Posts from March, 2013

OPM Mulls Changes to Security Clearance Questionnaire

The Office of Personnel Management has invited the public to comment on proposed changes to Standard Form (SF) 86, the questionnaire that must be filled out by all persons who are seeking a security clearance for access to classified information.

Although critics have argued that the SF-86 is hopelessly out of date and should be abandoned in favor of a more streamlined process, the changes that OPM is currently considering are mostly technicalities, not a wholesale revision.  Proposed changes include a recognition of civil unions as a legal alternative to marriage, a clarification that use of drugs that are illegal under federal law must be reported even if they are legal under state law, and changes in wording and instructions for completion of the Form.

Public comments on the changes were solicited by OPM in a March 12 Federal Register notice.

SF-86 is notoriously burdensome to fill out, requiring individuals to supply detailed personal information about all places they have lived for the past seven years, their employment history and where they went to school, along with the name and contact information of someone who can verify each item, as well as any criminal history record, use of illegal drugs, and so forth.

“The SF 86 takes approximately 150 minutes to complete,” the OPM notice says.  But for many people, this seems to be an underestimate.

“I spent four hours one Saturday completing [an] SF-86,” wrote John Hamre, who was deputy secretary of defense under President Clinton, in a Washington Post op-ed recently. His pointed criticism of the Form and the clearance process may have inspired some of the proposed changes. (“The wrong way to weed out spies,” Washington Post, February 20.)

The OPM notice promises that “once entered, a respondent’s complete and certified investigative data remains secured in the e-QIP system until the next time” the form must be completed (e.g. for clearance renewal).

But in Secretary Hamre’s case this didn’t happen for some reason — his previous Form was not saved. “The OPM apparently had no record of this document, which was filed with that agency,” he wrote, so he had to start over from scratch.

When the SF-86 asked for a list of “all foreign travel you have undertaken in the past 7 years,” Hamre balked.  He said he had repeatedly traveled on official business and always reported any contacts with foreign government officials.  So “I refused to enter the information, rather than give it to our government a second time.”

As if in response to Hamre’s objection, the new OPM notice says the Form’s instructions will be “amended so that the respondent need [not] report contact related to official U.S. Government travel.”

Much like the national security classification system that it supports, the security clearance process is still predicated on cold war-era presumptions that became obsolete decades ago. This fundamental critique has yet to be addressed by OPM.

“Why does our government rely on forms designed in the 1950s?” Hamre complained.  “Our country needs a system built for the 21st century.  The current system is pathetic.”

Deterring Leaks Through Polygraph Testing

Last summer, Director of National Intelligence James R. Clapper directed agencies that perform polygraph tests to include a “pre-test dialogue” about the need to prevent leaks of classified information as part of the polygraph interview process.

In a July 2012 memorandum to agencies, he said that the CIA’s polygraph program exemplified what he had in mind.

“During the pre-test discussion, CIA specifically asks whether an individual has provided classified information or facilitated access to classified information to any unauthorized persons, to include the media, unauthorized U.S. persons, or foreign nationals.  The polygraph process is also used to identify deliberate disclosures,” DNI Clapper wrote.  Other agencies that perform polygraph testing should follow procedures similar to CIA’s, he said.

“Aggressive action is required to better equip United States Government elements to prevent unauthorized disclosures,” DNI Clapper wrote.

The new policy was announced last June, but the implementing July 2012 memorandum was only released this week in response to Freedom of Information Act requests.  See Deterring and Detecting Unauthorized Disclosures, Including Leaks to the Media, Through Strengthened Polygraph Programs, July 13, 2012.

A copy of the memorandum was also obtained by Jason Leopold of Truthout.org, who reported on it yesterday.

 

Leaks: Why the Government Condemns and Condones Them

Leaks of classified information and the government’s responses to them are the subject of a new study by David Pozen of Columbia Law School.

The starting point for his examination is the “dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.”  How can this disconnect be understood?

Leaks benefit the government, the author argues, in many ways. They are a safety valve, a covert messaging system, a perception management tool, and more.  Even when a particular disclosure is unwelcome or damaging, it serves to validate the system as a whole.

This thesis may explain why the number of leak prosecutions is still lower than might be expected, given the prevalence of leaks, and why new legislative proposals to combat leaks have met with a lukewarm response from executive branch officials.

“The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures.”

The article is full of stimulating observations woven into an original and provocative thesis.  See The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information by David Pozen, to be published in Harvard Law Review.

China and WMD Proliferation, and More from CRS

The latest products from the Congressional Research Service include the following.

China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues, March 11, 2013

China’s Economic Rise: History, Trends, Challenges, and Implications for the United States, March 4, 2013

Cybersecurity: Authoritative Reports and Resources, March 8, 2013

Workforce Investment Act (WIA) Reauthorization Proposals in the 113th Congress: Comparison of Major Features of Current Law and H.R. 803, March 12, 2013

Higher Education Tax Benefits: Brief Overview and Budgetary Effects, March 12, 2013

The Role of Local Food Systems in U.S. Farm Policy, March 12, 2013

Budget Issues Shaping a Farm Bill in 2013, March 11, 2013

Latin America and the Caribbean: Fact Sheet on Leaders and Elections, March 12, 2013

Major U.S. Arms Sales and Grants to Pakistan Since 2001, March 7, 2013

Bradley Manning Takes Responsibility

At an open hearing on February 28, Pfc. Bradley Manning said that he was responsible for providing U.S. government documents to the WikiLeaks website, including a large collection of U.S. State Department cables, a video of a brutal U.S. Army helicopter attack in Baghdad, and other records.

“The decisions that I made to send documents and information to the WLO [WikiLeaks Organization] and website were my own decisions, and I take full responsibility for my actions,” he told the military court.

The Army belatedly released a redacted copy of Pfc. Manning’s statement yesterday. [Correction: The redacted statement was released by Manning's defense counsel, David E. Coombs.] (An unofficial version had been privately transcribed by Alexa O’Brien soon after the hearing.)

The Freedom of the Press Foundation obtained an audio recording of the statement, which it released online.

Manning eloquently expressed his motivations for the unauthorized disclosures, including the need to expose corruption and deception in the conduct of diplomacy and military operations. He described the efforts he made to weigh the possible damage that might result from disclosure, and the judgment he made that release of the records was the appropriate step.

But he did not acknowledge that any other individuals had been placed at risk by his actions, nor did he take responsibility for any consequences they might suffer. Taliban leaders said in 2010 that they were scrutinizing the Afghanistan war records published by WikiLeaks and that they would “punish” persons listed in the records who were found to have cooperated with the U.S. military.

 

FOIA in the 113th Congress, and More from CRS

The latest products from the Congressional Research Service include these items.

Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress, March 8, 2013

What’s the Difference? — Comparing U.S. and Chinese Trade Data, February 25, 2013

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, March 8, 2013

Hugo Chavez’s Death: Implications for Venezuela and U.S. Relations, March 8, 2013

“Sense of” Resolutions and Provisions, March 11, 2013

U.S. Immigration Policy: Chart Book of Key Trends, March 7, 2013

Feds Add New Espionage Act Charge Against Linguist

Last fall, Navy contract linguist James Hitselberger was charged under the Espionage Act with two counts of unlawful retention of national defense information after several classified documents were allegedly found in his possession.  (See “Document Collector Charged Under Espionage Statute,” Secrecy News, November 7, 2012.)

Two weeks ago, in a superseding indictment, prosecutors added a third charge of unlawful retention under the Espionage Act, along with three other counts of unauthorized removal of a public record.

Mr. Hitselberger’s public defenders responded with a battery of pre-trial motions, including a new challenge to the constitutionality of the Espionage Act itself.

The defense attorneys said the indictment against Mr. Hitselberger is “multiplicious,” meaning that a single offense has been alleged in multiple, redundant counts. This is an impermissible practice that is considered prejudicial to a defendant.  Mulitplicious counts “afford the government an unfair advantage by increasing the likelihood that the jury will convict on at least one count, if only as the result of a compromise verdict.”  The defense asked the court to compel prosecutors to choose between Count One and Count Two, “both of which charge the same offense of unlawful retention of national defense information.”

Defense attorneys also moved for a “bill of particulars” to require the government to identify exactly which “national defense information” Mr. Hitselberger is accused of unlawfully retaining in violation of the Espionage Act.

“Even if the documents at issue here are classified and the government proves beyond a reasonable doubt the Mr. Hitselberger retained them, the government must establish that information within these documents constitutes national defense information…. [Yet] much (if not all) of the information contained in the documents is publicly available information…. In order to prepare for trial without needlessly preparing to respond to irrelevant information or guessing at what the government deems relevant, defense counsel must be directed to the portions of the documents that the government claims constitute national defense information.”

But perhaps the most interesting motion filed by the defense, and one which adds a dimension beyond the particular facts of Mr. Hitselberger’s case, asks the court to find the unlawful retention statute of the Espionage Act unconstitutionally vague.

Every leak prosecution has included a defense challenge to the constitutionality of the Espionage Act, almost as a matter of course.  The constitutionality of the Act has consistently been upheld, though sometimes with limiting factors imposed by the court.  In any event, the Hitselberger motion, filed by public defenders A.J. Kramer and Mary Manning Petras, carefully distinguishes the current matter from previous cases.  At several points the motion included striking insights from Melville Nimmer and other legal scholars to bolster its argument.  The result is something more than a pro forma gesture.

The Espionage Act prohibition on unlawful retention of national defense information (18 USC 793e) “is a statute of alarming breadth and little definition,” the defense attorneys concluded. “Because the statute is vague, this Court should dismiss Counts One, Two and Three of the indictment.”

Other motions filed by the defense and the prosecution are posted here.

Mr. Hitselberger is not accused of espionage, nor is he suspected of acting on behalf of a foreign power.

When Can a Court Reject an Agency Classification Claim?

Last year, DC District Judge Richard W. Roberts ordered the U.S. Trade Representative to disclose a classified document to a FOIA requester because, he said, the classification of the document was not properly supported.  That ruling in Center for International Environmental Law v. Office of the U.S. Trade Representative was a startling judicial rebuff to executive classification authority of a sort that had not been seen in many years, and the government quickly appealed.

In oral arguments in the DC District Appeals Court last month, government attorneys all but declared that a court has no power to overrule an executive branch classification decision.  The transcript of that February 21 hearing has just become available.

Judge Roberts’ “substitution of [his] judgment about likely harm to foreign relations [that could ensue from disclosure] fails to give the deference that’s due to the Executive in this sensitive area of foreign relations and national security, and is entirely inconsistent with this Court’s consistent case law over many decades that emphasizes the need for such deference,” argued H. Thomas Byron, III, on behalf of the U.S. Trade Representative.

Circuit Court Judge Brett Kavanaugh asked Mr. Byron whether there were any circumstances in which a court could reject a classification claim.

“When do you think a Court could ever disagree with the Executive’s determination in this kind of case?” Judge Kavanaugh asked.

Mr. Byron that if the agency’s declarations in support of classification are logical and plausible, then the agency is entitled to judicial deference.

“Isn’t that going to cover 100 percent of the cases?” Judge Kavanaugh asked.

“I certainly think, Judge Kavanaugh, that the Executive would not submit a declaration that was not logical or plausible,” Mr. Byron replied.

Then he went even further and suggested that the executive branch has exclusive constitutional authority over classification policy.

Judge Kavanaugh was inquiring how the government would respond to an argument made in an amicus brief filed by media organizations contending that Congress had mandated judicial review of classification when it amended the FOIA in 1974 in order to enable Courts to review executive classification judgments. Not only that, but when President Ford vetoed the measure, Congress overrode the veto.

Mr. Byron said, “The question is whether those changes [i.e. the 1974 amendments] altered the constitutionally required deference to the Executive in this area under the Separation of Powers Doctrine,” suggesting that the congressional override of President Ford’s veto was meaningless and without effect.

“That’s interesting,” said Judge Kavanaugh. “You don’t think Congress could put the courts in the position of second guessing” the executive?

“Well, when it comes to predictive judgments about harm to national security and foreign relations I think that’s a very difficult question,” Mr. Byron said.

“I agree,” Judge Kavanaugh replied.

Cogent arguments to the contrary were made by attorney Martin Wagner on behalf of the Center for International Environmental Law at the hearing and can be found in the transcript.  An account of the hearing from the Reporters Committee on Freedom of the Press is here.

Sunshine Week Events Aim to Promote Open Government

This week is Sunshine Week, an annual effort sponsored by journalism advocacy and civil society organizations to promote values of open government, freedom of information, and public participation. A rich variety of events are scheduled around the country, most of which are free and many of which will be webcast.

I will be participating in several programs, including these:  Open Government in the Second Term, sponsored by the Center for Effective Government and the Electronic Privacy Information Center on March 12.

The Future of Classification Reform, sponsored by the Brennan Center for Justice on March 14

Freedom of Information Day at the Newseum on March 15

Freedom of Information Day at the Washington College of Law Collaboration on Government Secrecy on March 18

A new report from the Center for Effective Government found reason to praise the Obama Administration’s openness in some areas of government but not in national security, which it said has been a “glaring exception” to progress in other domains.

Among numerous recommendations for future progress, the Center report urged the Department of Justice to renounce the use of criminal prosecution for leaks to the media. “Unauthorized disclosures of restricted information to the media should be handled through administrative channels, not criminal prosecution.”  See Delivering on Open Government: The Obama Administration’s Unfinished Legacy, March 10.

Intelligence Sharing Improves with Allies, Lags with Congress

The Commander of U.S. Central Command said last week that he is “encouraged” by the willingness of U.S. intelligence agencies to share information with military allies, which is becoming “a standard practice rather than the exception.” At the same time, the chair of the Senate Intelligence Committee complained that her committee has not been receiving the intelligence information that it requires to perform its oversight function.

“As I travel throughout the AOR [area of responsibility] and see the promise of new initiatives and the risk posed by numerous challenges, I receive requests from military leaders across the region to increase intelligence sharing between our militaries,” said Gen. James N. Mattis, CENTCOM Commander, in testimony before the Senate Armed Services Committee on March 5.

“In order to demonstrate our commitment, I requested the Intelligence Community to begin drafting releasable products for our most trusted partners in the Levant, on the Arabian Peninsula, in the Central Asian States, and in South Asia as a standard practice rather than the exception,” Gen. Mattis said.

“I am encouraged by the personal attention the Office of the Director of National Intelligence is giving these matters. Director Clapper’s strong emphasis and encouragement for the intelligence community to produce intelligence in a manner that eases our ability to responsibly share information with our military counterparts creates a stronger, more focused front against our common enemies and builds our partner nations’ confidence. We are grateful for the nimble manner in which our intelligence community has strengthened our efforts to checkmate more of our enemy’s designs,” Gen. Mattis testified.

But in a notable contrast, congressional leaders say they have not gotten similar cooperation from the intelligence community, and they have less reason for encouragement.

“There is a very strong feeling on both sides of the aisle that the [intelligence] committee is not receiving the information it needs to conduct all oversight matters in the manner in which we should,” said Sen. Dianne Feinstein, chair of the Senate Intelligence Committee, during the Senate confirmation of John O. Brennan to be CIA Director on March 7.

“There is the matter of Office of Legal Counsel opinions concerning the targeted killing of Americans. The committee needs to understand the legal underpinning of not only this program but of all clandestine programs, of all covert actions, so we may ensure the actions of the intelligence community operate according to law,” Sen. Feinstein said. “Absent these opinions, we cannot conduct oversight that is as robust as it needs to be.”

With respect to the opinions on targeted killing, at least, the committee was finally able to reach an accommodation with the Administration while the confirmation process was pending, which included “staff access and without restrictions on note taking,” she said.

“I want to thank the administration. I think increasingly they understand this problem of the need for us to access more information. It is not a diminishing one, it is a growing one, and it is spreading through this House– and I suspect the other House as well,” Sen. Feinstein said.

Sen. Patrick Leahy, chair of the Senate Judiciary Committee, said he “reluctantly opposed” the confirmation of Mr. Brennan because “the administration has stonewalled me and the Judiciary Committee for too long on a reasonable request to review the legal justification for the use of drones in the targeted killing of American citizens.”