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Countering CIA’s Conflict of Interest in Declassification

Last week the Senate Intelligence Committee voted to submit the 480-page executive summary, findings and conclusions of its five-year investigation into the post-9/11 CIA Detention and Interrogation Program for declassification review. But in an obvious conflict of interest, the review is expected to be performed by the CIA itself.

“The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen,” said Sen. Dianne Feinstein, the chair the Senate Intelligence Committee, in an April 3 statement. “This is not what Americans do.”

The standard process for declassification therefore puts the CIA in the awkward and untenable position of deciding whether to enable (or to prevent) the release of information that portrays the Agency itself, or some of its personnel, as having engaged in behavior that was brutal, lawless, and unaccountable.

Instead, it is the White House, not the CIA, that should lead the declassification process, said Sen. Feinstein, as reported today by McClatchy Newspapers.

“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” Sen. Feinstein wrote. (Feinstein: CIA should not lead declassification review of report about interrogation tactics by Ali Watkins, McClatchy, April 8).

However, it may not be possible to exclude CIA from the declassification process altogether, since it was CIA that generated and classified most or all of the information at issue. While the President certainly has the authority to declassify the report, the White House would be unlikely to possess the detailed knowledge of the underlying records that would be needed to do so independently.

But there are ways to minimize and counteract CIA’s conflict of interest in declassification.

First of all, the Senate Intelligence Committee will be in a position to make its own judgment as to the validity of any CIA redactions of the report. Unlike the typical FOIA requester who pursues a document he has never seen, the Senate Committee knows exactly what is in the report, which it produced. If CIA moves to withhold information in ways that are frivolous, questionable or unfounded in genuine national security concerns, the Committee will recognize that immediately and will be able to elevate those specific disagreements with the CIA to the White House for resolution.

Another possible option would be for the Senate Committee to engage the services of the Public Interest Declassification Board (PIDB).

That Board’s statutory purpose is, among other things, “To review and make recommendations to the President in a timely manner with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records.”

While the PIDB, which is made up of non-governmental personnel, cannot declassify anything on its own authority, it could serve to backstop the regular declassification process with an independent perspective, and could also provide political cover for the President to overrule an unwarranted refusal to declassify.

In 2006, members of the Senate Intelligence Committee asked the Public Interest Declassification Board to review an Administration decision to classify portions of two Committee reports on prewar intelligence on Iraq. At the time, the Board said it doubted that it could carry out the review without White House authorization.

So Senators Ron Wyden and Russ Feingold introduced legislative language to clarify that the Board is authorized to review declassification proposals — or evaluate agency refusals to declassify — at the initiative of a congressional committee of jurisdiction. Their measure was enacted into law in the FY 2010 Intelligence Authorization Act.

While this function has never yet been performed by the Board, it remains available to Congress at its discretion.

“The classification system exists to protect national security, but its outdated design and implementation often hinders that mission,” wrote PIDB chair Amb. Nancy E. Soderberg in a November 2012 letter to President Obama transmitting a Board report.

“The system is compromised by over-classification and, not coincidentally, by increasing instances of unauthorized disclosures. This undermines the credibility of the classification system, blurs the focus on what truly requires protection, and fails to serve the public interest. Notwithstanding the best efforts of information security professionals, the current system is outmoded and unsustainable; transformation is not simply advisable but imperative,” she wrote.

Intelligence Whistleblower Law Has Been Used Infrequently

The Intelligence Community Whistleblower Protection Act (ICWPA) has rarely been relied upon by intelligence agency whistleblowers, according to a newly released 2009 report from the Office of the Director of National Intelligence Inspector General.

During the ten year period after the Act came into effect in January 1999, intelligence agency Offices of Inspector General (OIGs) said that only ten whistleblower complaints had been filed.

“According to the questionnaire responses we received, since 1 January 1999, 4 IC OIGs received a total of 10 ICWPA complaints,” the October 2009 report said.

“The CIA and DoD OIGs received four complaints, and the OIGs for DOJ and ODNI each received one complaint.”

“Of the 10 complaints, 3 were deemed by the CIA and DOD OIGs to be ‘urgent concerns,’ as defined by the ICWPA, and all 3 were found to be credible. The CIA and DOD OIGs notified Congress of the three complaints, as required by the statute.”

“Of the remaining six complaints, all… were deemed ‘not credible’ by the respective OIGs.”

“Of the 10 complaints received by the IC OIGs during the 10-year reporting period, 3 of them — 2 from CIA and 1 from DoJ — included allegations of reprisal.”

“However, the CIA OIG found no evidence of reprisal when it investigated these allegations. The DoJ OIG referred the complaint to the DoJ Office of Professional Responsibility, which investigated the matter and found no evidence of reprisal.”

“The OIGs also reported that none of the complaints submitted to the IC OIGs was deemed fraudulent or made in ‘bad faith’,” the report said. But the contents of the complaints and any consequences resulting from them were not described in the report.

See the Report to Congress on the use of the Intelligence Community Whistleblower Protection Act submitted by ODNI Inspector General Roslyn A. Mazer, October 19, 2009.

The creation of an Intelligence Community-wide Inspector General in 2010 included establishment of a new IC IG Hotline, which “provides a confidential means for IC employees, contractors, and the public to report fraud, waste, and abuse.”

During a recent six-month period, the IC IG internal Hotline received 70 contacts from IC personnel as well as 77 contacts from the general public, according to a March 2013 semi-annual report. The results of those contacts, i.e. whether they prompted an investigation and corrective action, were not reported.

By comparison, the Department of Defense Hotline received more than 15,000 contacts during a six-month period ending September 2013. The DoD Inspector General opened 1,341 cases as a result.

DoD has a budget and a workforce that are roughly an order of magnitude larger than those of the Intelligence Community, so the two cannot be directly compared.

But it appears that whistleblower reporting of suspected waste, fraud and abuse has been institutionalized and routinized to a far greater extent in the Defense Department than within the Intelligence Community, where it remains uncommon.

Did CIA Violate the Constitution’s Speech or Debate Clause?

The Central Intelligence Agency may have violated the Speech or Debate clause of the U.S. Constitution by performing an unauthorized search of Senate Intelligence Committee computers, according to an analysis by the Congressional Research Service.

The Speech or Debate clause (in Article I, Section 6, Clause 1 of the Constitution) generally immunizes members of Congress from liability for actions performed in the course of their legislative duties.

But it also provides privileged protection for congressional documents against compulsory or involuntary disclosure. CIA may have unconstitutionally violated that privilege.

As detailed by Sen. Dianne Feinstein in a March 11 floor statement, the CIA carried out a search of Committee computers without notice or consent in an attempt to determine whether or how the Committee had obtained unauthorized access to a particular record concerning the CIA’s post-9/11 prisoner interrogation program.

“The search involved not only a search of documents provided by the committee to the CIA but also a search of the stand-alone and walled-off committee network drive containing the committee’s own internal work product and communications,” Sen. Feinstein said. The search took place in a CIA-leased facility where Committee staff were working.

“According to [CIA Director] Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the internal Panetta review [a CIA document which CIA had not intended to release to the Committee]. The CIA did not ask the committee or its staff if the committee had access to the internal Panetta review or how we obtained it.”

“Instead, the CIA just went and searched the committee’s computers,” Sen. Feinstein said.

Through the Speech or Debate clause, the Constitution “has imposed [limitations] on executive branch attempts to interfere with legislative activities, including Congress’s authority to conduct oversight and investigations,” the new CRS analysis explained.

The Speech or Debate clause has been interpreted variously by two appellate courts, with different implications for the current circumstance, CRS said. The CIA search of Senate Intelligence Committee computers “could arguably be viewed as violating the non-disclosure privilege recognized by the court in Rayburn,” CRS said, referring to a 2007 DC Circuit case involving an FBI search of the House office of Rep. William Jefferson.

However, under a different reading of the Speech or Debate clause from a Ninth Circuit opinion in a case called US v. Renzi, the potential CIA violation “is less clear,” the CRS memorandum cautioned.

See Who’s Overseeing Whom? The CIA, SSCI and the Speech or Debate Clause, CRS Legal Sidebar, March 13, 2014.

In any event, the possible violation by the CIA of the non-disclosure privilege provided by the Speech or Debate clause is not legally actionable at this time, CRS said.  Rather, it “would only come into play in the event of a subsequent legal proceeding.”

On Friday, CIA Director John Brennan sent an email message to CIA employees containing what was understood to be a conciliatory signal towards Congress. “It is appropriate for the Intelligence Committees in the Senate and the House to carry out their oversight responsibilities thoroughly and comprehensively, and CIA needs to do all it can to assist the Committees in that regard,” Director Brennan wrote.

“Regarding the SSCI’s RDI [rendition, detention and interrogation] report, I want to assure you that the entire CIA leadership team is committed to addressing any outstanding questions or requests from SSCI members so that the Committee can complete its work and finalize the report as soon as possible.”

“I expect the Committee will submit at least some portion of the report to the CIA for classification review, and, if that happens, CIA will carry out the review expeditiously,” he wrote in the March 21 email message (published by Politico).

Inspector General Blasts NRO Secrecy Practices

The National Reconnaissance Office (NRO), the agency that builds and operates U.S. intelligence satellites, frequently makes mistakes when it classifies national security information, according to an assessment performed last year by the NRO Inspector General.

“From the classified documents we reviewed at NRO headquarters, 114 of 134 documents contained classification errors,” the IG report said.

Agency classification officials “lack sufficient knowledge of classification principles and procedures necessary to perform their duties,” the NRO Inspector General found. “One OCA [original classification authority] had almost no knowledge of his responsibilities.”

“Because of the lack of full compliance in multiple areas, the NRO is susceptible to the risk of persistent misclassification,” the IG said.

The IG report was performed in response to the “Reducing Over-Classification Act of 2010,” which required the Inspectors General of all agencies that classify information to evaluate their classification programs. A copy of the report was obtained under the Freedom of Information Act by the GovernmentAttic.org web site.

Most of the classification errors discovered by the Inspector General are administrative rather than substantive. Like other IG evaluations conducted under the Reducing Over-Classification Act, the NRO Inspector General review does not allow for the possibility that an agency could be in full compliance with classification rules and nevertheless be overclassifying information.

Instead, the IGs have focused on errors in marking documents, failures to specify proper authorities or to cite responsible officials, and similar defects in conformity with established rules.

Still, these are not necessarily trivial failures. Between 2005 and 2012, for example, NRO improperly exempted records from automatic declassification at 25 years when it had no authority to do so, the IG said.

The Inspector General reviewed NRO classification guides (which dictate the classification levels of particular items of information) “and we found that all but one of the 62 guides had classification errors.”

Puzzlingly, the Inspector General also reported that NRO “has not conducted timely reviews [of] its security classification guides” and that “three of the 62 SCGs had not been reviewed within five years.”

This finding appears to be inconsistent with a 2012 NRO report which affirmed that all of its security classification guides — of which there were 67, not 62 — had been reviewed in response to the Fundamental Classification Guidance Review. An explanation of the inconsistency was not immediately available.

NRO officials “non-concurred” with the findings and conclusions of the Inspector General report.

The report contains “numerous sensationalized, exaggerated and misleading statements,” wrote A. Jamieson Burnett, the director of the NRO Office of Security and Counterintelligence.

Other previously disclosed IG reports issued in response to the Reducing Over-Classification Act addressed classification programs in the Department of Defense, Department of Justice, Department of Homeland Security, and the Environmental Protection Administration.

Perhaps the biggest incentive for reducing overclassification is the negative impact that unnecessary secrecy can have on government operations.

“A major impediment to operating with international partners is the U.S. tendency to classify information, complicating the crucial flow of important data to our allies as well as within and among our own Services,” according to a new article in Joint Force Quarterly, which is published by National Defense University for the Chairman of the Joint Chiefs of Staff.

“The U.S. military needs to [...] try harder to communicate in the unclassified domain,” wrote Jeffrey M. Shaw in his article “Putting ‘A Cooperative Strategy for 21st Century Sea Power’ to Work,” Joint Force Quarterly, January 2014.

GAO Says Data on Intelligence Contractors Not Reliable

Official data on the number of contractors used by civilian intelligence agencies are unreliable, according to a review by the Government Accountability Office (GAO). Nor can the costs incurred by contractors be accurately assessed.

The inadequacy of the data undermines workforce management as well as contractor oversight, GAO said.

“GAO identified a number of limitations in the inventory [of intelligence contractors] that collectively limit the comparability, accuracy, and consistency of the information reported by the civilian IC [intelligence community] elements as a whole,” the GAO report said.  These limitations included changing definitions of what a core contractor is, and variability in the collection and reporting of data on their use.

The resulting inventory “does not provide insight into the functions performed by contractors, in particular those that could inappropriately influence the government’s control over its decisions.”

See Civilian Intelligence Community: Additional Actions Needed to Improve Reporting on and Planning for the Use of Contract Personnel, Government Accountability Office Report GAO-14-204, January 2014.

The intelligence community (IC) workforce is composed of three basic categories of employees:  civilian government personnel, military personnel, and core contractors.

“Core contractors” — as opposed to other individual contractors, manufacturers or service providers — may perform mission-related functions including intelligence collection, processing and analysis, as well as information technology services. (Edward Snowden was considered a core contractor.)

“While the use of contractors can provide benefits in support agency missions, such as flexibility to meet immediate needs and obtain unique expertise, their use can also introduce risks for the government to consider and manage,” the GAO report said.

But as a result of faulty data, US intelligence agencies “are not well-positioned to assess the potential effects of relying on contractor personnel.” The GAO report included recommendations for improving the quality and utility of data on intelligence contractor use.

Stephanie O’Sullivan, the Principal Deputy Director of National Intelligence, acknowledged that there were defects in IC reporting on contractors, but she said that things were getting better.

“There have been challenges associated with conducting the [intelligence contractor] inventory, which was one of the first of its kind in the Federal government,” she told the Senate Homeland Security and Governmental Affairs Committee. “However, the IC continues to improve the capture and understanding of data on its core contract personnel.”

Ms. O’Sullivan said that reductions in the contractor population were underway, but that contractors remained indispensable.

“We have… turned the corner and for the past several years have been reducing the number of core contract personnel across the IC, both in numbers and costs. Despite these reductions, core contract personnel have now become an integral part of the IC workforce. We could not perform our mission without them,” she said.

She noted that in some cases, intelligence contractors “have given their lives for this country alongside their government colleagues.”

“Two IC contract personnel were among the nine people killed during a terrorist attack on a CIA facility located near the eastern Afghan city of Khost in December 2009, and two IC contract personnel lost their lives during the attack on US diplomatic facilities in Benghazi, Libya, in September 2012.”

In any case, “because of the contraction in [intelligence] budgets, contractors are motivated to reduce costs…. In fact, some contractor employees are now being paid less than they were a few years back.”

The new Governmental Accountability Office report appears to represent a successful step in the development of GAO’s role in intelligence oversight.

Ms. O’Sullivan said that several of the specific steps recommended by GAO had been or would be adopted by the Intelligence Community. “These changes will bring greater transparency to the IC’s data on core contract personnel,” she said.

But it seems noteworthy that the new GAO report was requested by the Senate Committee on Homeland Security and Governmental Affairs– not the Senate Select Committee on Intelligence.

Just as the House and Senate Judiciary Committees have produced more incisive public oversight of intelligence surveillance policy than the Intelligence Committees have done over the past year, so in this case the Senate Homeland Security Committee has had more to offer the public in terms of oversight of intelligence contractors.  It is not clear why that should be so.

A GAO official downplayed this question. He said the Homeland Security Committee had a long-term interest in contractor policy throughout the government, including a series of reports requested from GAO. He added that the latest report “was distributed to all committees of jurisdiction, including the intelligence committees.” (More: Bloomberg, WaPo).

Privacy Board Urges New Criteria for Secrecy

The public controversy that erupted over NSA bulk collection of Americans’ telephone records was a clear sign, if one were needed, that the boundaries of government secrecy had been drawn incorrectly, and that the public had been wrongly denied an opportunity to grant or withhold its consent in such cases.

To remedy this systemic problem, the Privacy and Civil Liberties Oversight Board said in a new report yesterday that the government needs to develop new criteria for secrecy and openness.

“The Board urges the Administration to commence the process of articulating principles and criteria for deciding what must be kept secret and what can be released as to existing and future programs that affect the American public” (Recommendation 11).

But translating this imperative into practice remains a challenge.

“Generalities about the value of transparency do not go far in answering the hard questions of what can be disclosed and what must remain secret,” the Board properly observed. “Instead, progress may best be achieved by considering specific problems,” such as intelligence surveillance policy.

With that in mind, the Board sketched out illustrative examples and options that could guide future declassification and disclosure decisions. Experience has already shown, the report said, that “it is possible to describe [intelligence] practices and policies publicly, even those that have not been otherwise leaked, without damage to national security or operational effectiveness.”

More specifically, the Board report said the Administration should start to address transparency with a “public articulation of the legal authorities under which it conducts surveillance affecting Americans,” the very point at which the current controversy began (Recommendation 12).

However, a minority of the Board did not endorse this particular recommendation. “I do not believe that an intelligence program or legal justification for it must necessarily be known to the public to be legitimate or lawful,” said dissenting Board member Rachel Brand.

The lack of Board unanimity on this and other points “really weakens its recommendations and undermines the role that we envisioned it would play,” said Sen. Susan Collins in the Wall Street Journal.

But from another point of view, the divided views of Board members are a strength, not a weakness. The fact that thoughtful people reviewing the same factual record can arrive at divergent conclusions is instructive, and the split may accurately reflect larger divisions among members of the public. Advocates and editorial writers seem to be strangers to doubt, but others may not be. Confronting the opposing views of Board members, readers are invited and compelled to think for themselves.

Overall, the Privacy and Civil Liberties Oversight Board demonstrated its utility as a public oversight body, helping to fill the void left by congressional and judicial oversight that sometimes seems cursory by comparison.

The Board (majority) presented an incisive critique of current surveillance practices that is lucid and nuanced, clarifying the legal and policy issues involved without hyperbole or vitriol.

“The Board concludes that Section 215 [of the USA Patriot Act] does not provide an adequate legal basis to support this [bulk collection] program. Because the program is not statutorily authorized, it must be ended,” the report said.

Even in the absence of overt abuse, it was argued, the mere collection of American telephone records in bulk is an infringement on privacy and other civil liberties. “Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”

While there are procedures in place to limit the official use of such records, “in our view they cannot fully ameliorate the implications for privacy, speech, and association that follow from the government’s ongoing collection of virtually all telephone records of every American. Any governmental program that entails such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone records program conducted under Section 215 meets that standard.”

If the bulk collection program were demonstrably effective in saving lives, the report implied, then certain infringements on privacy might well be warranted. But that is not the case, the Board majority concluded.

“Given the limited value this [bulk collection] program has demonstrated to date… we find little reason to expect that it is likely to provide significant value, much less essential value, in safeguarding the nation in the future,” the Board report said.

Of course, that is a judgment, not an empirical fact. Others can and do disagree, including two of the members of the Board itself.

“Whether the [bulk collection] program should continue boils down to whether its potential intrusion on privacy interests is outweighed by its importance to protecting national security,” wrote Rachel Brand, precisely. This too is a judgment, and it explains why disagreement over the program persists.

But on the need to rethink current secrecy practices, at least, there is consensus, among members of the Board and beyond.

John C. Inglis, in his final days as deputy director of the National Security Agency, told National Public Radio that he now realized that existing public disclosure practices were “insufficient.”

Did he wish NSA had made an effort years ago to disclose the bulk collection program in a way that the public could debate it?  “In hindsight, in hindsight,” he told NPR’s Steve Inskeep.

The task now is to apply the lessons of hindsight to present-day national security secrecy policies, and not only with regard to NSA surveillance activities.

“What we’re going to have to do as a nation, and particularly as an agency, is to rebalance, right, the balance that we have struck between security, secrecy and transparency,” Mr. Inglis said, in an NPR interview published January 10.

 

Senate Benghazi Report Urges Better Open Source Analysis

The U.S. intelligence community needs to expand the collection and analysis of open source information, according to a Senate Intelligence Committee report on the 2012 attack on U.S. facilities in Benghazi, Libya.

But that recommendation ironically comes just as the CIA has terminated public and scholarly access to its open source collection of foreign news reports.

“The IC must place a greater emphasis on collecting intelligence and open-source information, including extremist-affiliated social media, to improve its ability to provide tactical warnings, especially in North Africa, the Middle East, and other areas where the U.S. has facilities under high threat,” the new report said (p. 25).

“The IC should expand its capabilities to conduct analysis of open source information including extremist-affiliated social media particularly in areas where it is hard to develop human intelligence or there has been recent political upheaval,” the report said.

In the past, public consumers of CIA open source reporting were able to provide a measure of analytic support as well as area expertise to policy makers.

Such public consumers contributed to “expanded participation in informed analysis of issues significant to U.S. policy interests,” said the CIA’s J. Niles Riddel in 1992.  Back then, intelligence agencies “value[d] the work of private sector scholars and analysts who avail themselves of our material and contribute significantly to the national debate on contemporary issues such as economic competitiveness.”

But today’s CIA decided to cut off public and scholarly access to such material through the World News Connection, to the detriment of the “informed analysis” that public consumers might have contributed to the national debate.

The entire archive of the former World News Connection from 1995-2013 has been acquired by East View Information Services. For a subscription fee, “Researchers will still have access to over 1 million foreign newspaper articles, broadcast transcripts and datelines from Beijing, Beirut, Bogota, Cairo, Jakarta, Iraq, Mogadishu, Qatar, Ramallah, Sarajevo, Vienna, and hundreds of other spots around the world.”

GAO Oversight of NSA: A Neglected Option

Years ago, the Government Accountability Office, the investigative arm of Congress, conducted routine audits and investigations of the National Security Agency, such that the two agencies were in “nearly continuous contact” with one another. In the post-Snowden era, GAO could perform that oversight function once again.

“NSA advises that the GAO maintains a team permanently in residence at NSA, resulting in nearly continuous contact between the two organizations,” according to a 1994 CIA memorandum for the Director of Central Intelligence.

“NSA’s practice has been to cooperate with GAO audits and investigations to the extent possible in accordance with DOD regulations,” the CIA memorandum said. “This includes providing the GAO with documents requested, including CCP CBJB’s [congressional budget justification books for the consolidated cryptologic program] as long as (1) the request was in support of a valid audit or investigation and (2) the recipients of the classified material had the requisite accesses and could meet security requirements for classified data control and storage. Documents provided in the past have included CCP CBJBs.”

At a 2008 Senate hearing, Sen. Daniel Akaka asked the GAO about its relationship with NSA. “I understand that GAO even had an office at the NSA,” Sen. Akaka noted.

“We still actually do have space at the NSA,” replied David M. Walker, then-Comptroller General, the head of the GAO. “We just don’t use it. And the reason we don’t use it is we are not getting any requests [from Congress]. So I do not want to have people sitting out there twiddling their thumbs.”

Today, the justification for restoring the type of on-site, investigative oversight of NSA that GAO could provide may be newly apparent– though no one seems to have noticed that GAO could actually provide it.

The recent report of the the Review Group on Intelligence and Communications Technologies includes an appendix citing the various components of oversight of U.S. intelligence, but it does not mention GAO at all.

Whether NSA bulk collection programs are ultimately extended, modified, or terminated, GAO could play a useful role as the eyes and ears of Congress at NSA. While there are several other oversight mechanisms in place, GAO would bring some unique features to the mix.

NSA has a fairly robust Office of the Director of Compliance to perform internal oversight, but it answers to the NSA Director, and reflects his priorities, not necessarily those of Congress.  Inspector general oversight focuses on compliance with the letter of the law, and it is probably less well-suited than GAO to consider systemic problems, performance issues and policy alternatives.  (Last November, the IC Inspector General deflected a request from Senator Leahy to conduct oversight of NSA surveillance programs, citing resource limitations and other issues.)

If it were directed to conduct audits and investigations on behalf of Congress, there is reason to believe the GAO could add a valuable dimension to NSA oversight. Just as a proposed third-party advocate might “thicken” the deliberations of the Foreign Intelligence Surveillance Court concerning surveillance law, so too might GAO investigators enrich the oversight of NSA programs as they are executed in practice.

In Intelligence Community Directive 114, issued in 2011 following years of stagnation in GAO oversight of intelligence, DNI James Clapper instructed U.S. intelligence agencies to be responsive to GAO, at least within certain boundaries.

“It is IC policy to cooperate with the Comptroller General, through the GAO, to the fullest extent possible, and to provide timely responses to requests for information,” the DNI wrote.

The Clapper “Lie,” and the Senate Intelligence Committee

Director of National Intelligence James R. Clapper has been widely criticized for making a false statement at a March 2013 hearing of the Senate Intelligence Committee.  What has gone unremarked, however, is the fact that the Committee permitted that statement to stand uncorrected.

Sen. Ron Wyden asked DNI James Clapper at a March 12, 2013 hearing “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

DNI Clapper replied “No, sir.” He added “Not wittingly. There are cases where they could, inadvertently perhaps, collect — but not wittingly.”

Based on this exchange, and in light of the revelations to the contrary made by Edward Snowden, some have concluded that DNI Clapper “lied to Congress,” as the New York Times editorial board put it last week. Some go further to suggest that the DNI should be prosecuted and imprisoned, as Sen. Rand Paul did yesterday.

It is of course wrong for officials to make false statements, as DNI Clapper did when he denied that NSA collects “any type of data at all” on ordinary Americans. But did the DNI actually “lie to Congress”?

In ordinary usage, lying usually connotes an intent to deceive.  In this case, DNI Clapper could not have intended to deceive the Senate Intelligence Committee because the true answer to Senator Wyden’s question was already known to Senator Wyden and to all the other members of the Committee (as noted the other day by ODNI General Counsel Robert S. Litt). Committee members could not have been misled by the DNI’s response, and it makes no sense to say that he intended to mislead them.

What remains true is that others — especially attentive members of the public — were deceived by the DNI’s statement.  If DNI Clapper “lied,” it was to them, not to the Senate Intelligence Committee, that he did so. But the Committee permitted that deception to occur, and to persist, and so it must take its share of responsibility for that.  Yet unlike the DNI (who apologized, several months after the fact, saying he misunderstood the question), the Committee has not acknowledged any failure on its part.

When Senator Wyden posed his question in open session, he was evidently attempting to corner the DNI and to compel him to involuntarily reveal classified information about the NSA bulk collection program. At the time, it seemed to be a clever rhetorical maneuver. Even if the DNI refused to respond or requested to answer the question in closed session, that would have indicated that something pertinent was being concealed.

However, by answering falsely, the DNI turned the tables on Senator Wyden and the Senate Intelligence Committee.  Whether by design or not (almost certainly not), the DNI’s response challenged the Committee to make its own choice either to disclose classified information about the NSA program — in order to rebut and correct the DNI’s answer — or else to acquiesce in the dissemination of false information to the public.

(There was another conceivable option. Without revealing specific classified information, the Committee could have issued a statement that the record of the March 12 hearing included certain erroneous and misleading statements, and that it should not be relied upon.)

As it turned out, the Senate Intelligence Committee made exactly the same choice that DNI Clapper is accused of making. The Committee evidently decided that national security classification trumped any obligation it had to produce an honest and accurate public record. As a result, the Committee itself became complicit in an act of public deception.

This is deeply unfortunate. It means that unclassified Committee statements and publications cannot be granted an unqualified presumption of accuracy or good faith. With the Clapper gambit, the Senate Intelligence Committee moved beyond the familiar practice of secrecy and into the propagation of false and misleading information.

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.