an average of 200 written crimes reports submitted to DoJ each year for the period 1995-1998.”

If that is correct, then presumably the larger figure includes reports of federal crimes other than unauthorized disclosures.

Between September 2001 and February 2008, the Federal Bureau of Investigation initiated and closed the investigation of 85 reported leaks of classified intelligence information, “all of which concerned unauthorized disclosures of classified information to the media,” FBI Director Robert S. Mueller III told the Senate Intelligence Committee in 2008.  “None of these cases reached prosecution,” he said.  But as of February 2008, “21 such cases are [still] under investigation.”  (“Classified Intelligence Leaks, 2001-2008,” Secrecy News, July 15, 2009).

Between 2005 and 2009, U.S. intelligence agencies submitted 183 “referrals” to the Department of Justice reporting unauthorized disclosures of classified intelligence.  Based on those referrals or on its own initiative, the FBI opened 26 leak investigations, and the investigations led to the identification of 14 suspects.  (“FBI Found 14 Leak Suspects in Past Five Years,” Secrecy News, June 21, 2010).

Though it is hard to be certain, the most sustained and prolific leaking of Top Secret and compartmented information may have occurred during the late 1990s when such leaks appeared every few days in the reporting of Washington Times reporter Bill Gertz.

“It’s getting a little tiring to see this constant source of leaks to the Washington Times of classified intelligence documents,” State Department spokesman Nicholas Burns told the Weekly Standard in an otherwise admiring profile of Mr. Gertz in 1996. (“He Drives Them Crazy” by Matthew Rees, December 1, 1996.)

No arrests or prosecutions resulted from that “constant source of leaks,” though it eventually diminished.

Meanwhile, the current Congress is still considering new constraints on disclosure of classified information that go well beyond anything the executive branch has requested or considers prudent.

Robert Litt, the general counsel of the Office of the Director of National Intelligence, recently expressed some criticism of the congressional anti-leak initiative.

“We have discussed with the Intelligence Committee our concern that some of the proposals in their legislation really would not have any deterrent impact or punitive impact on leaks, and might in fact have an adverse impact on the free flow of information to the American people,” Mr. Litt told an American Bar Association meeting last month.

But it is not clear whether the Senate Intelligence Committee, which has not held an open hearing in almost a year, would be moved by appeals to “the free flow of information to the American people.”

Gun Control Legislation, and More from CRS

The broad spectrum of policies relating to gun control is surveyed in a sadly timely, updated report from the Congressional Research Service, which also provides statistics on the prevalence and use of firearms in the United States.  See Gun Control Legislation, November 14, 2012.

Other new and updated CRS reports that Congress has not made available to the public include the following.

Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, December 11, 2012

Women in Combat: Issues for Congress, December 13, 2012

Intelligence Identities Protection Act, December 13, 2012

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, December 10, 2012

Outside Employment, “Moonlighting,” by Federal Executive Branch Employees, December 12, 2012

Follow-On Biologics: The Law and Intellectual Property Issues, December 6, 2012

Nuclear Energy: Overview of Congressional Issues, December 11, 2012

Fatherhood Initiatives: Connecting Fathers to Their Children, December 7, 2012

Emergency Assistance for Agricultural Land Rehabilitation, December 11, 2012

Bee Health: The Role of Pesticides, December 11, 2012

Cheneyism Preserved But Attenuated in New Plum Book

Updated below

In the George W. Bush Administration, Vice President Dick Cheney advanced the idea that the Office of the Vice President is not part of the executive branch, and that it was therefore exempt from the sort of oversight mechanisms — including classification oversight — which it might otherwise be (and previously was in fact) subject to.

Somewhat unexpectedly, this conception of a Vice Presidency that transcends the three branches of government reappears in the 2012 edition of the Plum Book, an official publication which lists thousands of employment positions for appointees within the federal government and which is published every four years.

“The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter,” the new 2012 Plum Book states in Appendix No. 5, reproducing identical language from the 2008 Plum Book.

This language was first introduced in 2004, when that year’s Plum Book also stopped listing most of the previously identified staff positions in the Office of Vice President, with the exception of the Chief of Staff (I. Lewis Libby) and one other assistant.

By 2008, even those two staff listings had been deleted from the Plum Book as the Office of the Vice President retreated into further concealment.

However, while replicating the language of Cheneyism, the latest Plum Book restores the deleted coverage of the Office of Vice President.

Thirteen current OVP positions are now listed.  And the Office of the Vice President appears — as it did prior to the Bush Administration — under the heading of the Executive Branch.

Update: The statement that the Vice Presidency “belongs neither to the Executive nor to the Legislative Branch but is attached by the Constitution to the latter” is derived from a 1961 Office of Legal Counsel opinion (at p. 11), which termed the question a “semantic problem.” Under the George W. Bush Administration, however, this semantic problem was invoked to alter established oversight practices in the direction of greater secrecy.

The 2010 Census, and More from CRS

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

The 2010 Census: Count Question Resolution Program, December 7, 2012

An Analysis of STEM Education Funding at the NSF: Trends and Policy Discussion, December 12, 2012

Value-Added Modeling for Teacher Effectiveness, December 11, 2012

Teacher Quality Issues in the Elementary and Secondary Education Act, December 10, 2012

U.S. Farm Income, December 10, 2012

The National Flood Insurance Program: Status and Remaining Issues for Congress, December 10, 2012

Department of Defense Energy Initiatives: Background and Issues for Congress, Decembr 10, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, December 10, 2012

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, December 10, 2012

Coast Guard Polar Icebreaker Modernization: Background, Issues, and Options for Congress, December 10, 2012

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, December 10, 2012

NRO Releases Redacted Budget Book for FY2013

The National Reconnaissance Office (NRO), the U.S. intelligence agency that is responsible for developing and operating the nation’s intelligence satellites, has released a redacted version of its Congressional Budget Justification Book for the current fiscal year in response to a Freedom of Information Act request.

“NRO systems allow users to quickly focus multiple sensors on almost any point on the globe to respond to emerging crises or operational requirements and provide persistent, multi-INT coverage,” the budget document says.

“With these capabilities the NRO is an indispensable contributor to national policymakers, the overall national intelligence effort, and the war on terrorism and ongoing military operations…. In addition to their primary intelligence missions, NRO systems increasingly support Homeland Security requirements.”

During the present budget year, the NRO said it is working “to improve the responsiveness of existing systems.” But it is also “developing new product types integrating multi-platform, multi-INT, and multi-domain data to maximize overhead performance and synergistically address the nation’s highest priority issues.”

The agency told Congress it has had “successes developing new operational concepts and sensor data processing tools enabling legacy satellites, designed against different collection requirements and operating well beyond their design lives, to effectively address current intelligence problems.”

The large majority of the NRO budget document has been redacted as classified and was withheld from public disclosure.  But meaningful glimmers of fact or assertion can still be found in what has been released.  For example:

NRO said it has accomplished a “recent 88 percent reduction in collection-to-analyst dissemination timelines.”

NRO expects to complete 15,000 initial and periodic security clearance reviews during the current fiscal year.

The budget document says the funding request for the NRO Inspector General was cut by 37% this year. The NRO said this reduction could be managed although sharp cuts in future budgets were discouraged:  “There is no greater time when an organization is in need of oversight than in times of significantly decreasing budgets. It is during difficult fiscal decline that fraud is most likely to occur, when management controls weaken, and when unintended performance risks take root.”

The current NRO research agenda includes efforts “to take advantage of massive data sets, multiple data sources, and high-speed machine processing to identify patterns without a priori knowledge or pattern definition; [as well as] visualization and presentation of patterns for human interpretation to enable identification of normal and abnormal behaviors to detect, characterize, and identify elusive targets.”

The redacted budget document devotes at least cursory attention to NRO strategic planning, human resources, administration, facilities, information technology, and research and development, among other topics.  Actual NRO budget numbers were not disclosed.

Presidential Reorganization Authority, and More from CRS

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

Presidential Reorganization Authority: History, Recent Initiatives, and Options for Congress, December 11, 2012

Presidential Appointee Positions Requiring Senate Confirmation and Committees Handling Nominations, November 15, 2012

Legal Protections for Subcontractors on Federal Prime Contracts, December 10, 2012

Loss of Federal Pensions for Members of Congress Convicted of Certain Offenses, December 10, 2012

The National Defense Authorization Act for FY2012: Detainee Matters, December 11, 2012

“Gang of Four” Congressional Intelligence Notifications, November 19, 2012

Senate Puts Brakes on Defense Clandestine Service

The Senate moved last week to restrain the rapid growth of the Defense Clandestine Service, the Pentagon’s human intelligence operation.

Under a provision of the FY2013 defense authorization act that was approved on December 4, the Pentagon would be prohibited from hiring any more spies than it had as of last April, and it would have to provide detailed cost estimates and program plans in forthcoming reports to Congress.

“DoD needs to demonstrate that it can improve the management of clandestine HUMINT before undertaking any further expansion,” the Senate Armed Services Committee wrote in a report on the new legislation.

Longstanding problems with defense human intelligence cited by the Committee include:  “inefficient utilization of personnel trained at significant expense to conduct clandestine HUMINT; poor or non-existent career management for trained HUMINT personnel; cover challenges; and unproductive deployment locations.”

The Committee noted further that “President Bush authorized 50 percent growth in the CIA’s case officer workforce, which followed significant growth under President Clinton. Since 9/11, DOD’s case officer ranks have grown substantially as well. The committee is concerned that, despite this expansion and the winding down of two overseas conflicts that required large HUMINT resources, DOD believes that its needs are not being met.”

Instead of an ambitious expansion, a tailored reduction in defense intelligence spending might be more appropriate, the Committee said.

“If DOD is able to utilize existing resources much more effectively, the case could be made that investment in this area could decline, rather than remain steady or grow, to assist the Department in managing its fiscal and personnel challenges,” the Senate Committee wrote.

The Washington Post published a revealing account of Pentagon plans to expand the size and reach of the defense human intelligence program in “DIA sending hundreds more spies overseas” by Greg Miller, December 1.

Along with overhead surveillance, bolstering human intelligence has been the focus of one of two major defense intelligence initiatives, said Under Secretary of Defense (Intelligence) Michael G. Vickers last October.  The Defense Clandestine Service “enable[s] us to be more effective in the collection of national-level clandestine human intelligence across a range of targets of paramount interest to the Department of Defense,” he said.

The latest issues of the U.S. Army’s Military Intelligence Professional Bulletin, released under the Freedom of Information Act, are available here (in some very large pdf files).

“A Short History of Army Intelligence” by Michael E. Bigelow of US Army Intelligence and Security Command, dated July 2012, is available here.

Newly updated doctrine from the Joint Chiefs of Staff includes Information Operations, JP 3-13, 27 November 2012, and Joint Forcible Entry Operations, JP 3-18, 27 November 2012.

The defense authorization bill approved by the Senate last week also called upon the Pentagon to expedite the domestic use of unmanned aerial systems (UAS) and their integration into National Airspace System (NAS).

“While progress has been made in the last 5 years [in integrating UASs into domestic airspace], the pace of development must be accelerated,” the Senate Armed Services Committee said in its report on the bill.  “Greater cross-agency collaboration and resource sharing will contribute to that objective.”

“Without the ability to operate freely and routinely in the NAS, UAS development and training — and ultimately operational capabilities — will be severely impacted,” the Senate Committee said.

Open Source Technologies for Arms Control

Members of the public are invited to develop and submit ideas to an essay contest on the potential uses of open source information and technology to support international arms control initiatives.

The State Department is sponsoring the contest in partnership with the James Martin Center for Nonproliferation Studies and the Moscow-based Center for Policy Studies.

“The contest aims to harness the ingenuity of American and Russian citizens to think creatively about innovative ways to use open source information and communication technologies for arms control verification, compliance monitoring, and monitoring of sensitive facilities,” the CNS said in its announcement.

While an essay contest is not a momentous undertaking, this one does seem to represent a wholesome awareness that the underlying realities of national security are changing in fundamental ways.  It follows that national security policies — including classification policies and public engagement — need to adapt accordingly.

“Diplomacy today is very different than it was at the dawn of the nuclear age,” the State Department said. “More often diplomacy is happening in the open, and at quicker speeds.”

“The astonishing advancements in information and communication technologies include new tools and capabilities that could help support arms control transparency and compliance.  This essay contest aims to encourage more public participation, discussion and thought on arms control,” the State Department said.

There is already an impressive history of public participation in arms control efforts, notably including the work of Thomas Cochran and the Natural Resources Defense Council in demonstrating seismic monitoring for verification of a low-threshold nuclear test ban.

Iran’s Ballistic Missile Program, and More from CRS

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

Iran’s Ballistic Missile and Space Launch Programs, December 6, 2012

Syria’s Chemical Weapons: Issues for Congress, December 5, 2012

Egypt: Background and U.S. Relations, December 6, 2012

In Brief: Next Steps in the War in Afghanistan? Issues for Congress, December 6, 2012

Afghanistan Casualties: Military Forces and Civilians, December 6, 2012

Detention of U.S. Persons as Enemy Belligerents, December 4, 2012

Right to Work Laws: Legislative Background and Empirical Research, December 6, 2012

Advisory Board Urges White House to Lead Secrecy Reform

In a long-awaited report to the President, the Public Interest Declassification Board urged the White House to take the lead in fixing the national secrecy system.

The Public Interest Declassification Board is an advisory committee that was established by Congress to help promote possible access to the documentary record of significant U.S. national security decisions and activities.  In 2009, President Obama asked the Board to develop recommendations for “a more fundamental transformation of the security classification system.”

“The current classification and declassification systems are outdated,” wrote Board chair Amb. Nancy Soderberg in a November 27 transmittal letter to the President.  “We believe it will require a White House-led steering committee to drive reform, led by a chair that is carefully selected and appointed with specific authorities that you grant.”

At the executive branch agency level, “there is little recognition among Government practitioners that there is a fundamental problem,” Amb. Soderberg told the President.  “Clearly, it will require a Presidential mandate to energize and direct agencies to work together to reform the classification system.”

This is a crucial point.  Left to their own devices, agencies will not fundamentally alter the classification practices that are the entrenched legacy of over half a century.  Future progress in secrecy reform will require agencies to surrender some of the discretion in classification and declassification activity that they have long enjoyed.  But this is unlikely to happen without presidential intervention and direction.

“We hope that our recommendations will serve as a catalyst for discussions and deliberations within the government,” Amb. Soderberg said at a public meeting this morning.

The new report on Transforming the Security Classification System is available here.

Some of the Board’s specific recommendations are naturally subject to debate.  A proposal to reduce the current three-level classification system to two levels was previously recommended by the Joint Security Commission in 1994 but was ultimately abandoned as unworkable.  A proposal to base classification decisions on the degree of protection required for information rather than on the damage that might result from its disclosure is a subtle change that may be worth considering — although a judgment about the degree of protection required would seem to involve an implicit judgment about the damage from disclosure.

But these are quibbles in comparison to the principal PIDB recommendation in favor of presidential leadership of secrecy reform, and establishment of a presidentially-led steering committee to execute needed changes throughout the government.

“The classification system must be modernized as a dynamic, easily understood and mission-enabling system and one that deters over-classification and encourages accessibility,” the Board wrote in its report.  “This will require a coordinated effort across Government beginning with an interagency process led by the White House.”