Posts from March, 2013

A Look Back at Congressional Oversight of Intelligence, 2011-2012

Several nuggets of interest are presented in the latest biennial report from the Senate Select Committee on Intelligence, summarizing the Committee’s oversight activities in the 112th Congress:

*    The Director of National Intelligence abruptly cancelled a multi-year effort to establish a single consolidated data center for the entire Intelligence Community a year or so ago, in favor of a migration to cloud computing.

*    Under criticism that the number of intelligence contractor personnel has grown too high, too fast, intelligence agencies have been cutting the number of contractors they employ or converting contractors to government employees.  But some of those agencies have continued to hire additional contractors at the same time, resulting in net growth in the size of the intelligence contractor workforce.

*    A written report on each covert action that is being carried out under a presidential finding is provided to the congressional committees every quarter.

The March 22 report also provides some fresh details of the long-awaited and still unreleased Committee study on CIA’s detention and interrogation program.  That 6,000 page study, which was completed in July 2012 and approved by the Committee in December 2012, is divided into three volumes, as described in the report:

“I. History and Operation of the CIA’s Detention and Interrogation Program. This volume is divided chronologically into sections addressing the establishment, development, and evolution of the CIA detention and interrogation program.”

“II. Intelligence Acquired and CIA Representations on the Effectiveness of the CIA’s Enhanced Interrogation Techniques. This volume addresses the intelligence attributed to CIA detainees and the use of the CIA’s enhanced interrogation techniques, specifically focusing on CIA representations on how the CIA detention and interrogation program was operated and managed, as well as the effectiveness of the interrogation program. It includes sections on CIA representations to the Congress, the Department of Justice, and the media.”

“III. Detention and Interrogation of Detainees. This volume addresses the detention and interrogation of all known CIA detainees, from the program’s inception to its official end, on January 22, 2009, to include information on their capture, detention, interrogation, and conditions of confinement. It also includes extensive information on the CIA’s management, oversight, and day-to-day operation of the CIA’s detention and interrogation program,” according to the report’s description.

“I have read the first volume, which is 300 pages,” said CIA Director John O. Brennan at his February 7 confirmation hearing.  “There clearly were a number of things, many things, that I read in that report that were very concerning and disturbing to me, and ones that I would want to look into immediately, if I were to be confirmed as CIA Director.”

“It talked about mismanagement of the program, misrepresentations of the information, providing inaccurate information,” Mr. Brennan said then. “And it was rather damning in a lot of its language, as far as the nature of these activities that were carried out.”

[Clarification: Mr. Brennan's reference to "the first volume" does not correspond to "Volume I" as described in the new Committee report. He was referring to the executive summary, findings, and conclusions of the report, which are bound separately from the body of the report.]

The Committee said it is awaiting comments on the study from the White House, the CIA and other executive branch agencies, and that it will then “discuss the public release of the Study.”

On February 15, 2013, Republicans who were members of the Committee in the last Congress formally filed dissenting comments opposing the study and its conclusions, the report said.

For its first couple of decades, the Senate Intelligence Committee held that “even secret activities must be as accountable to the public as possible,” as Sen. Daniel Inouye stated in the Committee’s first biennial report in 1977, and that “as much information as possible about intelligence activities should be made available to the public,” as Senators Richard Shelby and Bob Kerrey wrote in the 1999 version of the report.

But in the past decade, the Committee seems to have reconceptualized its relationship with the public.  It no longer promises to make “as much information as possible about intelligence activities” available to the public.  The notion that “secret activities” could be “accountable to the public” is now evidently considered a contradiction in terms (although release of the report on CIA interrogation practices, if it ever came to pass, would nullify and transcend that contradiction).

Today, as the latest report states, the Committee aims merely “to provide as much information as possible to the American public about its intelligence oversight activities.”  (Intelligence Oversight Steps Back from Public Accountability, Secrecy News, January 2, 2013).

Even within the narrowed horizons to which it has limited itself, however, the report presents a rather attenuated, “skim milk” account of the Committee’s work. Judging from the new report, intelligence oversight consists of frequent briefings, followed by numerous “evaluations” and “reviews.”

The report provides no indication of any conflict between the Committee and the intelligence agencies. Consequently, there are no significant victories (though the successful passage of four consecutive intelligence authorization bills is a notable achievement), and no meaningful defeats.

At the Brennan confirmation hearing on February 7, Committee chair Sen. Dianne Feinstein said: “I have been calling, and others have been calling–the Vice Chairman and I–for increased transparency on the use of targeted force for over a year, including the circumstances in which such force is directed against U.S. citizens and noncitizens alike.”  And to its credit, the Committee conscientiously posed a pre-hearing question on classification reform to Mr. Brennan (which he deflected).

But the new report does not identify any such effort by Committee leadership to promote increased transparency on targeted killing during the past Congress.  It does not reference the failure to accomplish the declassification of Foreign Intelligence Surveillance Court opinions, as the Committee had been promised in 2011.  Nor does the report address the abuse of classification authority or cite what the President called “the problem of overclassification” at all.

DoD Inspector General Has Unrestricted Access to Classified Info

A Department of Defense instruction issued on Friday reinforces the policy that the DoD Office of Inspector General (OIG) is to have full access to all records, including classified records, that it needs to perform its function, and that no DoD official other than the Secretary himself may block such access.

“The OIG must have expeditious and unrestricted access to all records…, regardless of classification, medium (e.g. paper, electronic) or format (e.g., digitized images, data) and information available to or within any DoD Component, and be able to obtain copies of all records and information as required for its official use once appropriate security clearances and access are substantiated for the OIG DoD personnel involved,” the instruction states. See “Office of the Inspector General of the Department of Defense Access to Records and Information,” DoD Instruction 7050.03, March 22, 2013.

By stressing that the Inspector General’s access is independent of a record’s classification, medium or format, this language elaborates and bolsters the text of a previous version of the instruction, which did not make those distinctions.

Furthermore, the new instruction specifies, “No officer, employee, contractor, or Service member of any DoD Component may deny the OIG DoD access to records.”  Only the Secretary of Defense may invoke a statutory exemption to limit IG access to certain intelligence, counterintelligence, or other sensitive matters, which he must then justify in a report to Congress.

As a result of these robust access provisions, the DoD Inspector General is well-positioned to conduct internal oversight not only of the Pentagon’s extensive classified programs, but also of the classification system itself, particularly since the Department of Defense is the most prolific classifier in the U.S. government.

In fact, the Inspector General of each executive branch agency that classifies national security information is now required by the Reducing Over-Classification Act of 2010 to evaluate the agency’s classification program.  Each Inspector General was directed “to identify policies, procedures, rules, regulations, or management practices that may be contributing to persistent misclassification of material.”

The first evaluation is due to be completed by September 30, 2013.  Vexingly, the Act did not provide a functional definition of “over-classification” or “misclassification.”  Therefore, the first hurdle that the IG evaluations must overcome is to determine the nature and the parameters of the problem of over-classification.

Privacy and Cloud Computing, and More from CRS

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

Cloud Computing: Constitutional and Statutory Privacy Protections, March 22, 2013

The National Broadband Plan Goals: Where Do We Stand?, March 19, 2013

U.S. Customs and Border Protection: Trade Facilitation, Enforcement, and Security, March 22, 2013

Itemized Tax Deductions for Individuals: Data Analysis, March 21, 2013

International Monetary Fund: Background and Issues for Congress, March 21, 2013

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, March 21, 2013

Former Presidents: Pensions, Office Allowances, and Other Federal Benefits, March 21, 2013

NASA Technical Reports Database Goes Dark

This week NASA abruptly took the massive NASA Technical Reports Server (NTRS) offline.  Though no explanation for the removal was offered, it appeared to be in response to concerns that export controlled information was contained in the collection.

“Until further notice, the NTRS system will be unavailable for public access. We apologize for any inconvenience this may cause you and anticipate that this site will return to service in the near future,” the NTRS homepage now states.

NASA Public Affairs did not respond yesterday to an inquiry about the status of the site, the reason for its suspension, or the timeline for its return.

NASA Watch and The Unwanted Blog linked the move to a statement from Rep. Frank Wolf on Monday concerning alleged security violations at NASA Langley Research Center.

“NASA should immediately take down all publicly available technical data sources until all documents that have not been subjected to export control review have received such a review and all controlled documents are removed from the system,” Rep. Wolf said.

In other words, all NASA technical documents, no matter how voluminous and valuable they are, should cease to be publicly available in order to prevent the continued disclosure of any restricted documents, no matter how limited or insignificant they may be.

“There is a HUGE amount of material on NTRS,” said space policy analyst Dwayne Day. “If NASA is forced to review it all, it will never go back online.”

Essentially, the mindset represented by Rep. Wolf and embraced by NASA fears the consequences of unauthorized disclosure more than it values the benefits of openness.  It is a familiar outlook that has wreaked havoc with the nation’s historical declassification program, and has periodically disrupted routine access to record collections at the National Archives, as well as online collections at the CIA, the Los Alamos technical report library, and elsewhere.

“I’d also note that a large amount of historical Mercury/Gemini/Apollo documents that were previously available at NARA Fort Worth is now apparently withdrawn due to ITAR [export controls],” said Dr. Day.

The upshot is that the government is not an altogether reliable repository of official records. Members of the public who depend on access to such records should endeavor to make and preserve their own copies whenever possible.

 

A Study of Public Mass Shootings, and More from CRS

Over the past thirty years, dozens of indiscriminate mass shootings in America have resulted in 547 deaths and an additional 476 injured victims, according to a new tabulation by the Congressional Research Service.

The new CRS report examines the phenomenon of mass shootings, like the December 2012 incident in Newtown, CT, and considers potential policy lessons for law enforcement, public health, and education.

The first step is to define the topic.  CRS says that public mass shootings occur “in relatively public places, involving four or more deaths–not including the shooter(s)–and gunmen who select victims somewhat indiscriminately.” Furthermore, the violence is not calculated to advance any political agenda or criminal scheme.

Using these criteria, CRS identified 78 public mass shootings that have occurred in the United States since 1983 resulting in 547 non-perpetrator deaths.

To place that figure in context, the CRS report notes the much larger dimensions of gun violence generally.  “It is important to caution the reader that, while tragic and shocking, public mass shootings account for few of the murders related to firearms that occur annually in the United States. According to the Federal Bureau of Investigation (FBI, the Bureau), in 2011, firearms were used to murder 8,583 people.”

The CRS report reviews a variety of remedial policy steps that could conceivably be taken to address public mass shootings.

But in a remarkable and telling omission, the report foregoes any discussion of potential restrictions on gun ownership or possession.  “This report does not discuss gun control and does not systematically address the broader issue of gun violence,” the report states in italics. See Public Mass Shootings in the United States: Selected Policy Implications, March 18, 2013.

The state of human rights in China and the ability of Congress to influence Chinese human rights policy are the subject of another new CRS report.

The report finds that “Ongoing human rights problems include excessive use of force by public security forces, unlawful detention, torture of detainees, arbitrary use of state security laws against political dissidents and ethnic groups, coercive family planning practices, persecution of unsanctioned religious activity, state control of information, and mistreatment of North Korean refugees.”

On the other hand, the CRS report said, “Amendments to the Criminal Procedure Law, which are to go into effect in 2013, reportedly provide for greater protections against torture and coerced confessions, expanded access to legal defense, longer trial deliberations, mandatory appellate hearings, more rigorous judicial review, and greater government oversight of the legal process.” See Human Rights in China and U.S. Policy: Issues for the 113th Congress, March 15, 2013.

An assessment of judicial reforms in Mexico and congressional efforts to support them are discussed in another new CRS report.

“Reforming Mexico’s often corrupt and inefficient criminal justice system is widely regarded as crucial for combating criminality, strengthening the rule of law, and better protecting citizen security and human rights in the country. Congress has provided significant support to help Mexico reform its justice system in order to make current anticrime efforts more effective and to strengthen the system over the long term.” See Supporting Criminal Justice System Reform in Mexico: The U.S. Role, March 18, 2013.

Other brand new CRS reports that Congress has withheld from broad public release include the following.

The United Nations Educational, Scientific, and Cultural Organization (UNESCO), March 18, 2013

Financial Condition of Depository Banks, March 18, 2013

Noteworthy updates of previously issued reports include these:

The Trans-Pacific Partnership Negotiations and Issues for Congress, March 19, 2013

U.S.-China Military Contacts: Issues for Congress, March 19, 2013

Publishing Scientific Papers with Potential Security Risks: Issues for Congress, March 18, 2013

Classification Complaint Arising from Thomas Drake Case Dismissed

In July 2011, J. William Leonard, a former director of the Information Security Oversight Office (ISOO), took the extraordinary step of filing a formal complaint with the Office he once led charging that a document used to indict former NSA official Thomas Drake under the Espionage Act had been wrongly classified in violation of the executive order on classification. (“Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 2, 2011; “Ex-federal official calls U.S. classification system ‘dysfunctional’” by Ellen Nakashima, Washington Post, July 21, 2012)

Last December, in a newly disclosed response, John P. Fitzpatrick, the current ISOO director, concluded that Mr. Leonard’s complaint did not warrant the sanctions that Mr. Leonard had urged.  Neither the original classification of the NSA document, titled “What a Wonderful Success,” nor its continued classification “rise to the level of willful acts in violation of the Order,” Mr. Fitzpatrick wrote in his December 26, 2012 response.

With that, the matter was officially closed.  But the divergent views underlying the complaint remain unresolved and continue to fester.

“I have devoted over 34 years to Federal service in the national security arena, to include the last 5 years of my service being responsible for Executive branch-wide oversight of the classification system,” Mr. Leonard wrote in his 2011 complaint. “During that time I have seen many equally egregious examples of the inappropriate assignment of classification controls to information that does not meet the standards for classification; however, I have never seen a more willful example.”

But Mr. Fitzpatrick said that having reviewed the original classification of the document as well as its continued classification, “I find no violation in either case.”  In fact, he noted, “NSA discontinued the classification of the document in question” during the course of the Drake case.

“The content and processing of the document fall within the standards and authority for classification under the Order and NSA regulations,” Mr. Fitzpatrick wrote.  That doesn’t make them immune to criticism, he wrote, but it means that their classification does not “rise to the level of willful acts in violation of the Order.”

Mr. Leonard was not persuaded.  In an email to Mr. Fitzpatrick after the complaint was dismissed, he said he was not overly concerned by the original classification of the document, “which although improper was, by all appearances, a reflexive rather than willful act.”  Nor, of course, was he troubled by the eventual declassification of the document.

But “What I did and continue to take issue with is that in between those events, senior officials of both the NSA and DoJ made a number of deliberate decisions to use the supposed classified nature of that document as the basis for a criminal investigation of Thomas Drake as well as the basis for a subsequent felony indictment and criminal prosecution.”

Not only that, Mr. Leonard said, but DoJ and NSA officials justified the classification after the fact by claiming the document “reveals… a specific level of effort…” concerning a classified activity, and that that assertion was “factually incorrect.”

Mr. Fitzpatrick said he had no basis to comment on the Drake case per se.  “That is not my purview.”

“I do think it important to note that ISOO’s authority to handle the complaint pertains to classification actions authorized under the Order.  It does not extend to investigative or prosecutorial decisions made under other authorities,” Mr. Fitzpatrick told Secrecy News yesterday.

But he added that “To conclude that the single document cited in the complaint was the primary basis for an investigation and prosecution is, in my view, too narrow a reading of the facts of the case. When building such cases, agencies make decisions to reduce the risk of exposing national security information.  This influences their selection of which documents and evidence to place in the public record.  These are matters of investigative and prosecutorial discretion whose results are determined in court.  Neither those results, nor opinions about the relative merits of mounting a case, recast the original classification action as sanction-worthy.”

Mr. Leonard highlighted the striking fact that no one has ever been sanctioned for abuse of classification authority, and he told Mr. Fitzpatrick that the present case was a missed opportunity.

“Accountability is crucial to any system of controls and the fact that your determination in this case preserves an unbroken record in which no government official has ever been held accountable for abusing the classification system does not bode well for the prospect of real reform of the system,” Mr. Leonard wrote.

Why indeed has there never been any accountability for classification abuse?  Mr. Fitzpatrick said “This goes to the cultural aspects of national security information control, where the premium is placed on protection and avoidance of inadvertent disclosure.  The other side of that coin — I would call it simply overclassification — is less generally policed against.  Its ill effects are felt in the cumbersome processes associated with declassification review and the persistent backlogs and slow processes that characterize the system.”

Mr. Leonard went further in a thoughtful but scathing presentation at a panel sponsored by the Brennan Center for Justice on March 14 (beginning at 36:25), in which he first disclosed the ISOO response to his complaint. He said, “I’ve come to the conclusion that the executive branch is both incapable and unwilling to achieve real reform in this area.”

Mr. Fitzpatrick said that, for his part, he retained a degree of hope that meaningful changes to secrecy policy could still be achieved.

“There are some essential elements needed to bring about reform, and they hard to come by,” he said via email. “The first and most important is an unambiguous call for change from senior leadership.  That mandate must promise commitment and describe specific outcomes the change is meant to bring about.  Examples would include: reduce classification; expedite declassification; improve access to declassified historical Formerly Restricted Data.  Given that inter-agency cooperation is needed to address these issues, nothing short of a White House-directed effort is likely to succeed in making this kind of reform happen.  This belief underlies the [Public Interest Declassification Board's] primary recommendation from their recent report [namely, to establish a White House-led steering group on secrecy reform].”

The last impartial word about the Thomas Drake prosecution (though not specifically on classification policy) may be that of the presiding judge, Judge Richard D. Bennett. At the July 2011 sentencing hearing that ended the case, he called the government’s handling of the matter “unconscionable” and abusive.

Thomas Drake himself reflected on his experience in a speech to the National Press Club on March 15.

Secret Sessions of Congress, and More from CRS

The latest updates from the Congressional Research Service obtained by the Federation of American Scientists include these reports.

Secret Sessions of the House and Senate: Authority, Confidentiality, and Frequency, March 15, 2013

Europe’s Energy Security: Options and Challenges to Natural Gas Supply Diversification, March 15, 2013

The Amending Process in the Senate, March 15, 2013

Commonly Used Motions and Requests in the House of Representatives, March 15, 2013

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and Issues for Congress, March 15, 2013

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, March 15, 2013

Coast Guard Cutter Procurement: Background and Issues for Congress, March 15, 2013

Coast Guard Polar Icebreaker Modernization: Background, Issues, and Options for Congress, March 15, 2013

Taxes on Gun Sales to Support Wildlife, and More from CRS

In the wake of recent gun-related violence, and in anticipation of potential new restrictions on gun ownership, there has been a sharp increase in sales of guns and ammunition.  That is bad news for gun control advocates, but it turns out to be good news for wildlife, at least in the short term.

“Through an excise tax on firearms and ammunition, such sales have a marked beneficial effect on funding for state wildlife programs,” according to a new Congressional Research Service report.

Gun tax-derived funding for wildlife restoration increased by about $150 million this year, CRS found, to around $413 million, though some of that is subject to sequestration.  “With reports of surges in gun sales over guns rights and gun-related violence, substantially more funds seem likely to be available in FY2014,” the report said.

Game species — animals that can be shot by hunters — “are the primary or direct beneficiaries of the program,” CRS said drily. However, “non-game species, such as native plants, non-game birds, and other species, may benefit incidentally through conservation of the habitats they share with hunted species.”  The twisting tale is told in Guns, Excise Taxes, and Wildlife Restoration, March 12, 2013.

Other new reports from the Congressional Research Service that Congress has opted to withhold from online release to the public include the following.

A hypothetical (and unlikely) restructuring of national security spending is discussed in A Unified National Security Budget? Issues for Congress, March 14, 2013

The projected impact of sequestration on foreign aid is detailed in The Budget Control Act, Sequestration, and the Foreign Affairs Budget: Background and Possible Impacts, March 13, 2013

Close defense cooperation between the U.S. and New Zealand, which was suspended in the Reagan era due to differences over nuclear policy, has been reestablished and expanded, the CRS says in New Zealand: U.S. Security Cooperation and the U.S. Rebalancing to Asia Strategy, March 8, 2013

Changes to Senate Procedures in the 113th Congress Affecting the Operation of Cloture (S.Res. 15 and S.Res. 16), March 13, 2013

An Overview of the Housing Finance System in the United States, March 13, 2013

Analysis of the Sandy Recovery Improvement Act of 2013, March 11, 2013

Judge Collyer Named to Intelligence Surveillance Court

Judge Rosemary M. Collyer of the D.C. District Court was appointed by the Chief Justice of the United States to a seven year term on the Foreign Intelligence Surveillance Court. The Court provides a measure of judicial oversight over surveillance activities under the Foreign Intelligence Surveillance Act, as amended.

Judge Collyer’s term on the FIS Court began on March 8, 2013 and will conclude on March 7, 2020.  She replaces Judge John D. Bates, whose term ended on February 21.  Her appointment was confirmed by Sheldon Snook, spokesman for the Court.

A roster of the current membership of the Foreign Intelligence Surveillance Court can be found here.

The Court has acknowledged receipt of a letter from several members of the Senate requesting that the Court prepare summaries of its legal interpretations of the Foreign Intelligence Surveillance Act in order to facilitate their declassification and public release.  But no further action has yet been taken by the Court, as far as could be determined.

Judge Collyer was appointed to the bench by President George W. Bush. In September 2011, she authored an opinion accepting the CIA’s view that for the CIA merely to acknowledge the fact that it had an interest in the use of drones for targeted killing would pose unacceptable damage to national security.

Today, the DC District of Appeals unanimously reversed Judge Collyer’s decision.  The appeals court said the CIA was adhering to “a fiction of deniability that no reasonable person would regard as plausible.”  The case — American Civil Liberties Union v. Central Intelligence Agency — was remanded to Judge Collyer for further processing.

CRS Reports on Navy Programs

Newly updated reports from the Congressional Research Service on various U.S. Navy programs include the following.

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, March 14, 2013

Navy Littoral Combat Ship (LCS) Program: Background, Issues and Options for Congress, March 14, 2013

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, March 14, 2013

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, March 14, 2013

Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background and Issues for Congress, March 14, 2013

Navy Virginia (SSN-774) Class Attack Submarine Procurement: Background and Issues for Congress, March 13, 2013

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, March 13, 2013

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, March 1, 2013