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).

ODNI Rethinks Secrecy and Openness in Intelligence

By leaking classified intelligence documents, Edward Snowden transformed public awareness of the scale and scope of U.S. intelligence surveillance programs. But his actions are proving to be no less consequential for national security secrecy policy.

“These leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy,” said Robert S. Litt, General Counsel at the Office of the Director of National Intelligence. He spoke at a March 18 Freedom of Information Day program sponsored by the Collaboration on Government Secrecy at American University Washington College of Law.

Mr. Litt made it clear that he did not approve of the Snowden leaks, which he said were unlawful and had “seriously damaged our national security.” Yet he stressed that the leaks have also prompted a reconsideration of previously accepted patterns of secrecy.

“We have had to reassess how we strike the balance between the need to keep secret the sensitive sources, methods and targets of our intelligence activities, and the goal of transparency with the American people about the rules and policies governing those activities.”

“One lesson that I have drawn from the recent events… is that we would likely have suffered less damage from the leaks had we been more forthcoming about some of our activities, and particularly about the policies and decisions behind those activities,” Mr. Litt said.  (Director of National Intelligence James Clapper made the same point to Eli Lake of the Daily Beast last month.)

“Going forward, I believe that the Intelligence Community is going to need to be much more forward-leaning in what we tell the American people about what we do,” Mr. Litt said. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected. And we need to move beyond the mindset of merely reacting to formal requests that we make information public, to a mindset of proactively making available as much information as we can, consistent with the need to protect sources and methods.”

“Greater disclosure to the public is necessary to restore the American people’s trust that intelligence activities are not only lawful and important to protecting our national security, but that they are appropriate and proportional in light of the privacy interests at stake. In the long run, our ability to protect the public requires that we have the public’s support,” Mr. Litt said.

While Mr. Litt’s remarks conveyed an overall message of beneficence, responsiveness, and good citizenship, they also had some peculiar features.

It is disconcerting to realize that the reassessment of classification policy described by Mr. Litt was not prompted by the diligent exercise of congressional oversight or by judicial review or by ordinary advocacy. Rather it was explicitly inspired by the Snowden leaks, which Mr. Litt described as “criminal.” The upshot is that leaks emerge as a uniquely powerful tool for shaping intelligence classification policy, while conventional checks and balances appear all but irrelevant by comparison.

Moreover, the purpose of the newfound push for greater transparency seems to be instrumental, not principled. In other words, it is driven by tactical considerations, not by statutory requirements or any other objective norm.

“I strongly believe that the best way to prevent the damage that leakers can cause is by increased transparency on our part,” Mr. Litt said. “Transparency can both lessen the incentive for disaffected employees to disclose our activities improperly, and provide the public appropriate context to evaluate leaks when they occur.”

That implies that what is needed is only as much transparency as it takes to achieve these imprecise and transient goals. It is a unilateral move that can be unilaterally reversed.

And then there is the fact that Mr. Litt’s rethinking of classification policy implies no new institutional reforms or externally-imposed constraints. Instead, the very same people who have classified too much up to now are suddenly expected to change course and to disclose more. It is not immediately clear how or why that would happen.

“There is no question that overclassification of information is a genuine problem,” Mr. Litt said. “So how do we deal with the problem of overclassification? I think that there are three principal steps we can take.”

“The first is to change the culture. We need high-level management emphasis on the problem of overclassification,” he said. To his credit, Mr. Litt has helped provide such emphasis.

“Second, we need to continue our efforts at proactive transparency– at reviewing information that we have historically protected to see whether, in fact, the overall public interest would better be served by releasing the information.” Significantly, however, he refrained from providing specific performance goals or benchmarks by which future progress could be measured.

“Finally, I think that those in the agencies who are responsible for responding to FOIA requests, and who are representing the government in FOIA litigation, need to look critically at all potentially responsive documents that are classified,” Mr. Litt said. “We should focus not on whether we can protect information, but whether we should.”

This is an interesting formulation. Most FOIA officers do not have authority to declassify records, and the adversarial nature of the FOIA process is rarely conducive to self-critical analysis of established agency policies even by more senior officials. But sometimes it is.

In 1997, the Federation of American Scientists filed suit against the CIA for release of the intelligence budget total for that year. The CIA ultimately decided that it could not defend its position of classifying the figure, according to an internal draft statement that was prepared for DCI George Tenet and released by the Clinton Library just last week.

“In order to defend this lawsuit,” the Tenet statement read, “I, as head of the Intelligence Community, would have had to sign a declaration to the court that release of the figure in question could cause serious damage to the national security. I found that, in good conscience, I could not attest to that statement.”

But such judgments are fluid and can be fleeting. Two years later, in response to another lawsuit for the 1999 budget figure, Director Tenet had no trouble declaring under oath that “Disclosure of… the total appropriation reasonably could be expected to cause damage to the national security in several ways.”

So spontaneous gestures of openness and transparency, as welcome as they may be, are imperfect substitutes for systemic change and external accountability.

News organizations have now released some 1,300 pages of classified records leaked by Edward Snowden, according to a tally by cryptome.org.  In response, US intelligence agencies have declassified and disclosed approximately twice that many.

“Our commitment to increased transparency will continue,” Mr. Litt said.

Climate Change Legislation, and More from CRS

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

Climate Change Legislation in the 113th Congress, March 12, 2014

Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources, March 13, 2014

Canadian Oil Sands: Life-Cycle Assessments of Greenhouse Gas Emissions, March 10, 2014

Keystone XL: Greenhouse Gas Emissions Assessments in the Final Environmental Impact Statement (FEIS), March 7, 2014

Nuclear Energy: Overview of Congressional Issues, March 14, 2014

The First Responder Network (FirstNet) and Next-Generation Communications for Public Safety: Issues for Congress, March 12, 2014

Department of Homeland Security Appropriations: FY2014 Overview and Summary, March 11, 2014

NASA Appropriations and Authorizations: A Fact Sheet, March 11, 2014

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, March 14, 2014

The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues, March 7, 2014