Secrecy News

The need to improve the dissemination of terrorism-related information was among the preeminent policy lessons of September 11.

Yet five years later, “systematic, trusted information sharing remains more of an aspiration than a reality,” according to a new task force report from the Markle Foundation.

The report proposes a new conceptual framework for authorizing and promoting information sharing, based on the information’s intended uses rather than its bureaucratic origin or other incidental characteristics.

This would permit each agency to get the information it needs to perform its mission, the authors say, while allowing auditing to ensure proper use and instill public confidence.

The Markle task force report also calls for a new approach to national security classification policy that is more tolerant of potential disclosure risks so as to permit more effective sharing.

“Current classification procedures and practices… overemphasize the risks of inadvertent disclosure over those from failing to share.”

“We recommend a new risk management approach to handling classified and other sensitive information that gives adequate weight to the risks of not sharing, and provides greater flexibility and more emphasis on mitigating the risks of disclosure.”

The authors stress the need for a transparent policy development process.

“In the absence of public confidence that personal information is being used effectively, appropriately, and consistently with both applicable laws and shared expectations of privacy, the necessary public support will not be forthcoming, and even the most promising intelligence systems will fail.”

The task force does not envision the general public as a consumer of terrorism-related information and so it does not contemplate measures to improve public disclosure of such information, whether classified or unclassified.

And in an overview of information sharing policy development, the report neglects a few recent innovations that are at least modestly consistent with its recommendations, such as the 2003 executive order provision (sec. 4.2b) that permits emergency disclosure of classified information to non-cleared persons, and the “RELIDO” marking that delegates disclosure authority for intelligence information beyond the originator.

Overall, however, the Markle task force report provides an intelligent account of a vexing set of issues. And it has the great virtue of going beyond critique to propose potentially workable solutions as well as a process for implementing and refining them.

See “Mobilizing Information to Prevent Terrorism: Accelerating Development of a Trusted Information Sharing Environment” (pdf), Third Report of the Markle Foundation Task Force chaired by Zoe Baird and James Barksdale, July 13.

As if to validate the most pessimistic view of the state of information sharing, the Baltimore Sun reported that a White House initiative to strengthen sharing by standardizing the use of “sensitive but unclassified” markings is off track and behind schedule.

See “Turf war hampers war on terror” by Siobhan Gorman, Baltimore Sun, July 13.

A new Congressional Research Service report provides a resume of the Terrorist Finance Tracking Program that was recently described in news stories.

See “Treasury’s Terrorist Finance Program’s Access to Information Held by the Society for Worldwide Interbank Financial Telecommunication (SWIFT)” (pdf), July 7, 2006.

News reports on the program elicited furious criticism of the New York Times and other publications from those who believed classified information had been improperly and damagingly disclosed.

But “closely similar” accounts were publicly presented years ago in open congressional hearings, the Washington Post reported today.

See “Watching Finances Of Terror Suspects Discussed in 2002″ by Walter Pincus, Washington Post, July 14.

Another new CRS report describes the erosion of the U.S. Army officer corps.

“The Army currently projects an officer shortage of nearly 3,000 in FY2007, with the most acute shortfalls in ’senior’ captains and majors with 11 to 17 years of experience.”

See “Army Officer Shortages: Background and Issues for Congress” (pdf), July 5, 2006.

The Congressional Budget Office has prepared a new account (pdf) of U.S. spending in Iraq in response to a request from Rep. John Spratt (D-SC).

“The Congress has appropriated $432 billion for military operations and other activities related to the war on terrorism since September 2001. According to CBO’s estimates, from the time U.S. forces invaded Iraq in March 2003, $290 billion has been allocated for activities in Iraq.”

For reasons explained in the report, the estimates are slightly lower than those prepared recently by the Congressional Research Service (pdf).

See “Estimated Costs of U.S. Operations in Iraq Under Two Specified Scenarios,” Congressional Budget Office, July 13.

Donald Keyser, who had been a respected State Department expert on China, pled guilty last year to illegally removing classified documents from the State Department, making false statements to the FBI, and concealing his relationship with a Taiwanese intelligence officer.

Now the government says that he is failing to fulfill the terms of his plea agreement, and it told a court that the agreement should therefore be revoked, the New York Sun reported today.

In support of its position, the Justice Department filed a detailed and occasionally sordid account (pdf) of Keyser’s alleged entanglement with Taiwanese intelligence.

“The unusual filing opens a window onto the FBI’s counterintelligence tradecraft,” wrote reporter Josh Gerstein in the Sun. He also noted that Keyser’s attorney denies the allegations and says the new Justice Department memo is unfair and inaccurate.

See “A Novel-Like Tale Of Cloak, Dagger Unfolds in Court” by Josh Gerstein, New York Sun, July 14.

The government memorandum places the worst possible construction on Keyser’s activities, including many that seem easily susceptible to benign explanations. In any case it remains true that he conducted an improper relationship with a foreign intelligence officer and violated classification procedures.

A copy of the July 5 government memorandum in support of its motion to find Keyser in breach of his plea agreement is posted here.

“Don’t use your left hand for contact with others,” advises the U.S. Marine Corps in a new edition of the Iraq Culture Smart Card (very large pdf) which is distributed to military personnel in Iraq. “It is considered unclean.”

It seems late in the day for such niceties. Amid the daily brutality of the Iraq war, there is probably little to be gained by courtesy or to be lost by mere rudeness.

But the Marine Corps Intelligence Activity evidently thinks otherwise.

The MCIA has produced an updated Iraq Culture Smart Card, dated May 2006, which features rudimentary information on Iraqi customs, religion and language. A copy was obtained by Secrecy News and is available here (in a very large 22 MB PDF file).

In a significant policy reversal, the Department of Defense last week formally directed that the humane treatment requirements of Common Article 3 of the Geneva Conventions shall henceforth be applied to all prisoners and detainees in DoD custody (as first reported by the Financial Times). See this July 7 memorandum (pdf) from Deputy Secretary of Defense Gordon England.

The procedures for trying enemy prisoners and detainees in the war on terror are again a subject of deliberation (and of a hearing before the Senate Judiciary Committee today) in the wake of the Supreme Court’s ruling that the tribunals established by the Bush Administration are unlawful.

A 2005 report of the Congressional Research Service provides some background on the development of this issue. Though now out of date in certain respects, it includes useful tables comparing the various features and procedural safeguards of general courts-martial with those of military commissions and tribunals.

See “The Department of Defense Rules for Military Commissions: Analysis of Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of Military Justice” (pdf), updated August 4, 2005.

Other notable new CRS reports not readily available in the public domain include the following.

“National Emergency Powers” (pdf), updated June 20, 2006.

“Nuclear Weapons: Comprehensive Test Ban Treaty” (pdf), updated June 21, 2006.

“Combat Aircraft Sales to South Asia: Potential Implications” (pdf), July 6, 2006.

“Restructuring U.S. Foreign Aid: The Role of the Director of Foreign Assistance” (pdf), June 16, 2006.

The House Government Reform Committee will hold a hearing July 13 on the role that considerations of foreign influence play in decisions to grant or deny security clearances for access to classified information.

One of the principal considerations leading to denial of a security clearance is when the applicant has relatives or relationships or other ties abroad in countries of concern, and particularly in the Middle East and the Far East.

This approach, if applied too rigidly, can be counter-productive since the best linguists and the most accomplished area experts will almost invariably have “relationships” of one kind or another with persons in their region of expertise.

But the process for adjudicating disputes over clearances seems distinctly skewed against the applicant.

In a new report (pdf), attorney Sheldon Cohen identified a peculiar anomaly in the performance of the Defense Office of Hearings and Appeals (DOHA), which rules on disputed clearance matters for the Defense Department. In the large majority of disputes presented to it, he found, DOHA has consistently ruled against the applicant.

“If Department Counsel appeals a decision granting a clearance, it is virtually assured that the Appeal Board will reverse. Yet, if an applicant appeals a decision involving a foreign connection denying a clearance, the Appeal Board will assuredly affirm the denial,” found Cohen, who specializes in security clearance cases.

See “Appeal Board Decisions of the Defense Office of Hearings and Appeals: Are They Arbitrary and Capricious?” by Sheldon I. Cohen, July 10, 2006.

A May 18 letter sent to President Bush by House Intelligence Committee chairman Rep. Pete Hoekstra criticizing Administration policy on intelligence (first reported July 9 by Eric Lichtblau and Scott Shane of the New York Times) has already earned an enduring place in the annals of congressional oversight of intelligence.

While it has been welcomed by some as a sign of congressional vigor and independence, the letter from Chairman Hoekstra also features a weird admixture of paranoia and pique.

“I have been long concerned that a strong and well-positioned group within the Agency intentionally undermined the Administration and its policies,” he wrote.

This conspiracy theory, previously alleged mainly by conservative bloggers and editorial writers, “is supported by the Ambassador Wilson/Valerie Plame events” — despite the fact that Valerie Plame, whose CIA career was destroyed, would appear to be a victim rather than a perpetrator — “as well as by the string of unauthorized disclosures.”

“I have come to the belief that, despite his service to the [Directorate of Operations], Mr. Kappes [the new CIA Deputy Director] may have been part of this group.”

Kappes must be viewed with suspicion, Hoekstra explained, since his appointment was not opposed by House Democrats!

“I must take note when my Democratic colleagues – those who so vehemently denounced and publicly attacked the strong choice of Porter Goss as Director – now publicly support Mr. Kappes’s return,” Chairman Hoekstra observed acutely.

“Further, the details surrounding Mr. Kappes’s [2004] departure from the CIA give me great pause. Mr. Kappes was not fired, but, as I understand it, summarily resigned his position shortly after Director Goss responded to his demonstrated contempt for Congress and the Intelligence Committees’ oversight responsibilities.”

This is an idiosyncratic description of a dispute that arose between senior DO officials and the former congressional staff members who accompanied Director Goss to CIA, which led to the resignations of several officials.

“The fact is, Mr. Kappes and his Deputy, Mr. Sulick, were developing a communications offensive to bypass the Intelligence Committees and the CIA’s own Office of Congressional Affairs. One can only speculate on the motives but it clearly indicates a willingness to promote a personal agenda,” Rep. Hoekstra wrote.

As David Corn wrote in The Nation, “It’s hard to know who to root for” in this strange clash of personalities and institutions.

Maybe the answer is that the conflict itself is the good news, since it restores a healthy tension to the oversight process and drives the disclosure of new information into the public domain.

Coincidentally, Michael Sulick, one of the members of the supposed anti-Bush “cabal” at CIA named by Rep. Hoekstra, is the author of a colorful new first-person account of a CIA initiative to establish relations with Lithuania in 1991 when the Soviet Union fell.

See “As the USSR Collapsed: A CIA Officer in Lithuania” by Michael J. Sulick, Studies in Intelligence, vol. 50, no. 2, 2006.

“Arrogance, secrecy, and bad judgment have mired us in a mess in Guantanamo from which we are having great difficulty in extricating ourselves,” wrote U.S. Army Gen. (Ret.) Barry R. McCaffrey in a report (pdf) on his recent trip to the U.S. prison at Guantanamo Bay.

“The JTF Guantanamo Detention Center is the most professional, firm, humane and carefully supervised confinement operation that I have ever personally observed,” he stated.

At the same time, “Much of the international community views the Guantanamo Detention Center as a place of shame and routine violation of human rights. This view is not correct. However, there will be no possibility of correcting that view.”

“There is now no possible political support for Guantanamo going forward,” Gen. McCaffrey wrote.

“We need a political-military decisive move to break the deadlock” and to permit the closure of the Guantanamo detention facility.

Gen. McCaffrey proposed a combination of steps including transfer of as many detainees as possible to their host countries, criminal trials for some, and efforts to engage foreign and international legal organs to assume jurisdiction.

“We need to rapidly weed out as many detainees as possible and return them to their host nation with an evidence package as complete as we can produce. We can probably dump 2/3 of the detainees in the next 24 months.”

“Many we will encounter again armed with an AK47 on the battlefields of Iraq and Afghanistan. They will join the 120,000 + fighters we now contend with in those places of combat.”

But even if that is so, he wrote, “It may be cheaper and cleaner to kill them in combat then sit on them for the next 15 years.”

“We need to be completely transparent with the international legal and media communities about the operations of our detention procedures wherever they are located,” Gen. McCaffrey advised.

A copy of Gen. McCaffrey’s June 28, 2006 trip report on his June 18-19 trip to Guantanamo is available here.

Department of Energy classification reviewers at the National Archives examined over 2.5 million pages of previously declassified records earlier this year and found only nine (9) pages that they said contained classified information which should not have been publicly disclosed, according to a new report to Congress (pdf).

This is a vanishingly small error rate of less than a thousandth of a percent, the smallest ever reported by DOE since it began searching for inadvertently released classified nuclear weapons information in declassified files in 1999.

This might be considered well within the boundaries of what is reasonably achievable under a risk management approach to security policy.

Yet the DOE declassified document review program seems predicated on absolute risk avoidance, in which no release of classified information, no matter how outdated or innocuous it may be, is acceptable. And so the reviewers toil on, and public access to historical records at the National Archives remains disrupted.

See the Twenty-First Report to Congress on Inadvertent Disclosures of Restricted Data, U.S. Department of Energy, May 2006 (released in redacted form July 2006).