Secrecy News

In a move that can only strengthen and improve oversight of the national security classification system, the Department of Defense Inspector General has begun a far-reaching review of Pentagon classification policy.

Among other things, the Inspector General review will focus on “efforts by the Department to decrease over-classification.”

In response to the “Reducing Over-classification Act” enacted by Congress in 2010, the IG will “evaluate the policies, procedures, rules, regulations, or management practices that may be contributing to persistent misclassification of material.”  The Act was originally sponsored by Rep. Jane Harman and Sen. Joe Lieberman.

The IG notified the military service secretaries and DoD agency heads of its new classification oversight project in an October 26, 2011 memorandum obtained by Secrecy News.

For years, critics of secrecy policy including the Federation of American Scientists have called for a greater role for inspectors general in classification oversight, to augment the work of the Information Security Oversight Office.  IGs typically offer several advantages:  Since they are part of the executive branch, their involvement in classification policy does not raise thorny separation of powers issues.  Moreover, as resident agency employees, IG investigators are already in place, they already hold all needed security clearances, and they should already be familiar with their agencies’ programs and policies.

Best of all, they are poised to identify defective practices when they discover them.

The FAS Project on Government Secrecy commenced two decades ago with a complaint we submitted to the DoD Inspector General regarding the classification of the Timber Wind nuclear rocket program as an “unacknowledged special access program.”  In its December 16, 1992 response, the IG determined that “the decision to protect the program using special program measures was not adequately justified.”  The IG further found that certain program information was safeguarded “for reasons that were not related to national security.” The Timber Wind program did not survive.

A new book-length study of leaks of classified information published by the Defense Intelligence Agency’s National Intelligence University contends that “the tension between maintaining national security secrets and the public’s right to know cannot be ‘solved’, but can be better understood and more intelligently managed.”

“Who Watches the Watchmen?” by Gary Ross explores the phenomenon of leaks from multiple angles, including their history, their prevalence and their consequences.  Most interestingly, he considers the diverse motivations of leakers and of the reporters who solicit, receive and publish their disclosures.  Some of these he finds defensible, and others not.

In the end, he advises that government officials should engage members of the media in a constructive dialog in order to avert the worst consequences of leaks.

“Proactively engaging with the media to examine the costs and benefits associated with unauthorized disclosures represents the greatest potential for reducing the perceived harm to national security,” Mr. Ross writes.

By contrast, “Maintaining the status quo or attempting to legislate a solution both have proven to be ineffective methods for resolving the dilemma. True change can only occur if the Executive Branch is willing to invest the time and resources necessary to implement an approach focused on engagement with the media.”

This is a congenial conclusion, which implies that punitive new legislation can be avoided and that remaining differences between reporters and government officials can be fruitfully discussed.

But it arguably misapprehends the harsh new policy landscape in the wake of the WikiLeaks episode (which is also discussed in the book).  The status quo has been transformed in response to WikiLeaks in two ways that are unfavorable to leakers, justified or unjustified.

First, the threat of unauthorized disclosures has been elevated in the view of government officials to one of “the most menacing foreign intelligence threats in the next two to three years.”  In January 31 testimony to the Senate Intelligence Committee, DNI James R. Clapper said that unauthorized disclosures of classified information had “caused significant damage to US interests.” Further, he said, “We assess that trusted insiders using their access for malicious intent represent one of today’s primary threats to US classified networks.”  “Engagement with the media” will not be the main response to such threats.

And second, WikiLeaks, which targeted legitimate and illegitimate secrets with equal vigor, has inspired and accelerated the development of new forensic tools and methods to identify the sources of unauthorized disclosures.  Internal surveillance of classified networks is set to grow, with new mechanisms for tracking and auditing online activity by government employees.  Whatever else might be true, the status quo of a few years ago has been left behind.

The Military Intelligence Professional Bulletin is a quarterly journal published by the U.S. Army to promote awareness and discussion of current topics in military intelligence.  Although unclassified, the Bulletin is not made available online by the Army.  Recent volumes can be found, however, on the Federation of American Scientists website.

The two latest issues are devoted to Intelligence in the Current Environment (April-June 2011) and Enabling Intelligence Analysis (July-September 2011).

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A House-Senate conference report this week called on the Administration to accelerate the use of civilian unmanned aerial systems (UAS), or “drones,” in U.S. airspace.

The pending authorization bill for the Federal Aviation Administration directs the Secretary of Transporation to develop within nine months “a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.”

“The plan… shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.”

The conference bill, which still awaits final passage, also calls for establishment of UAS test ranges in cooperation with NASA and the Department of Defense, expanded use of UAS in the Arctic region, development of guidance for the operation of public unmanned aircraft systems, and new safety research to assess the risk of “catastrophic failure of the unmanned aircraft that would endanger other aircraft in the national airspace system.”

The Department of Defense is pursuing its own domestic UAS activities for training purposes and “domestic operations,” according to a 2007 DoD-FAA memorandum of agreement.  (“Army Foresees Expanded Use of Drones in U.S. Airspace,” Secrecy News, January 19, 2012.)

Update: In the recently enacted FY2012 National Defense Authorization Act (section 1097), Congress mandated that “the Administrator of the Federal Aviation Administration shall establish a program to integrate unmanned aircraft systems into the national airspace system at six test ranges.” This new test range program is supposed to be established within 180 days.

As of 2010, hundreds of FAA authorizations had already been granted for use of unmanned aerial systems within U.S. airspace.

A handful of historical intelligence satellite images were declassified last month to coincide with a new display of the GAMBIT and HEXAGON spy satellites at the National Air Force Museum at Wright-Patterson Air Force Base.

The GAMBIT and HEXAGON satellites were formally declassified last September on the occasion of the fiftieth anniversary of the National Reconnaissance Office.  At that time, the NRO released voluminous documentation on the development of those satellites.  But the associated imagery, which is held by the National Geospatial-Intelligence Agency, was not released.  Now a small number of satellite images have been made public.

However, the newly disclosed images are not originals, but are embedded in “posters” published by the NRO.  As such, they do not lend themselves to detailed analysis, complained Charles P. Vick of GlobalSecurity.org.  Nor are the original negatives of the declassified photos available for public inspection.

There is an annotation on the released images indicating that they were declassified on January 13, 2012 by the Director of National Intelligence, which would be consistent with the provisions of the 1995 executive order 12951.

“The images have undoubtedly been degraded, because GAMBIT and HEXAGON’s best imagery capabilities remain classified,” wrote Dwayne Day in The Space Review. “These photographs are hopefully the first in many yet to come, and will help us better understand the battles in the shadows of the Cold War.”

Among other things, the NRO also released a new edition of the 1973 histories of GAMBIT and HEXAGON written by Robert L. Perry.

“Perry’s histories… serve as exemplars of the art and craft of historians. They are rich in detail, well-sourced, and written with engaging prose,” according to an informative introduction by James D. Outzen of the Center for the Study of National Reconnaissance.

Unfortunately, the new edition, while handsome, is not exemplary because it obscures the redaction of material that is still considered classified:  “With respect to redacted material, we have edited the volumes to smooth the flow of language in the volume, rather than indicate where material was redacted.”  This was a mistake.

Remarkably, the NRO initiative to declassify GAMBIT and HEXAGON program information, including imagery, dates back to 1997.  At that time, a seven-month implementation schedule was optimistically anticipated.

“I would like to hiqhliqht this declassification effort with a National Reconnaissance Office (NRO) ceremony (including the release of selected declassified imagery from both systems) in October 1997,” wrote NRO Deputy Director Keith R. Hall in a March 1997 memorandum that was obtained by Jeffrey Richelson of the National Security Archive.

As it turned out, the declassification process took 14 years, not seven months.

A newly revised U.S. Air Force directive on continuity of operations under emergency circumstances refers matter-of-factly to Raven Rock Mountain Complex, a largely restricted U.S. government facility in Pennsylvania.  See Air Force Continuity of Operations (COOP) Program, Air Force Instruction 10-208, 15 December 2011.

Raven Rock, also known as Site R, has been operational since 1953 for purposes of emergency communications, disaster relocation and recovery.  But most operations at the facility have been classified, and the facility itself was rarely mentioned in official publications during most of the past half century.  A previous edition of the new Air Force Instruction that was issued in 2005 made no reference to Raven Rock.

More than two years ago, President Obama set a December 31, 2013 deadline for completing the declassification processing of a backlog of more than 400 million pages of classified historical records that were over 25 years old.  But judging from the limited progress to date, it now seems highly unlikely that the President’s directive will be fulfilled.

As of December 2011, following two years of operation, the National Declassification Center had completed the processing of only 26.6 million pages of the 400 million page backlog, according to the latest NDC semi-annual report.  If the Center increased productivity by a factor of ten, that would still be insufficient to achieve its goal.

The looming failure to comply with an explicit presidential order is a sign of the growing autonomy of the secrecy system, which to a surprising extent is literally out of control.

One of the obstacles to a more efficient declassification process is a 1999 statute known as the “Kyl-Lott” Amendment, which requires record collections to be certified as “highly unlikely” to contain classified nuclear weapons information known as Restricted Data or Formerly Restricted Data.  In many cases, today’s backlogged records were not certified as required by the originating agencies and therefore they must now undergo an additional review.

“This unexpected review step will certainly impact our ability to complete all declassification processing by the deadline,” according to the new semi-annual report from the National Declassification Center.

The need for interagency cooperation to deal with the backlog of historical records awaiting declassification was anticipated by President Obama.  “The Secretaries of State, Defense, and Energy, and the Director of National Intelligence shall provide the Archivist of the United States with sufficient guidance to complete this task,” he wrote in a December 29, 2009 memo.

And in fact, agencies have devoted increased efforts to declassification.  “Once the enormity of the Kyl-Lott challenge was realized, many participating agencies have stepped up to ensure that their records meet this requirement,” according to NDC Director Sheryl J. Shenberger.

But under current procedures, it is hard to see any trajectory that will lead to elimination of the declassification backlog by December 2013.

One alternative way to proceed would be for the National Archives to seek legislative relief from the certification requirements of the Kyl-Lott Amendment, particularly with respect to so-called Formerly Restricted Data (FRD).  Most of the historical nuclear weapons information in the FRD category is of no special sensitivity and its presence should no longer pose an obstacle to expedited declassification.  In those cases where the information is sensitive, such as weapons design information, the Department of Energy is currently seeking authority to remove it from the FRD category and to redesignate it as Restricted Data.  This would further strengthen the case for amending Kyl-Lott to eliminate screening for FRD, thereby simplifying the declassification problem.

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Former CIA officer John Kiriakou this week became the latest person to be charged under the Espionage Act with unauthorized disclosures of classified information.  But unlike the previous defendants, Mr. Kiriakou was also charged with violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert intelligence officer to a journalist.

The Intelligence Identities Protection Act was enacted in 1982 to combat the efforts of Philip Agee and his colleagues to expose CIA personnel around the world.  The Act made it a felony to reveal the names of “covert agents,” i.e. intelligence officers who are under cover and whose identities are classified information.

But until now, the Act has never been used in a contested prosecution.  “There do not appear to be any published cases involving prosecutions under this act, despite some high-profile incidents involving the exposure of U.S. intelligence agents,” according to a Congressional Research Service report on the subject from last year.

(There has, however, been one conviction under the Act.  In 1985, former CIA clerk Sharon Scranage pleaded guilty to providing classified information in violation of the Act concerning U.S. intelligence operations in Ghana.  She served two years in jail.)

The Intelligence Identities Protection Act is one of the very few classification-related statutes that purport to apply to anyone, not only to government officials who possess authorized access to classified information.  The language of the Act explicitly indicates that it also applies to private individuals — reporters, researchers, or anyone else — who expose covert agents, if they do so as part of a “pattern of activities” and with the requisite knowledge and intent.

In the present case, Mr. Kiriakou is charged with providing the name of a “covert agent” in response to inquiries from a reporter, “Journalist A,” who then passed that information on to defense attorneys at Guantanamo.  (The attorneys used the information in a classified pleading that they filed in 2009, which is what first brought the unauthorized disclosure to official attention.)

An FBI affidavit attached to the criminal complaint against Kiriakou states repeatedly that no laws were broken by the defense team that received the classified information.  The FBI notably does not volunteer the same assurance concerning Journalist A (whose name is not yet on the public record), who actively solicited the proscribed information from Kiriakou and forwarded it to the defense attorneys.

But Journalist A would presumably not be subject to the Intelligence Identities Protection Act because his efforts were not part of a systematic effort to expose classified identities. (The name of the covert agent that he allegedly elicited and conveyed to the defense team at Guantanamo has not been publicly disclosed.)

According to the Congressional Research Service report, the Act “would appear to preclude the prosecution of a recipient of covered information, whether solicited or not, who publishes the information but has not engaged in a prohibited ‘pattern of activities’ intended to disclose the names of covert agents.”

The CRS report also makes the curious observation that “It is not an offense for… a covert agent to disclose his or her own identity.”  See Intelligence Identities Protection Act, January 28, 2011.

Mr. Kiriakou is the sixth individual to be charged in the Obama Administration’s unprecedented campaign against leaks of classified information to the media, following Shamai Leibowitz, Jeffrey Sterling, Thomas Drake, Bradley Manning and Stephen Kim.  Among other things, the Administration’s aggressive pursuit of leaks represents a challenge to the practice of national security reporting, which depends on the availability of unauthorized sources if it is to produce something more than “authorized” news.

Update: The Intelligence Identities Protection Act was criticized in a April 6, 1982 op-ed by then-Senator Joseph Biden entitled “A Spy Law That Harms National Security.” (h/t Historiographic Anarchy)

The use of unmanned aerial systems (UAS) within the United States is certain to increase in the years to come, as a new Army policy has recently made clear.  (“Army Foresees Expanded Use of Drones in U.S. Airspace,” Secrecy News, January 19.)  But in fact the use of unmanned aircraft or drones within U.S. airspace has already advanced to a degree that is not widely recognized.

As of 2010, the Federal Aviation Administration had already issued hundreds of “certificates of authorization” (COAs) for the domestic use of drones.

“Right now, today as we sit here, we have 251 certificates of authorization for unmanned aircraft, 140 of them are DOD related,” said Hank Krakowski of the FAA at an informative Senate hearing in September 2010.  “We have not rejected or denied any DOD COAs in 2010, and we keep moving forward.”

On the other hand, Mr. Krakowski cautioned, “While UASs offer a promising new technology, the limited safety and operational data available to date does not yet support expedited or full integration into the NAS [National Airspace System]. Because current available data is insufficient to allow unfettered integration of UASs into the NAS–where the public travels every day– the FAA must continue to move forward deliberately and cautiously, in accordance with our safety mandate.”

“Unmanned aircraft systems [were] originally and primarily designed for military purposes,” he noted. “Although the technology incorporated into UASs has advanced, their safety record warrants caution. As we attempt to integrate these aircraft into the NAS, we will continue to look at any risks that UASs pose to the traveling public as well as the risk to persons or property on the ground.”

See “The Integration of Unmanned Aircraft Systems (UASs) Into the National Airspace System (NAS): Fulfilling Imminent Operational and Training Requirements,” Senate Committee on Commerce, Science and Technology, September 13, 2010 (published September 2011).

In the 2012 National Defense Authorization Act, Congress included language requiring a report on “the integration of unmanned aerial systems into the national airspace system” (h/t Emptywheel).

The legality of the use of drones in CIA targeted killing programs is among the topics that is explored in the brand new issue of the Journal of National Security Law and Policy on the subject of covert war.

A government agency’s decision to revoke an employee’s security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week.

Judge James C. Cacheris of the Eastern District of Virginia dismissed a lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National Geospatial-Intelligence Agency (NGA).  Mr. Hegab alleged that his security clearance had been revoked by NGA “based solely on [his] wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization.”  (“Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says,” Secrecy News, October 6, 2011.)

The NGA disputed the claim and moved to dismiss the lawsuit.  Mr. Hegab, represented by attorney Sheldon I. Cohen, responded in opposition on December 14.

But in his January 19 opinion, Judge Cacheris said that it didn’t matter even if the plaintiff’s allegations were true, because the court lacked the authority to review the underlying bases of the dispute.

“A determination of whether Hegab’s security clearance was revoked due to legitimate national security concerns or, as Hegab alleges, constitutionally impermissible bases would necessarily require a review of the merits of NGA’s decision. Absent clear congressional directive, which Hegab fails to identify, such a review is flatly prohibited by Egan and Fourth Circuit precedent,” Judge Cacheris wrote.

“Egan” here refers to the 1988 U.S. Supreme Court decision in the case of Department of the Navy v. Egan, which has often been invoked in support of broad and unreviewable executive branch authority in national security policy.  A critique of Egan and its subsequent application was presented by constitutional scholar Louis Fisher, then of the Law Library of Congress, in “Judicial Interpretations of Egan,” November 13, 2009.