Posts from December, 2013

A History of History: The Story of the FRUS Series

The Foreign Relations of the United States (FRUS) series is the official documentary record of U.S. foreign policy published by the U.S. Department of State. The origins, development and continuing evolution of the FRUS series are explored in a massive new history prepared by the State Department Office of the Historian. See “Toward ‘Thorough, Accurate and Reliable’: A History of the Foreign Relations of the United States Series” by William B. McAllister, Joshua Botts, Peter Cozzens, and Aaron W. Marrs, Department of State, December 19, 2013.

Dating back to the Civil War — the Abraham Lincoln Administration — FRUS long predates the existing national security classification and declassification regimes.  But from the start it has manifested and reinforced the impulse towards open government to a remarkable if imperfect degree. It appears to surpass any comparable effort to systematically and publicly document foreign policy by any other government in the world.

But more than a mere expression of open government, the FRUS series has been a battleground on which fundamental issues of secrecy and disclosure have been fought. Generations of officials, historians, journalists and others have disputed the timeliness of FRUS publications and their completeness, and weighed the demands of national security against the imperatives of historical integrity, with outcomes that shifted and diverged through the series.

“One might imagine individual FRUS volumes as akin to tree rings: each iteration records the environmental conditions from which it emerged; a broader story unfolds by examining change over time,” wrote historians William B. McAllister and Joshua Botts.

The advances, compromises and setbacks that characterized the evolution of the FRUS series are recounted in impressive and illuminating detail in the new historical study.

One of the themes that emerges is that the series progressed “dialectically,” in a continuing clash between conflicting interests in secrecy and disclosure.

So, for example, one of the main factors in the the post-World War II development of FRUS was the unauthorized disclosure of a classified compilation known as the Yalta Papers, which was a study of FDR’s wartime diplomacy.  The leak of the Yalta Papers by a FRUS historian in 1954 (which in some respects prefigured the Vietnam-era leak of the Pentagon Papers) catalyzed methodological changes in the production, timeliness and oversight of the FRUS series (see Chapter 7).

Meanwhile, excesses of secrecy generated their own corrective reactions. The suppression of information about US covert action in a FRUS volume on Iran, for example, helped instigate a statutory requirement that the FRUS series must be “thorough, accurate and reliable,” thereby strengthening the hand of openness advocates inside and outside the Department (Chapter 11).

The new history of FRUS is not a polemic or a piece of advocacy. It is a scrupulous account of the multiple and diverse perspectives that generated the FRUS series throughout its history. (And those who care about the series or participated in its development will find much of it gripping reading.)

But after hundreds of pages, the State Department authors allow the conclusion that in the conflict between secrecy and disclosure, it is secrecy that been the greater problem for FRUS, for the Department and for the US Government:

“The most significant negative repercussions attributable to the FRUS series have not involved damaging releases of potentially-sensitive national security or intelligence information. Rather, the reputation of the U.S. Government has suffered primarily from failures of the series to document significant historical events or acknowledge past actions.”

“FRUS realizes its promise when it fulfills global expectations for openness that promote democracy and encourage human freedom.”

The new FRUS history will be the subject of a panel discussion at the upcoming Meeting of the American Historical Association on January 4 in Washington, DC.

Two-Decade Review Yields History of Covert Action in Congo

After a declassification review that lasted nearly twenty years, the history of CIA covert action in the Congo from 1960 to 1968 was finally published last week by the State Department, filling an awkward gap in the historical record.

“In August 1960, the U.S. Government launched a covert political program in the Congo lasting almost 7 years, initially aimed at eliminating [Prime Minister Patrice] Lumumba from power and replacing him with a more moderate, pro-Western leader,” an editorial note introducing the new publication stated. See Foreign Relations of the United States (FRUS), 1964-1968, Volume XXII, Congo, 1960-1968.

“The U.S. Government provided advice and financial subsidies…. These funds were to be channeled in such a way as to conceal the U.S. Government as a source.”

“At the same time, based on authorization from President Eisenhower’s statements at an NSC meeting on August 18, 1960, discussions began to develop highly sensitive, tightly-held plans to assassinate Lumumba. After Lumumba’s death at the hands of Congolese rivals in January 1961, the U.S. Government authorized the provision of paramilitary and air support to the new Congolese Government….”

“In addition, the covert program included organizing mass demonstrations, distributing anti-Communist pamphlets, and providing propaganda material for broadcasts,” the editorial introduction said.

The new publication supplements previously published official histories of U.S. policy during the Congo Crisis, which were harshly criticized by historians and others for withholding documentary evidence of U.S. covert action.

By excluding CIA covert action, the 1994 FRUS volume on the Congo Crisis “omitted vital information, suppressed details concerning US intervention, and generally provided a misleading account of the Congo crisis,” wrote David N. Gibbs, a political scientist at the University of Arizona in a review entitled “Misrepresenting the Congo Crisis” (African Affairs: Journal of the Royal African Society, vol. 95, no. 380, pp. 453-459, 1996).

In another 1995 paper on Secrecy and International Relations, Prof. Gibbs said the persistent classification of the Congo covert action exemplified the use of secrecy to evade the democratic process.

“According to this approach, governments seek to conceal potentially controversial activities or ones that could generate public opposition,” he wrote. “In the Congo case secrecy successfully concealed government activities (such as the efforts to assassinate Lumumba) that were potentially very controversial.”

Historian Philip Zelikow told his colleagues on the State Department Historical Advisory Committee in 1999 that by refusing to admit the role of covert action, the earlier Congo volume “did enormous damage to the credibility of the Foreign Relations series and of the CIA.”

The current Historian of the State Department, Dr. Stephen P. Randolph, acknowledged that the earlier FRUS volumes “did not… contain documentation of the U.S. covert political action program. There were also no records in the two volumes concerning U.S. planning and preparation for the possible assassination of Patrice Lumumba.”

“This volume consists of a selection of the most significant of those previously unavailable documents,” Dr. Randolph wrote in the Preface to the new FRUS volume.

The first part of the new volume “contains numerous CIA cables to and from the Station in Leopoldville, which documents the chaotic nature of the Congo crisis and the pervasive influence of U.S. Government covert actions in the newly independent nation,” he wrote.

The second part “documents the continuation of the U.S. covert political action programs and their role in providing paramilitary and air support to the Congolese Government in an effort to quell provincial rebellions.”

Astonishingly, “The declassification review of this volume began in 1994 and was finally completed in 2013.”  Even so, it resulted in a number of redactions, some of which are not very credible.

The Central Intelligence Agency insisted on censoring cost figures for its covert action programs, even when they are half a century old. So, for example, document 170 in the new collection states that “To date covert support of Adoula’s government has cost a total of [dollar amount not declassified].”

A helpful editorial note (at p. 5), however, supplies some of the missing information: “The Special Group/303 Committee-approved aggregate budget for covert action in the Congo for the years 1960-1968 totaled approximately $11,702,000 (Political Action, $5,842,000; Air Program, $3,285,000; and Maritime Program, $2,575,000).”

The State Department Historical Advisory Committee, composed of non-governmental historians, advised and supervised the preparation of the final manuscript, and ultimately recommended its publication.

Even with the remaining redactions, the Committee said it “assesses the volume as a reliable guide to the trajectory of U.S. policy toward the Congo from 1960 until 1968 and an exceptionally valuable addition to the historical record.”

Orgs Ask DNI to Preserve Access to World News Connection

More than a dozen professional societies and public interest groups wrote to the Director of National Intelligence last week to ask him to preserve public access to foreign news reports gathered, translated and published by the Open Source Center and marketed to subscribers through the NTIS World News Connection.

The CIA, which manages the Open Source Center for the intelligence community, intends to terminate public access to the World News Connection at the end of this month. (CIA Halts Public Access to Open Source Service, Secrecy News, October 8.)

Among other things, the groups said that this move is inconsistent with the President’s Open Government National Action Plan.

Rather than reducing the existing level of public access, “the U.S. government should expand public access to open source intelligence by publishing all unclassified, uncopyrighted Open Source Center products.”

The December 18 letter was coordinated by the National Coalition for History and is posted here.

Mary Webster, the Open Source Center Deputy Director for Information Access at CIA, did not respond to a request for comment.

BBC Monitoring in the United Kingdom provides a global news aggregation service that is comparable to the NTIS World News Connection and even includes many of the same translations.  A spokeswoman for BBC Monitoring told Secrecy News that her organization would gladly welcome new American customers if the US Government is unable or unwilling to meet their needs.

Intel Review Group Urges Reduced Secrecy

Updated below

The report of a White House advisory group on intelligence surveillance said that reducing undue secrecy was one of its main objectives.

“A central goal of our recommendations is to increase transparency and to decrease unnecessary secrecy, in order to enhance both accountability and public trust,” the report of the President’s Review Group on Intelligence and Communications Technologies stated (p. 80). “Excessive surveillance and unjustified secrecy can threaten civil liberties, public trust, and the core processes of democratic self-government (p. 12)”

The Review Group specifically recommended that “detailed information” about legal authorities to compel disclosure about communications records be made public and that “general data” concerning orders to disclose telephone records and other business records be routinely disclosed as well (Recommendations 7-10).

In a more tentative, roundabout way, the report implied that the NSA program to collect telephone metadata in bulk should not have been classified.

“We recommend that the decision to keep secret from the American people programs of the magnitude of the section 215 bulk telephony meta-data program should be made only with due consideration of and respect for the strong presumption of transparency that is central to democratic governance. A program of this magnitude should be kept secret from the American people only if (a) the program serves a compelling governmental interest and (b) the efficacy of the program would be substantially impaired if our enemies were to know of its existence,” the report stated (Recommendation 11).

But the force of this recommendation is diminished by the fact that the proponents of the NSA telephony metadata collection program clearly believed that both of the stated criteria had been met in that case.

More generally, “There is a compelling need today for a serious and comprehensive reexamination of the balance between secrecy and transparency,” the Review Group stated (page 125).

But the adjectives — compelling, serious, comprehensive — are left to do most of the work here.  The proposed reexamination of national security secrecy policy is beyond the Review Group’s scope and is not to be found in this report.

“At the very least, we should always be prepared to question claims that secrecy is necessary,” the report said. “That conclusion needs to be demonstrated rather than merely assumed.”

Not only that, but “Part of the responsibility of our free press is to ferret out and expose information that government officials would prefer to keep secret when such secrecy is unwarranted.”

The Review Group’s most significant recommendation was that the NSA should no longer be permitted to routinely acquire telephone metadata of US persons in bulk, a step that if adopted would significantly transform existing intelligence surveillance programs.

“As a general rule…, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes,” the report stated (p. 17)

One way to appreciate the audacity of the Review Group is to compare its report with the original tasking that it received from President Obama in his August 12 memorandum to the Director of National Intelligence.

“The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust,” the President wrote.

This was a weak formulation that barely specified a coherent problem.  But the Review Group took it and ran with it, filling in gaps along the way.

Although the President gave prominence in this one-sentence tasking to “unauthorized disclosure,” that term is only mentioned twice in the 300 page Review Group report (though a revamping of security clearance procedures is the subject of Recommendations 37-41). The matter of “public trust” seemed to be given greater weight and is referenced 18 times.

Meanwhile, although “civil liberties” was not mentioned in the President’s memorandum at all, it appears more than 50 times in the report. And “privacy,” which was likewise outside the Review Group’s explicit terms of reference, is mentioned well over 100 times.

As if to justify its somewhat expansive interpretation of its assignment, the Review Group argued that privacy is actually a type of security.

“The United State Government must protect, at once, two different forms of security: national security and personal privacy” (p. 43). If this seems contrived, the Review Group offered the Latin etymology of the word “securus,” which it claimed encompasses both physical security and personal privacy (p. 45). So…

At any rate, the Review Group exceeded expectations by providing an independent, critical assessment of the issues it was directed to review. Although its non-binding recommendations by themselves do not compel any changes, they already seem to have altered the policy landscape. And together with a December 16 court ruling that NSA bulk collection programs “likely violate the Fourth Amendment,” they appear to have substantially shifted the center of the debate.

Update: Although the President’s August 12 memorandum did not mention privacy or civil liberties, the White House press secretary issued an August 27 statement about the Review Group which did include these terms.

DNI Directive on Supply Chain Risk Management

Because the Intelligence Community utilizes commercial products including those that may be manufactured abroad, it could be vulnerable to threat or compromise through its supply chain.  Intelligence Community Directive 731 issued by Director of National Intelligence James Clapper on December 7 establishes IC policy on “Supply Chain Risk Management.”

“Many IC mission-critical products, materials, and services come from supply chains that interface with or operate in a global marketplace. A greater understanding of the risks inherent in the IC’s participation in the global market place is crucial to safeguarding our nation’s intelligence sources, methods, and activities,” the Directive said.

“Supply chain risk management is the management of risk to the integrity, trustworthiness, and authenticity of products and services within the supply chain.”

“It addresses the activities of foreign intelligence entities … and any other adversarial attempts aimed at compromising the IC supply chain, which may include the introduction of counterfeit or malicious items into the IC supply chain,” the Directive said.

China’s Economic Rise, and More from CRS

Newly updated reports from the Congressional Research Service obtained by Secrecy News include the following.

China’s Economic Rise: History, Trends, Challenges, and Implications for the United States, December 17, 2013

Iraq: Politics, Governance, and Human Rights, December 17, 2013

Child Support: An Overview of Census Bureau Data on Recipients, December 16, 2013

Nanotechnology: A Policy Primer, December 16, 2013

The National Nanotechnology Initiative: Overview, Reauthorization, and Appropriations Issues, December 17, 2013

War in Afghanistan: Campaign Progress, Political Strategy, and Issues for Congress, December 17, 2013

Court Rebukes White House Over “Secret Law”

DC District Judge Ellen Segal Huvelle yesterday ordered the Obama Administration to release a copy of an unclassified presidential directive, and she said the attempt to withhold it represented an improper exercise of “secret law.”

The Obama White House has a “limitless” view of its authority to withhold presidential communications from the public, she wrote, but that view is wrong.

“The government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight– to engage in what is in effect governance by ‘secret law’,” Judge Huvelle wrote in her December 17 opinion.

“The Court finds equally troubling the government’s complementary suggestion that ‘effective’ governance requires that a President’s substantive and non-classified directives to Executive Branch agencies remain concealed from public scrutiny,” she wrote.

Judge Huvelle ordered the Administration to provide the directive to the non-profit Center for Effective Government, which had filed suit under the Freedom of Information Act for its release.

The directive in question, Presidential Policy Directive (PPD) 6, “is a widely-publicized, non-classified Presidential Policy Directive on issues of foreign aid and development that has been distributed broadly within the Executive Branch and used by recipient agencies to guide decision-making,” the Judge noted. “Even though issued as a directive, the PPD-6 carries the force of law as policy guidance to be implemented by recipient agencies, and it is the functional equivalent of an Executive Order.”

“Never before has a court had to consider whether the [presidential communications] privilege protects from disclosure under FOIA a final, non-classified, presidential directive.”

The Center for Effective Government had argued that “PPD-6 is not protected by the presidential communications privilege because it was not made in the course of making decisions, but instead is the final decision itself….”

In response, the government contended that PPD-6 “is protected by the privilege because, regardless of how widely the document has been distributed within the Executive Branch, it originated with the President….”

Significantly, Judge Huvelle insisted on examining the document herself in camera instead of simply relying on the Administration’s characterization of the document.  Having done so, she found that it “is not ‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.”

She criticized the government for “the unbounded nature” of its claim. “In the government’s view, it can shield from disclosure under FOIA any presidential communication, even those — like the PPD-6 — that carry the force of law, simply because the communication originated with the President…. The Court rejects the government’s limitless approach….”

Several significant points emerge from this episode.

First, President Obama’s declared commitment to “creating an unprecedented level of openness in Government” has not been internalized even by the President’s own staff. This latest case of “unbounded” secrecy cannot be blamed on the CIA or an overzealous Justice Department attorney. It is entirely an Obama White House production, based on a White House policy choice.

Second, and relatedly, it has proved to be an error to expect the executive branch to unilaterally impose transparency on itself. To do so is to ignore, or to wish away, the Administration’s own conflicting interests in secrecy and disclosure.  Instead, it is the role of the other branches of government to check the executive and to compel appropriate disclosure.

But that does not happen spontaneously either. In this case, it required a Freedom of Information Act lawsuit to be brought by the Center for Effective Government, which was superbly represented by attorneys Julie Murray and Adina Rosenbaum of Public Citizen.

An official Fact Sheet on PPD-6 (which has not yet been released) is available here.

The Electronic Privacy Information Center is currently pursuing release of another presidential directive, the Bush Administration’s NSPD-54 on cyber security. In October, Judge Beryl Howell unexpectedly ruled that that directive was exempt from disclosure because, she said, it was not an “agency record” that would be subject to the FOIA.  Her opinion came as a surprise and was not persuasive to everyone. In a footnote in yesterday’s ruling, Judge Huvelle said that the arguments over the two directives were sufficiently distinguishable that “this Court need not decide if it will follow Judge Howell’s rationale”– suggesting that if pressed, she might not have done so.  Yesterday, EPIC filed a notice of its intent to appeal the decision.

Coincidentally, the Department of Defense yesterday renewed until January 2015 its guidance implementing Presidential Policy Directive 19 on Protecting Whistleblowers with Access to Classified Information.

(Related stories: Politico, Miami Herald).

Update: The Center for Effective Government issued a statement here.

2014 Defense Authorization, and More from CRS

New and updated reports from the Congressional Research Service that have been withheld by Congress from online public distribution include the following.

Defense: FY2014 Authorization and Appropriations, December 16, 2013

Rare Earth Elements: The Global Supply Chain, December 16, 2013

China-U.S. Trade Issues, December 16, 2013

Samantar v. Yousef: The Foreign Sovereign Immunities Act and Foreign Officials, December 16, 2013

Federal Pollution Control Laws: How Are They Enforced?, December 16, 2013

Federal Civil Aviation Programs: In Brief, December 16, 2013

Declassification as a Confidence-Building Measure

In order to restore public trust, the U.S. intelligence community ought to be “aggressive” about reducing classification, former intelligence officials said last week.

Secrecy “is an enormous problem,” said Michael Leiter, who directed the National Counterterrorism Center from 2007 to 2011. “I hope the DNI is very aggressive about moving towards less classification and more effective security clearances.”

He didn’t specify what information he thought should cease to be classified, or exactly how a policy of less classification should be implemented. But he said that current secrecy policies have eroded public confidence.

“I think what Snowden has really illustrated better than anything else is [that] the trust that we need to have in a democratic society between those elements which should remain secret and its public is broken,” Mr. Leiter said. He spoke at a December 11 program on The Current State of Intelligence Reform held at the Bipartisan Policy Center.

“We struck a balance basically in the early 70s — with the FISA Court, Church-Pike– that has broken down,” he said. “And we no longer trust that the HPSCI, or the SSCI, or the FISA Court as its currently constructed or the Privacy and Civil Liberties Oversight Board or the President’s Intelligence Advisory Board– people don’t know those names, they don’t know those acronyms, and they don’t trust the US intelligence Community because people don’t believe those organizations are conducting the oversight they should.”

“So I hope out of this Snowden affair we end up with a new modern form of oversight which provides the trust that we need to do the things that have to remain secret,” he said.

Michael Allen, former staff director of the House Intelligence Committee, defended congressional oversight and said that criticism of the quality of intelligence oversight masked a policy disagreement.

“I think Congress has been working better in these respects in the past few years,” he said.

“The reason I think you see some potshots about congressional oversight as related to the Snowden matter is because Congress knew about the [bulk collection] programs and people who don’t like the programs are mad at Congress for going along with them in the first place. So they assault congressional oversight writ large, when they’re really making a policy judgment that they don’t support the underlying programs, and they’re casting aspersions against anyone who might have known or been comfortable with them,” he said.

But Mr. Allen agreed that the intelligence community needed to provide the public with more insight into its activities and with more access to its products.

“I think for the intelligence community to be able to survive and [for] many of the collection programs to be able to be successful, the intelligence community has got to rethink its declassification policy,” he said.

The IC should “consider trying to put out more examples of where its collection programs have been successful in order to fight for the authorities to keep them.” Likewise, it “might consider putting out more of its analysis so that a broader swath of people can have an appreciation for what they [intelligence agencies] do,” Mr. Allen said.

While there has been significant declassification of records concerning NSA surveillance programs, a comparable reassessment of intelligence classification policy in other topical areas remains to be accomplished.

As for public disclosure of other intelligence analysis, that currently seems remote. The ODNI Open Source Center stubbornly refuses to release even unclassified, uncopyrighted products that it generates (though some do leak from time to time).

In fact, current trends point in the opposite direction, towards reduced disclosure.  Later this month the Open Source Center, which is managed by CIA, will terminate longstanding public access to translations of foreign news reports which have long been available (to paid subscribers) through the NTIS World News Connection.

Last week, the Obama Administration argued in court that the CIA should not be obliged to publicly release a 30 year old draft history of the 1961 Bay of Pigs episode.

DoD Reports to Congress to be Posted Online

In a slight but welcome incremental reform, reports to Congress from the Department of Defense are to be posted online, according to a provision in the pending FY 2014 defense authorization act.

Up to now, such reports were to be made available to the public “upon request” (10 USC 122a). But under section 181 of the FY 2014 defense authorization bill, as agreed to by House and Senate conferees, the reports would have to be posted on a “publicly accessible Internet website” whether they were requested or not (h/t: FCNL).

The online publication requirement would not apply to DoD reports that contained classified or proprietary information, or that are otherwise exempt from disclosure under FOIA.

In a January 21, 2009 memorandum to agency heads, the newly inaugurated President Obama directed that “agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.” But agencies implemented this directive unevenly and incompletely.