US-Vietnam Nuclear Cooperation, and More from CRS

Noteworthy new and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

U.S.-Vietnam Nuclear Cooperation Agreement: Issues for Congress, March 24, 2014

Ukraine: Current Issues and U.S. Policy, March 24, 2014

Central Asia: Regional Developments and Implications for U.S. Interests, March 21, 2014

Major U.S. Arms Sales and Grants to Pakistan Since 2001, March 26, 2014

Turkey: Background and U.S. Relations, March 27, 2014

Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court, March 21, 2014

The Trend in Long-Term Unemployment and Characteristics of Workers Unemployed for Two Years or More, March 24, 2014

Selected Characteristics of Private and Public Sector Workers, March 21, 2014

Legislative Research for Congressional Staff: How to Find Documents and Other Resources, March 25, 2014

Marijuana: Medical and Retail–Selected Legal Issues, March 25, 2014

Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate, March 21, 2014

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.

Newly Declassified Intelligence Satellite Imagery is Hard to Access

The declassification of historical intelligence satellite imagery has been a boon to scientists, environmentalists and other researchers since it began with President Clinton’s executive order 12951. So, for example, “The declassification of imagery from CORONA and subsequent intelligence satellite programs has inspired a revolution in landscape archaeology in the Near East,” wrote archaeologist Jason Ur.

But last year’s declassification of imagery from the KH-9 HEXAGON intelligence satellite will be slower to generate any such revolutionary impact because the newly declassified images are so hard to access and to use.

The KH-9 imagery was successfully transferred from the National Geospatial-Intelligence Agency to the National Archives. But in order to protect the perishable film it must be maintained in cold storage, and so it was all sent to a National Archives facility in Lenexa, Missouri Kansas. Researchers must make their best guess as to what images they are seeking, and then order the originals to be transferred from cold storage. It’s a slow and cumbersome process.

The larger policy issue is that the archival burden on the National Archives and Records Administration is growing faster than the available resources. The task of curating the nation’s documentary heritage appears to be escalating out of control. Meanwhile, the Archives is literally running out of space. Last month, Archivist of the United States David S. Ferriero announced the closure of three NARA facilities “as part of ongoing budget adjustments.”

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Recently, one concerned researcher shared his frustrations about the current procedures for obtaining declassified satellite imagery. Secrecy News forwarded his comments to the National Archives and Records Administration, and a NARA official provided an annotated response, reproduced below.

Researcher: Since the [KH-9 HEXAGON] film is original negative, it was all shipped to Lenexa, Kansas.

NARA: Correct.  There is a potential that some of the film was not acetate and as such didn’t require cold storage but we did not have the resources to review each of the 14,685 cans to determine the base format and we erred on the side of caution in determining where to store it.

Researcher: NGA DID make available to NARA under the MOU [Memorandum of Understanding] the imagery, and finding aids, which are image mosaic overlays on maps 1:100,0000.  These are completely useless.

NARA: There was no MOU for this particular transfer.  Previous transfers had MOUs because there were multiple sets of records which were being distributed between NARA, NGA, and USGS. I think that there is some confusion between the past transfers and this one.  For this transfer we were provided with frame metadata.  The overlays referenced here do not index KH-9 film, they only index the airborne imagery previously transferred from NGA.

Researcher: There is also a CD-ROM which can be loaded onto a flash drive containing an ASCII file with mission date, pass frame, lat-long footprints, in an Excel format. But there is no way to know if the images are fully cloud-covered or not until the film arrives.

NARA: The CD provided for access as described in the KH-9 reference guide is what was provided to us by NGA.  We know we can make it better but it will likely never provide information on cloud cover by image.  All of our film, except for that indexed by the overlays, requires looking at it to determine quality and potential cloud cover.

Researcher: One must submit that data to an archivist who then converts the info into Original Negative Can numbers.  The researcher then must submit a second request including the ON number and the cold storage numbers to an Archivist, who quality controls it and submits the request to NARA Lenexa.

NARA: As with any other transfer of imagery, there is a process involved in going from whatever index exists to identifying the cans of imagery.  In the case of KH-9, once researchers identify imagery from the frame metadata, we have a can locator which converts the information for missions, dates, etc. to an actual can of imagery.  This can locator is available for copying by researchers, and is available through the consultant in the research room who can provide the necessary information.  It is also available on a hard drive for researchers to use themselves.

There is a need to fill out a pull slip for documentation of use and a Lenexa request form but that is done at the same time and does not require much effort other than writing a can number and barcode.

Researcher: The cans show up a few days later, and an Archivist must then quality control the cans for “supply chain management.”

I have spent a week at College Park just to find this out, and I have yet to actually order a can and see imagery.

NARA: The process for requesting cans from Lenexa is the same for any record stored there.   We submit the requests on a daily basis, the Lenexa staff pulls the items and ship them out the next day.   They are potentially available two days after the initial request.  We do have to take time to document where the cans are every step of the way in order to ensure the security of the holdings but that does not slow the process down significantly.

The biggest issues are those simply related to having records stored offsite–timing of requests, ability of staff pulling the items to find the correct items, and the weather which affects the shipments both during the winter and tornado season.  There are sometimes preservation issues identified early before the records are used but that is very rare and they are generally addressed quickly so the researcher does not have to wait.

Researcher: By the next Friday, the researcher can only have the film checked out for 3 business days, Friday, Saturday, and Monday, then the film must be flown back to cold storage.

NARA: All of the research rooms have a 3 business day hold for records.  This is simply to ensure that records are looked at in a timely manner and are available for other researchers.  There is always the opportunity to extend the period of retention but the researcher needs to communicate a need for that.

The NARA official added a rough estimate of the cost of create a duplicate set of KH-9 imagery to facilitate user access:

“At 14,685 cans, and an estimate of $800 worth of film stock per can, the cost is likely more than 11 million dollars.  In addition, we estimate it would take a dedicated employee some 8 years to perform the work (roughly 5 cans/day).”

“Digitization of course avoids the cost of the film stock, but has its own costs and challenges,” the official said. “We have to try and figure out where we focus our limited resources.”

Security-Cleared Population Rises to 5.1 Million

The number of Americans who have been investigated and deemed eligible for access to classified information rose last year to a total of 5,150,379 as of October 2013. It was the fourth consecutive year of growth in the security-cleared population.

The new total includes civilian and military government employees (3.7 million) and contractor personnel (1 million), as well as indeterminate others (0.4 million). It represents an increase of 4.7% from the previous year’s total of 4.9 million. Of the 5.1 million persons who were found eligible for access to classified information, 60% had access in fact.

An Office of Management and Budget review said that the continuing growth of the security clearance system is problematic both for financial and security reasons.

“[The] growth in the number of clearance-holders increases costs and exposes classified national security information, often at very sensitive levels, to an increasingly large population,” said the OMB review, which was released last week.

Accordingly, the OMB review recommended that the government “reduce [the] total population of 5.1M Secret and TS/SCI clearance holders to minimize risk of access to sensitive information and reduce cost.”

The number of security clearances is supposed to be reported to Congress each year by the Office of the Director of National Intelligence. But ODNI said it has not yet filed its 2013 report. However, the data were provided in the OMB review.

“Since 9/11, the number of clearances annual approved by DoD [the Department of Defense] has tripled, and continues to grow,” according to an independent review of the Washington Navy Yard Shooting in September 2013 that was also released last week.

“This growth magnifies the challenge of investigating clearance seekers, judging their applications, and periodically reviewing them after they are approved.”

“The continuing expansion of the cleared population has created a culture in which once-rare security clearances are now too often granted by default.” (Actually, security clearances have not been “rare” for quite a few decades.)

The independent review proposed that “DoD should seek to make a 10 percent cut in the number of positions that require access to material classified as Secret.”

“As soon as this reduction is attained, a follow-on review should determine whether further reductions can be realized.”

The independent review also identified “a growing culture of over-classification” as a related issue that “merit[s] additional focused study.” See Security From Within: Independent Review of the Washington Navy Yard Shooting, Department of Defense, November 2013 (released March 18, 2014).

Another review conducted by the Under Secretary of Defense for Intelligence concurred that there are too many people with security clearances. But it said that reducing the cleared population will not necessarily improve quality control or significantly reduce the burden on background investigators and adjudicators, because they are also responsible for a large number of “suitability” investigations in addition to security clearance investigations.

“The workload challenge will not be eliminated by reducing the number of security clearances because of the pending impacts of the alignment of suitability and security investigations and reinvestigations required by Executive Order 13467 and the 2012 Revised Federal Investigative Standards.”

“The net effect of the new standards will be to increase the Department’s investigative and adjudicative workload, regardless of the number of security clearances.” See Internal Review of the Washington Navy Yard Shooting, Report to the Secrecy of Defense, November 20, 2013.

Last week, the Department of Defense issued updated policy on the DoD Personnel Security Program (PSP), DoD Instruction 5200.02, March 21, 2014.

Among other things, the updated policy dictates that “All personnel in national security positions shall be subject to continuous evaluation,” referring to a process of collecting, reporting and evaluating security-relevant information about cleared individuals on an ongoing basis.

But this policy is aspirational rather than descriptive of current practice, which is limited to small-scale pilot projects to develop such a capacity. Full implementation of the “continuous evaluation” process is at least several years away, according to last week’s OMB report.

Secretary of Defense Chuck Hagel said last week that “We will consider reducing the number of personnel holding Secret security clearances by at least 10 percent, a recommendation in line with the October 2013 guidance from the Director of National Intelligence.”

Reducing the number of “personnel” that hold security clearances is a slightly different objective than reducing the number of “positions” that require access to classified information, as recommended by the Independent Review. It is not clear if the Secretary intended to make such a distinction.

In response to a request from Secrecy News, ODNI public affairs refused to provide a copy of the October 2013 DNI guidance. (Update: The DNI guidance was described further in this article from Politico.)

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).