The government seizure of Associated Press telephone records in the course of a leak investigation undermined freedom of the press in the United States, congressional critics said yesterday.

“It seems to me the damage done to a free press is substantial,” said Rep. Zoe Lofgren at a hearing of the House Judiciary Committee.

Pursuant to subpoena, the government captured call records for 20 telephone lines of Associated Press reporters and editors over a two month period last year.  The records are logs of calls made and received, but do not include their contents.  It was a “massive and unprecedented intrusion” into newsgathering activities, wrote the AP’s president Gary Pruitt in a May 13 letter.

The Justice Department denied that the action deviated from established policy.

“We understand your position that these subpoenas should have been more narrowly drawn, but in fact, consistent with Department policy, the subpoenas were limited in both time and scope,” wrote Deputy Attorney General James M. Cole in a May 14 reply.

The  move arose from an AP story about a disrupted bomb plot originating in Yemen that led to the revelation of a classified counterterrorism operation and the existence of a valued agent. “This is among the top two or three serious leaks that I’ve ever seen” said Attorney General Eric Holder. He did not elaborate.

Meanwhile, the upshot is that any presumption of confidentiality in the source-reporter relationship has been compromised across the board, especially but not only in national security reporting.

“Reporters who might have previously believed that a confidential source would speak to them would no longer have that level of confidence, because those confidential sources are now going to be chilled in their relationship with the press,” Rep. Lofgren said yesterday.

Last year, congressional leaders harshly criticized the Obama Administration for supposedly failing to aggressively combat leaks of classified information, including in the present case.

“The Administration’s disregard for the Constitution and rule of law not only undermines our democracy, it threatens our national security,” said Rep. Lamar Smith, at a hearing of the House Judiciary Committee last year. “The Justice Department has not taken the initiative to prosecute leaks of national security secrets. Recent leaks about a foiled bomb plot out of Yemen and a cyberattack against Iran are, in the words of Senate Intelligence Chairwoman Dianne Feinstein, quote, ‘very detrimental, very concerning, and hurt our country,’ end quote.”

The irony was not lost on Rep. Jerrold Nadler.

“I think we should put this in context, and remember that less than a year ago this committee’s Republican leadership demanded aggressive investigation of press leaks, accusing the administration itself of orchestrating those leaks,” he noted. “Then, members of this committee wanted the reporters subpoenaed, put in front of grand juries and potentially jailed for contempt. Now, of course, it is convenient to attack the attorney general for being too aggressive or the Justice Department for being too aggressive.”

“But this inconsistency on the part of my Republican colleagues should not distract us from legitimate questions worthy of congressional oversight, including whether the Espionage Act has been inappropriately used looking at leakers, whether there is a need for a greater press shield,… and Congress’ broad grants of surveillance authority and immunity,” Rep. Nadler said.

Rep. Lofgren said that the damage done to freedom of the press by the clandestine seizure of AP phone records “will continue until corrective action is taken.”

The Government Printing Office is blocking public access to some previously released records of the National Aeronautics and Space Administration, while the records are reviewed to see if they contain export-controlled information.  The move follows the controversial disabling and partial restoration of the NASA Technical Reports Server (NTRS) (NASA Technical Report Database Partly Back Online, Secrecy News, May 9.)

“GPO has been asked to suspend any activity related to making these documents available if they have not been reviewed,” GPO said in a notice today.

“During this time, PURLs that GPO has created for the electronic versions of NASA Technical Reports found in cataloging records accessed through the Catalog of U.S. Government Publications (CGP) may not link to the documents that the catalog record describes.” (h/t Full Text Reports, infoDOCKET)

The website of the NASA Technical Reports Server (NTRS), a massive collection of aerospace-related records, was disabled in March due to congressional concerns that it had inadvertently disclosed export-controlled information.  (“NASA Technical Reports Database Goes Dark,” Secrecy News, March 21; “Database Is Shut Down by NASA for a Review,” New York Times, March 22.)

The site is now active again, though hundreds of thousands of previously released documents have been withheld pending review.

Rather than conducting a focused search for actual export-controlled information and then removing it, as would have seemed appropriate, NASA blocked access to the entire collection. The agency acted under pressure from Rep. Frank Wolf (R-VA) of the House Appropriations Committee while it assessed the situation.

Now many of the NTRS records have been restored, including open literature publications, magazine articles, and other documents that were already in the public domain in any case.  But hundreds of thousands of others still await a formal export control review to certify them for public release.  The multi-phase process was described in a NASA email exchange that was released under the Freedom of Information Act.

An air of futility surrounds the whole exercise. Much of the NASA collection has been mirrored on foreign websites, wrote Keith Cowing of NASA Watch, while other withheld reports can be purchased in hardcopy on eBay.

An executive order issued by President Obama today directs that “the default state of new and modernized Government information resources shall be open and machine readable.”

“As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation,” states Executive Order 13642 on Making Open and Machine Readable the New Default for Government Information.

The new order was welcomed by the Sunlight Foundation, a proponent of open access to government data, particularly because it establishes a requirement to produce an inventory of “datasets that can be made publicly available but have not yet been released.” That will facilitate enforcement and advancement of the open data agenda, Sunlight said.

While one wants to believe in the efficacy of the order and to affirm the good faith intentions behind it, it is necessary to recognize how remote it is from current practice, particularly in the contentious realm of national security information.

The CIA, for example, has stubbornly refused to release the contents of its CREST database of declassified documents, even though the documents contained there are entirely declassified.  The CREST database is not open, it’s not machine-readable, and you can’t have a copy.

Meanwhile, the Obama White House itself has refused to publish even its unclassified Presidential Policy Directives (with a few exceptions), forcing requesters to litigate for access, or to surrender.

The process of declassifying national security records, which is hardly expeditious under the best of circumstances, will become slower as a result of the mandatory budget cuts known as sequestration.

Due to sequestration, “NARA has reduced funding dedicated to the declassification of Presidential records,” the National Archives and Records Administration (NARA) said in a report last week.

“Instead, NARA staff will prepare documents for declassification, in addition to their existing duties. This will slow declassification processes and delay other work, including FOIA responses and special access requests,” said the new report, which also identified several other adverse effects of the across-the-board cuts.

Meanwhile, because of the basic asymmetry between classification and declassification, there is no particular reason to expect a corresponding reduction in the rate at which new records are classified.

Classification is an integral part of the production of new national security information that cannot be deferred, while declassification is a distinct process that can easily be put on hold.  Likewise, there is no dedicated budget for “classification” to cut in the way that NARA has cut declassification spending.  And while Congress has erected barriers to declassification (such as the Kyl-Lott Amendment to prohibit automatic declassification of records without review), it has simultaneously allowed declassification requirements to go overlooked and unenforced.

Some declassification is actually mandated by law.  A 1991 statute on the Foreign Relations of the United States series requires the Department of State to publish a “thorough, accurate, and reliable documentary record of major United States foreign policy decisions” no later than 30 years after the fact, necessitating the timely declassification of the underlying records.  But law or no law, the government has not complied with this publication schedule.

The White House should undertake a focused effort to reduce national security secrecy, some 30 public interest organizations urged President Obama in a letter today.

The groups called upon the President to adopt a recommendation of the Public Interest Declassification Board to set up a White House-led Security Classification Reform Steering Committee.

“A presidentially appointed Steering Committee would provide a mechanism for identifying and coordinating needed changes and for overcoming internal agency obstacles to change,” the group letter said. “It would also reflect the urgency of reining in a classification system that is largely unchecked.”

To be effective, though, the proposed Steering Committee would need to be something more than just a deliberative, coordinating body, such as the ill-fated Security Policy Board of the 1990s.

Specifically, it would require “a clear mandate to reduce the size and scope of the national security classification system,” the group letter said, as well as active White House participation to ensure agency cooperation and compliance.

In principle, reductions in national security secrecy can actually benefit government agencies by diminishing the significant financial and operational costs they incur for classification. But in practice, such reductions have been hard to accomplish and agencies have resisted any externally imposed limits on their presumed autonomy to classify as they see fit.

Of all the potential ways to reduce secrecy that could be envisioned, the proposal for a White House-led Steering Committee is currently the most salient.  That’s because it was recommended by the Public Interest Declassification Board, who developed it in response to a request from President Obama himself.

“I also look forward to reviewing recommendations from the study that the National Security Advisor will undertake in cooperation with the Public Interest Declassification Board to design a more fundamental transformation of the security classification system,” the President wrote in a December 29, 2009 memorandum.

Now the recommendations that the President looked forward to are in hand, and it will be up to the White House to act.

An enormous volume of photographic imagery from the KH-9 HEXAGON intelligence satellites was quietly declassified in January and will be transferred to the National Archives later this year for subsequent public release.

The KH-9 satellites operated between 1971 and 1984. The imagery they generated should be of historical interest with respect to a wide range of late Cold War intelligence targets but is also expected to support current scientific research on climate change and related fields of inquiry.

The film-based KH-9 satellites were officially declared “obsolete” by the Director of National Intelligence in 2011.  The KH-9 imagery was nominally approved for declassification in February 2012, and then it was finally declassified in fact this year.

ODNI spokesman Michael Birmingham said that approximately 97 percent of the satellite imagery that was collected from the 19 successful KH-9 missions was formally declassified by DNI James R. Clapper on January 11, 2013.

“The small amount of imagery exempted from this declassification decision will be removed prior to its accession to the National Archives (NARA) and will remain classified pursuant to statute and national security interests, and reviewed periodically to determine if additional declassification is warranted,” Mr. Birmingham said last week.

The imagery is being transferred to NARA in stages, with final delivery scheduled for September 2013, he said.

The transfer is being implemented pursuant to a November 2012 Memorandum of Agreement between the National Geospatial-Intelligence Agency (NGA) and the National Archives, under which the Archives is “responsible for providing public access to the declassified imagery.”

Reishia R. Kelsey of NGA public affairs confirmed that the imagery “will be made available to the public following its accession to NARA” later this year.

The National Archives was not prepared last week to set a precise date for public release.  But an Archives official said that “NARA intends to make these records available to the public at our research room in College Park, MD as soon as possible following transfer.”

If successfully executed, the release of the KH-9 imagery will constitute a breakthrough in the declassification and disclosure of national security information. It will be one of several discrete but momentous shifts in secrecy policy during the Obama Administration that have often gone unrecognized or unappreciated. Though these declassification actions took years or decades to accomplish, they have been downplayed by the White House itself, which has seemed curiously ambivalent about them.  They include the public disclosure of the size of the U.S. nuclear weapons arsenal, the routine publication of the annual intelligence budget request, the release of the Office of Legal Counsel “torture memos,” the declassification of the KH-9 satellite itself, and others.

The KH-9 imagery is being processed for public release pursuant to the 1995 Executive Order 12951 on “Release of Imagery Acquired by Space-based National Intelligence Reconnaissance Systems.”  That order had been effectively dormant since the Clinton Administration, when the last major release of intelligence satellite imagery (from the CORONA, ARGON and LANYARD missions) took place.

The declassification of the KH-9 imagery is a massive undertaking, Mr. Birmingham of ODNI said last year.

“For context, and to grasp the scope of the project, the KH-9/HEXAGON system provided coverage over hundreds of millions of square miles of territory during its 19 successful missions spanning 1971-1984,” he said.  “It is a daunting issue to address declassification of the program specifics associated with an obsolete system such as the KH-9, which involves the declassification of huge volumes of intelligence information gathered on thousands of targets worldwide during a 13 year time period.”

The Invention Secrecy Act of 1951 has been used for more than half a century to restrict disclosure of patent applications that could be “detrimental to national security.” At the end of the last fiscal year, no fewer than 5,321 secrecy orders were in effect.

These secrecy orders have been difficult to penetrate and the stories behind them have usually been left untold.  But several inventors whose work prompted imposition of a secrecy order were interviewed by G.W. Schulz of the Center for Investigative Reporting.  See his new account in Government secrecy orders on patents keep lid on inventions, April 16, 2013.

The number of people who are cleared for access to classified information continued to rise in 2012 to more than 4.9 million, according to a new annual report from the Office of the Director of National Intelligence.  This is only the third official tally of government-wide security clearance activity ever prepared, and it is the largest reported to date.

The total number of cleared personnel as of October 1, 2012 was 4,917,751.  Although the number of contractors who held a clearance declined in 2012, the number of eligible government employees grew at a faster rate, yielding a net increase of 54,199 clearances, or 1.1 percent, from the year before.

It is possible that there were more security-cleared Americans at some points during the Cold War, when there was a larger standing military with more cleared military personnel than there are today.  But until 2010, no comprehensive account of the size of the security clearance system had ever been produced.  So the new 4.9 million figure is the largest official figure ever published.

A 2009 report from the Government Accountability Office had estimated that 2.4 million people held clearances, excluding some intelligence agency employees.  But even allowing for one or two hundred thousand cleared intelligence personnel, this turned out to underestimate the case by nearly 50%.  A 1995 GAO report presented an estimate of 3.2 million persons as of 1993.

(Strictly speaking, the new ODNI report does not present data on the number of clearances but rather on the number of people who have been investigated and deemed “eligible” for a clearance, regardless of whether or not they have been granted access to classified information in fact. In addition to a security clearance, an individual is also supposed to have a “need to know” particular classified information in order to gain access to it.)

During 2012, the CIA denied 4.9% of the clearance applications that it reviewed, the report indicated, while NRO denied 5.9% and NSA denied 5.7%.  Several of the intelligence agencies reported that they had individual security clearance investigations that had remained open in excess of one year.

“The IC faces challenges in clearing individuals with unique or critical skills — such as highly desirable language abilities — who often have significant foreign associations that may take additional time to investigate and adjudicate,” the new report said.

The report notes that it was prepared in fulfillment of a requirement in the 2010 intelligence authorization act.  It does not mention the fact that the DNI asked Congress to cancel that requirement last year.

The DNI’s request to eliminate the report was initially approved by the Senate Intelligence Committee (as first noted by Marcy Wheeler of the Emptywheel blog). But then several public interest groups wrote to ask the House and Senate Intelligence Committees to preserve the annual reporting requirement, arguing that it provided unique public insight into the size and operation of the security clearance system. The Committees concurred, and the reporting requirement was retained.

In the absence of similar public attention and intervention, another intelligence community report to Congress on proliferation of weapons of mass destruction was discontinued at the DNI’s request, to the dismay of students of arms control.

A pending change to the security clearance process is intended to encourage mental health counseling, but some say it may generate new confusion, reported Josh Gerstein in Politico today.

Some $4 billion is being cut from the National Intelligence Program this year as a result of sequestration, Director of National Intelligence James Clapper told the House Intelligence Committee at a hearing today. He said that the consequences will be severe. Acquisition programs will be “wounded,” ongoing programs will have to be curtailed, and the ensuing degradation of intelligence capabilities will be “insidious” with unforeseeable effects, he said.

Meanwhile, the Office of the Director of National Intelligence disclosed yesterday that the FY 2014 budget request for the National Intelligence Program (NIP) is $48.2 billion.  However, this figure excludes the pending funding request for Overseas Contingency Operations (OCO), so it cannot be directly compared to previous budget allocations, such as the $53.9 billion that was appropriated in FY 2012, or the $52.6 billion that was requested for FY 2013. A summary of the FY 2014 budget request is here.

The Secretary of Defense also disclosed the FY 2014 budget request for the Military Intelligence Program (MIP) yesterday, which was $14.6 billion. It also did not include the funding request for Overseas Contingency Operations.  This is a slight decline from the $14.7 billion base request for the MIP last year.  (An additional $4.5 billion was known to have been requested for OCO in the past fiscal year.)

Total intelligence spending (NIP plus MIP) peaked in Fiscal Year 2010, and has been on a downward slope since then. Intelligence budget disclosures from the last several years are tabulated here.

The NIP intelligence budget request was publicly disclosed for the first time in February 2011, in response to a requirement enacted by Congress in the FY 2010 intelligence authorization act. The MIP intelligence budget request was disclosed for the first time in February 2012, even though there was no specific statutory requirement to do so.