Posts from November, 2013

HPSCI Seeks “Continuous Evaluation” of Security-Cleared Employees

Recent unauthorized disclosures of classified information might have been prevented if U.S. intelligence agencies “continuously evaluated the backgrounds of employees and contractors,” according to the House Permanent Select Committee on Intelligence (HPSCI).

In its new report on the FY 2014 intelligence authorization bill, the Committee would require intelligence agencies to “continuously determine whether their employees and contractors are eligible for access to classified information” by using all available transactional records and social media.

“Continuous evaluation allows the IC to take advantage of lawfully available government and public information to detect warning signals that the current system of five-year periodic reinvestigation misses,” the HPSCI report said.

“That information might include: foreign travel; reports of foreign contacts financial disclosure information; checks of criminal, commercial marketing, and credit databases; and other appropriate publicly available information.”

The recently developed concept of continuous evaluation (CE) “allows for a review at any time of an individual with eligibility or access to classified information or in a sensitive position to ensure that that individual continues to meet the requirements for eligibility,” said Brian Prioletti of the ODNI National Counterintelligence Executive at a November 13 hearing of the House Homeland Security Committee.

“As envisioned in the reformed security clearance process, [continuous evaluation] includes automated record checks of commercial databases, government databases, and other information lawfully available,” Mr. Prioletti said. “Manual checks are inefficient and resource-intensive. The C.E. initiative currently under development will enable us to more reliably determine an individual’s eligibility to hold a security clearance or a sensitive position on an ongoing basis.”

“There are a number of ongoing pilot studies to assess the feasibility of selected automated record checks and the utility of publicly available electronic information to include social media sites in the personnel security process,” he added.

“While we fully recognize the value of publicly available electronic information and its relevancy from an adjudicative perspective, there are resource, privacy, and civil liberty concerns that must be addressed as we incorporate such checks into our security processes,” Mr. Prioletti acknowledged.

Up Next: Continuous Monitoring

“Continuous evaluation” itself is just an interim stage, said Gregory Marshall, chief security officer at the Department of Homeland Security.  It is a stepping stone to the desired end state of “continuous monitoring,” which involves more extensive collection directed at the individual subject. [Update: This is a non-standard use of the term "continuous monitoring," which normally refers to monitoring of information systems, not persons.]

“This administration’s recent information-sharing and safeguarding initiative, also known as Insider Threat, seeks to complement background investigations and continuous evaluation with continuous monitoring,” Mr. Marshall said. “This program will incorporate and analyze data in near-real time from a much broader set of sources. Its focus is the protection of classified information but its applicability to suitability and contractor fitness is evident.”

Indeed, the “applicability” of this approach to all sorts of concerns is evident. If leaks of national security information are deemed to be a counterintelligence threat, why wouldn’t the full arsenal of surveillance tools, including the NSA’s PRISM, be employed against them?

An NSA memorandum reported in the Huffington Post today noted that “vulnerabilities of character” revealed through intelligence gathering can be effectively used to discredit individual “radicalizers.”  In one particularly horrifying case, it was found that a suspect “publishes articles without checking facts.” (“Top-Secret Document Reveals NSA Spied On Porn Habits As Part Of Plan To Discredit ‘Radicalizers’,” by Glenn Greenwald, Ryan Gallagher, and Ryan Grim, November 26).

The Director of National Intelligence recently ordered a review to see whether the number of persons who hold security clearances — nearly 5 million persons — could be reduced. (“Obama Administration Looks to Scrub Security Clearance List” by Josh Gerstein, Politico, November 21).

That objective could be inadvertently advanced by efforts to ratchet up personnel security procedures. Facing continuous evaluation and the prospect of continuous monitoring, some individuals might decide to opt out of the security clearance system voluntarily.

Prioritizing Topics for Declassification

The Public Interest Declassification Board, which advises the President on classification and declassification policy, is proposing to recommend that certain historically significant topics and events be prioritized for expedited declassification.

The Board has invited public input into the formulation of its recommendations for prioritization, which currently fall into five broad categories:  Topics 25 Years Old and Older, Topics 25 Years Old and Younger, Topics Related to Formerly Restricted Data (FRD) Information, General Topics of Interest, and Topics Specifically Gathered from Presidential Libraries.

The working list of potential declassification topics that are less than 25 years old includes many worthy subjects including, for example, 9/11 Commission records and “Guantanamo / Detainee issues.”  On the other hand, it does not yet include many other high priority items for declassification, such as the Senate Intelligence Committee’s massive report on CIA interrogation practices.

“We invite the public to comment on these topics and offer its own suggestions on what should be on this list of topics younger than 25 years,” the Board statement said. “We hope the List will serve as a guide to aid agencies in reviewing the information the public wants to see.  This is your opportunity to spark a much-needed conversation about the sustainability of the current declassification system and what our priorities collectively should be to make the most impact.”  Comments can be submitted through the Board’s blog, Transforming Classification.

But Is Prioritizing Declassification Topics the Right Approach?

There is a longstanding disagreement over whether it is appropriate to prioritize some areas for declassification because of their topicality, or whether it is better to gradually declassify everything in an orderly and systematic way.  (Or whether the right answer, as I thought, was to do some of both.)

Some have argued that prioritization of special declassification projects is the wrong way to go.

“If effective, routine, comprehensive systematic declassification review were in place for all agencies, and if the public believed in the integrity and thoroughness of those review processes, then important documentation… would be routinely reviewed and declassified without an expensive special search,” said Rutgers historian Warren F. Kimball at a 2000 hearing of the Senate Committee on Governmental Affairs.

“Those boutique declassification efforts… devour resources that should go to systematic declassification review,” Prof. Kimball said then. “Some of those special searches have been legitimate. Some have been trivial. Many have been repetitive and unrewarding…. All have been exorbitantly expensive in both money and work hours. All were or should have been unnecessary.”

Not only are topic-based “special searches” more resource-intensive than regular, systematic declassification, but they may also subtly distort the historical record by removing individual documents from their context, and by favoring “popular” topics over others whose deeper significance may be unrecognized.

That may all be true, say proponents of prioritization.  But the reality is that many records that are supposedly “historically valuable” are of no interest to anyone, and will not be read even if they are declassified.  And besides, the current systematic declassification review  program cannot keep up with the current and anticipated declassification workload.  So in practice, there is little choice but to prioritize.

Whichever argument seems more persuasive, the Public Interest Declassification Board, composed of presidential and congressional appointees, has now tipped the balance in favor of prioritization.  The support of the Board doesn’t guarantee that it will happen, but it makes the issue a newly live one.

If prioritization of particular declassification topics does go forward, then there are important questions to consider beyond the identification of the topics themselves. One question is, how can the declassification of the prioritized topics be made as productive as possible?  Another question is, what happens to all the documents that are not prioritized?

Revise the Standards for Prioritized Declassification

Specialized declassification projects have the greatest impact when they do more than simply move a particular topic to the front of the queue for declassification. The best of them, like the one performed by the JFK Assassination Records Review Board, also involve revised standards for declassifying the prioritized information in order to maximize disclosure.

Interestingly, it appears that agencies already tend to be more forthcoming in declassification projects that they initiate themselves than they are when applying legacy declassification standards in response to FOIA requests. This is true even (or especially) in the case of secrecy-intensive organizations like CIA or NSA. (The CIA and the National Declassification Center will sponsor a symposium in January on the history of the Berlin Wall featuring some newly declassified documents.)

In any event, the utility of the prioritization approach to declassification could be maximized if the adoption of a prioritized topic were accompanied by an appropriate revision of declassification criteria to ensure that only the least necessary amount of information relevant to the topic will be withheld. (Ideally, such a revision of project-related declassification standards would be performed or supervised by an independent third party, such as the Interagency Security Classification Appeals Panel.)

An updated review of classification and declassification criteria is clearly necessary in order to overcome residual, obsolete barriers to disclosure.

When DNI James Clapper released voluminous records concerning foreign intelligence surveillance programs last week, he noted that “President Obama directed me to declassify and make public as much information as possible about certain sensitive programs while being mindful of the need to protect sensitive classified intelligence activities and national security.”

The tacit implication was that without the President’s direction, the DNI would not “declassify and make public as much information as possible….”  Similar direction to “declassify as much as possible” ought to be applied in the case of each prioritized declassification project.

Set a Drop Dead Date for Classification to Expire

A necessary consequence of prioritization of some records for declassification is that other records will be pushed back in the queue. What this means is that, without remedial action, more and more records may never be declassified.

President Obama’s executive order 13526 declared for the first time that “No information may remain classified indefinitely” (section 1.5d).  But it is not clear how that dictum is to be translated into actual declassification policy.

Records that were exempted from “automatic declassification” at 25 years were supposed to be automatically declassified beginning at the end of this year when they turned 50 years old.  Exceptions had been provided for records that revealed the identities of human intelligence sources or of key design concepts for weapons of mass destruction.  In practice, however, it appears that much more than such narrow categories will now be withheld.  According to a January 23, 2013 notice from the Information Security Oversight Office, numerous agencies have been granted authority to exempt records from declassification even at the 50 year point.

Unfortunately, this continuing deferral of declassification compounds the problem and may take it beyond any practical resolution.

What is needed instead is a “drop dead date” beyond which classification controls will simply expire.  Records of a certain age would not need to be “reviewed” for declassification. In fact, they would not need to be formally “declassified” at all. Rather, their status as classified records would just terminate.

A drop dead date would be consistent with the President’s direction that classification cannot continue indefinitely.  And as backlogs of classified records continue to accumulate, this approach would finally cut through the endless and increasingly intractable cycle of declassification review.

If, as the PIDB recommends, some records are going to be prioritized for declassification, then new consideration should be given to a drop dead date for all of those classified records that remain “unprioritized” for decade after decade.

In its version of the pending FY 2014 intelligence authorization bill (section 307), the Senate Intelligence Committee proposed to extend the charter of the Public Interest Declassification Board from December 2014, when it would otherwise expire, to December 2018.

Mexico’s Oil and Gas, and More from CRS

New and newly updated reports from the Congressional Research Service that Congress has declined to make available to the public online include the following.

Mexico’s Oil and Gas Sector: Background, Reform Efforts, and Implications for the United States, November 18, 2013

U.S.-Mexico Water Sharing: Background and Recent Developments, November 19, 2013

Interstate Natural Gas Pipelines: Process and Timing of FERC Permit Application Review, November 19, 2013

Cancellation of Nongroup Health Insurance Policies, November 19, 2013

Preserving Homeownership: Foreclosure Prevention Initiatives, November 20, 2013

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, November 18, 2013

U.S.-China Military Contacts: Issues for Congress, November 20, 2013

Central Asia: Regional Developments and Implications for U.S. Interests, November 20, 2013

Algeria: Current Issues, November 18, 2013

U.S. Textile Manufacturing and the Trans-Pacific Partnership Negotiations, November 20, 2013

IG Finds Classification Program at EPA Full of Errors

A new review by the Inspector General of the U.S. Environmental Protection Agency found that classified documents at the Agency are riddled with errors.

Because the EPA has a minuscule classification program that hardly generates any classified material, it may be seen as a microcosm of the larger classification system. Only eight original classifications have been approved since the EPA Administrator was given authority to classify by President Bush in 2002, with a modest number of derivative classifications based on those.

Even so, the Inspector General wrote, “Our review of both originally and derivatively classified documents generated by three offices found that the EPA does not sufficiently follow national security information classification standards.”

“Of the two originally classified documents we reviewed, portions of one needed different classification levels and the other contained numerical data that was incorrectly transferred from another document,” the IG report said.

Meanwhile, “None of the 19 derivatively classified documents we reviewed completely met the requirements of Executive Order 12356 and the implementing regulations.”

See EPA Does Not Adequately Follow National Security Information Classification Standards, Environmental Protection Agency Office of Inspector General, November 15, 2013.

Some of the IG’s objections seem persnickety.

“A classified paragraph portion was incorrectly marked as U/FOUO rather than as U//FOUO,” the report stated. This is considered a problem because “Having one versus two slashes can change the meaning.”

Other findings can easily be generalized to the entire classification system.

“EPA needs to declassify information in a timelier manner,” the IG said.

As with other agency IG reviews of classification policy required under the Reducing Over-Classification Act, the EPA Inspector General deliberately took a superficial view of the problem of overclassification. The IG review examined EPA compliance with existing classification policies and procedures. But it did not consider whether those policies and procedures are themselves to blame for widespread overclassification and, if so, how they ought to be changed.

Secrecy News From All Over

The Director of National Intelligence yesterday declassified and released hundreds of pages of records concerning collection under the Foreign Intelligence Surveillance Act, illuminating the origins of bulk collection of email metadata, as well as interactions with the FISA Court and Congress.

“We will make the information public that we can make public, and we will be more transparent about this than has ever been the case in history,” said White House press secretary Jay Carney at an October 28 news briefing.  “That is already true.  We have released more information about what the NSA [does] than has ever been released before.”

By themselves, the latest disclosures (provided in response to FOIA litigation brought by ACLU and EFF) are unlikely to resolve ongoing disputes about NSA intelligence gathering. The legitimacy of bulk collection of email and telephone metadata may ultimately be more of a value judgment rather than a factual or legal one. At a minimum, perhaps the new documents will provide a more substantial basis for informed debate.

But there is disagreement even about that.

“Some would like to believe these disclosures have started a debate about the propriety and efficacy of NSA surveillance programs but, in fact, to a substantial degree, recent unauthorized disclosures have ended the debate because, once disclosed, the programs at issue become substantially less effective,” according to a November 12 report from the Senate Intelligence Committee. “The nation will suffer as a result.”

The Public Interest Declassification Board will hold an open meeting at the National Archives on Thursday, November 21. The Board proposes to focus on prioritizing topics and events for declassification. The intended emphasis is on declassification of historical records, but it need not be limited to that.

Although willful abuse of classification authority is not unheard of, there seems to be no case in which it has ever been penalized. “I am extremely concerned that the integrity of the classification system continues to be severely undermined by the complete absence of accountability in instances such as this clear abuse of classification authority,” wrote J. William Leonard, the former director of the Information Security Oversight Office, in an October 18 letter. He was responding to the controversial classification of evidence concerning the defilement of human remains in Afghanistan.  See Marine Corps fight escalates over handling of case involving troops urinating on corpses, Washington Post, November 15;  and Marine Corps Commandant Accused of Improper Classification, Secrecy News, July 30.

Poverty in the United States, and More from CRS

“In 2012, 46.5 million people were counted as poor in the United States,” according to a newly updated annual report from the Congressional Research Service.  “The number, statistically unchanged over the past three years, is the largest recorded in the measure’s 54-year history.”

“Poverty in the United States increased markedly from 2007 through 2010, in tandem with the economic recession (officially marked as running from December 2007 to June 2009). Little if any improvement in the level of ‘official’ U.S. poverty has been seen since the recession’s official end, with the poverty rate remaining at about 15% for the past three years.” See Poverty in the United States: 2012, November 13, 2013.

Other new or updated CRS reports that Congress has sought to withhold from online public distribution include the following.

China’s Political Institutions and Leaders in Charts, November 12, 2013

Internet Governance and the Domain Name System: Issues for Congress, November 13, 2013

Multilateral Development Banks: Overview and Issues for Congress, November 8, 2013

Georgia’s October 2013 Presidential Election: Outcome and Implications, November 4, 2013

Health Benefits for Members of Congress and Certain Congressional Staff, November 4, 2013

 

Leaks Divide Supporters, Opponents of Media Shield Bill

A bill that is intended to strengthen the ability of reporters to protect their confidential sources would encourage damaging leaks of classified information, congressional opponents argue.

The Free Flow of Information Act (S. 987) was approved by the Senate Judiciary Committee on September 12 by a vote of 13-5.  The Committee’s report on the bill, which includes a lengthy dissent from several Republican Senators, was published late last week.

The Act would establish a “qualified” reporter’s privilege whose application would be limited in several respects.

So, for example, the privilege would not apply to “information obtained as a result of the journalist’s eyewitness observation of an alleged crime, or as a result of alleged criminal conduct by the journalist.” However, the Act’s protections would apply to leaks (“when the communication of the material is itself the alleged criminal conduct”).

But even with respect to leaks, the privilege would not be absolute, and disclosure of confidential source information could be required by a court under some circumstances, including the prevention of terrorism.

“In cases that involve alleged unauthorized disclosures of properly classified information (‘leaks’), the Act allows a court to compel the disclosure of confidential-source information where disclosure would assist in preventing or mitigating an act of terrorism or acts that are reasonably likely to cause significant and articulable harm to national security,” the new Committee report explained.

The bill’s limited scope of protection would “give generous berth for the Government to obtain the vital information that it needs in order to protect public safety,” the Committee report said. “At the same time, these provisions prevent journalists from becoming the witnesses of choice in civil and criminal cases.”

The Free Flow of Information Act has been criticized by some press freedom advocates because it presumes to define who is — and who is not — a covered journalist that is protected by the Act; or because it would actually validate official measures to compel disclosure of sources in some cases.

But neither these ambiguities nor the bill’s cautiously even-handed approach were sufficient to reassure opponents on the Senate Committee, who insisted that the legislation would wrongly protect leakers and foster more leaks.

“Instead of making it easier for investigators and prosecutors to bring to justice those who would imperil our national security, the Committee has endorsed legislation that would do the exact opposite by explicitly protecting leakers of classified information and increasing the burden on those who seek to bring these leakers to justice,” wrote Senators Jeff Sessions and John Cornyn in a dissenting statement appended to the Committee report.

“The cumulative effect of this burden would cripple the government’s ability to identify and prosecute leakers of classified information, and in the process would encourage more leaks that threaten national security.”

The bill “severely hinders the government’s ability to identify the sources of leaked classified information,” they complained. “Sources that hide behind journalists’ promises of confidentiality in order to perpetrate wrongdoings, such as the leaking of classified information, will receive protection under S. 987.”

In short, from the opponents’ perspective, “This bill sets forth special standards that place protecting a leaker’s identity ahead of the safety and security of the country.”

“It is axiomatic that if Congress protects leakers of classified and other sensitive information by passing S. 987, what will result is more leaks of classified information.”

“S. 987 will encourage leakers of classified or grand jury information to get away with clear violations of federal law, so long as the recipient of the information promises to keep the leaker’s identity a secret.”

“An individual who leaks classified or grand jury information commits a grievous crime and does not deserve the protection afforded by a journalist’s successful assertion of privilege. If leakers of classified or grand jury information are protected under S. 987, we believe that more leaks will result and it will be harder to prosecute them,” the dissenting Senators wrote.

Subpoena proceedings against reporter James Risen in the leak prosecution of former CIA officer Jeffrey Sterling have been stayed at Risen’s request pending a petition on the matter to the U.S. Supreme Court.

Pentagon Drone Programs Taper Off (and New Military Doctrine)

The Department of Defense budget for research and procurement of unmanned aerial systems (UAS), or drones, is on a distinctly downward slope.

The FY 2014 budget request included $2.3 billion for research, development, and procurement of unmanned aerial systems, a decrease of $1.1 billion from the request for the fiscal year 2013.

“Annual procurement of UAS has gone from 1,211 in fiscal 2012 to 288 last year to just 54 in the proposed FY14 budget,” according to a recently published congressional hearing volume.

See “Post Iraq and Afghanistan: Current and Future Roles for UAS and the Fiscal Year 2014 Budget Request,” hearing before the House Armed Services Committee, April 23, 2013.

Among the questions for the record published in the new hearing volume, DoD officials were asked: “Who is responsible for developing privacy protections for military UAV operations inside the United States?”

Some other noteworthy new doctrinal and congressional defense-related publications include the following.

Joint Intelligence, Joint Publication 2-0, Joint Chiefs of Staff, October 22, 2013

Civil-Military Engagement, ATP 3-57.80, US Army, October 2013

Espionage Threats at Federal Laboratories: Balancing Scientific Cooperation While Protecting Critical Information, hearing before the House Science, Space and Technology Committee, May 16, 2013

Budget Request for National Security Space Activities, House Armed Services Committee, April 25, 2013

Text of the NATO Agreement for the Sharing of Atomic Energy Information (ATOMAL), As Amended, September 19, 2013

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