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Updated below

Open Source Works, which is the CIA’s in-house open source analysis component, is devoted to intelligence analysis of unclassified, open source information.  Oddly, however, the directive that established Open Source Works is classified, as is the charter of the organization.  In fact, CIA says the very existence of any such records is a classified fact.

“The CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request,” wrote Susan Viscuso, CIA Information and Privacy Coordinator, in a November 29 response to a Freedom of Information Act request from Jeffrey Richelson of the National Security Archive for the Open Source Works directive and charter.

“The fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure,” Dr. Viscuso wrote.

This is a surprising development since Open Source Works — by definition — does not engage in clandestine collection of intelligence.  Rather, it performs analysis based on unclassified, open source materials.

Thus, according to a November 2010 CIA report, Open Source Works “was charged by the [CIA] Director for Intelligence with drawing on language-trained analysts to mine open-source information for new or alternative insights on intelligence issues. Open Source Works’ products, based only on open source information, do not represent the coordinated views of the Central Intelligence Agency.”

As such, there is no basis for treating Open Source Works as a covert, unacknowledged intelligence organization.  It isn’t one.

(Even if Open Source Works were engaged in classified intelligence analysis, the idea that its charter must necessarily be classified is a non-sequitur.  Illustrating the contrary proposition, the Department of Defense last week issued a new Instruction on “Geospatial Intelligence (GEOINT),” setting forth the policies governing that largely classified intelligence domain.)

Beyond that, it is an interesting question “why the CIA felt the need to establish such a unit given the existence of the DNI Open Source Center,” said Dr. Richelson.  The Open Source Center, the successor to the Foreign Broadcast Information Service, is the U.S. Government’s principal open source agency.  It is, naturally, a publicly acknowledged organization.

“An even more interesting question,” he added, is “why would the CIA, whose DI [Directorate of Intelligence] organization structure is published on its website, feel it necessary to refuse to confirm or deny the existence of this new open source component?”

The CIA’s extreme approach to classification policy is timely in one sense:  It provides a convenient benchmark for evaluating current progress in combating overclassification.

If the charter of CIA’s Open Source Works remains classified six months from now, when the Obama Administration’s Fundamental Classification Guidance Review will have completed its first cycle, that will be a decisive indication that the Review failed to eliminate even the most blatant examples of overclassification.

Update: On December 13, the CIA informed Dr. Richelson that its response to his FOIA request was “an administrative error,” and that the request would be processed.

The U.S. State Department insists that the publication of many thousands of classified diplomatic cables by WikiLeaks does not alter their classification status.  In response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union for 23 of the cables, the Department of State this week released redacted versions of 11 of them and withheld the other 12 in their entirety — even though the full text of all of them is readily available online.

In principle, the question of whether unauthorized disclosure of classified information is tantamount to declassification of that information is not new, although the WikiLeaks case presents it with new force.  The government has always contended, and courts have generally accepted, that unauthorized or unofficial disclosure does not imply or require declassification.

The “official acknowledgment by an authoritative source” of information that is already in the public domain adds a quantum of validity and may itself constitute “new information that could cause damage to the national security” the DC Circuit Court said in Afshar v. Department of State (1983).

Similarly, “there can be a critical difference between official and unofficial disclosures” in the “arena of intelligence and foreign relations,” the DC Circuit said in Fitzgibbon v. CIA (1990).

The Fitzgibbon ruling set forth three conditions that must be met in order for a prior disclosure to overcome a government claim of proper classification and to justify release:   (1) the information requested must be as specific as the information previously released;  (2) the information requested must match the information previously released;  and (3) the information requested must have been previously made public through an official and documented disclosure, i.e. not “leaked.”

Within the FOIA context, this restrictive construct all but shuts the door to an argument that prior public disclosures justify a mandatory release of classified information that has been withheld.  It seems designed to prevent new disclosures, not to enable them.  Without having researched the question in depth, I believe I may be the only FOIA litigant ever to use the Fitzgibbon criteria to compel an agency to disclose information that it wished to withhold.  And even then, I only received what I had already obtained independently.  See “Judge Orders CIA to Disclose 1963 Budget,” Secrecy News, April 5, 2005.

The WikiLeaks disclosures, however, represent a qualitatively new factual scenario because they involve not merely the release of “information” but of actual documents, whose authenticity is not in doubt.

Thus, a Zimbabwe political figure said last week that the Zimbabwe officials who were named in the WikiLeaks cables are like “lice” who will be dealt with at an appropriate time.  (“We will deal with ‘WikiLeaks lice’ appropriately – Sibanda,” Newsday [Harare], November 29, 2011.)  These ominous remarks took for granted that the cables are authentic.  Formal confirmation of their authenticity from the U.S. government at this point could hardly aggravate the situation and would be considered superfluous.

Interestingly, the law does admit the possibility — at least outside of the FOIA context — of an unofficial disclosure that is so widespread that any official acknowledgment becomes redundant and moot.

“One may imagine situations in which information has been so widely circulated and is so generally believed to be true, that confirmation by one in a position to know would add nothing to its weight,” the Fourth Circuit wrote in Alfred A. Knopf Inc. v. William Colby (1975).

But the court did not articulate specific criteria for determining when such imaginary situations had become a reality.  And it said that “appraisals of such situations by the judiciary would present a host of problems and obstacles.”

Director of National Intelligence James Clapper has issued a new Intelligence Community Directive on “Congressional Notification” (pdf) that generally encourages “a presumption of notification” to Congress regarding significant intelligence activities.

The November 16 directive, designated ICD 112, elaborates on the intelligence community’s responsibility to keep the congressional oversight committees “fully and currently informed” of U.S. intelligence activities, which is required by the National Security Act.

Among the types of activities that would normally warrant congressional notification, the directive says, are:

– intelligence activities that entail significant risk of exposure, compromise, and loss of human life;

– activities undertaken pursuant to specific direction of the President or the National Security Council, other than covert action (which is subject to a separate reporting requirement);

– a significant unauthorized disclosure of classified intelligence information;

– a conclusion that an intelligence product is the result of foreign deception or denial activity, or otherwise contains major errors in analysis;

– intelligence activities that are believed to be in violation of U.S. law; and so forth.

“Not every intelligence activity warrants written notification,” the directive says.  That determination is “a judgment based on all the facts and circumstances known to the IC element, and on the nature and extent of previous notifications and briefings to Congress on the same matter…. If it is unclear whether a notification is appropriate, IC elements should decide in favor of notification.”

The required notifications “shall contain a concise statement of the pertinent facts, an explanation of the significance of the intelligence activity, and the role of all departments and agencies involved in the intelligence activity.”

The three ongoing prosecutions under the Espionage Act of individuals who allegedly “leaked” classified information to the press are slowly moving forward.

Prosecutors will present their opening brief to an appeals court in the case of Jeffrey A. Sterling, a former CIA officer who is accused of leaking classified information to author James Risen, on January 13, 2012, according to a proposed briefing schedule that was filed yesterday.

The prosecution of Sterling has been suspended in lower court while the government appeals several court rulings that it considers unfavorable.

Specifically, the government wants to overturn the court’s finding that Mr. Risen is protected by a “reporter’s privilege” and cannot be compelled to identify his source.  Prosecutors also want to reverse what they described as an order relating to the Classified Information Procedures Act (CIPA) that the identity of certain government witnesses must be disclosed to the defendant and the jury.  Finally, they are appealing an order that eliminated two potential government witnesses because prosecutors failed to disclose adverse information about the witnesses in a timely manner, a November 9 docketing statement said.

Interestingly, defense attorneys deny that the second issue involving disclosure of witness identities is a CIPA issue that can be appealed at this stage.  They point out that “No order has been entered by the District Court allowing the defendant, over the Government’s objection, to disclose any classified information.  No sanctions have been imposed upon the Government for refusing to allow for the disclosure of any classified information by the defendant in any manner.”  Therefore, “Mr. Sterling does not agree that this appeal raises any issues appealable under CIPA.”

It was also announced yesterday that the case of Army Private Bradley Manning, the suspected WikiLeaks source, will proceed to what is called an Article 32 hearing on December 16 at Fort Meade, Maryland.

“The primary purpose of the Article 32 hearing is to evaluate the relative strengths and weaknesses of the government’s case as well as to provide the defense with an opportunity to obtain pretrial discovery,” according to Private Manning’s attorney, David E. Coombs. “The defense is entitled to call witnesses during the hearing and to also cross examine the government’s witnesses.”

The other ongoing leak prosecution under the Espionage Act is that of former State Department contractor Stephen Kim, who is accused of leaking classified information to Fox News reporter James Rosen.  The prosecution of Mr. Kim is still in an early stage of pre-trial discovery, according to a November 15 status report.

The JASON defense advisory panel held its fall meeting last weekend with briefings on a range of national security topics.  A copy of the program from the closed meeting is posted here.

The JASONs completed at least seven studies this year for various government agencies with titles such as “Solar EMP” and “Domestic Nuclear Surge Operations.”  Secrecy News has requested review of those studies for public release.

The eagerly awaited declassification of vast amounts of historical intelligence satellite imagery that was supposed to occur this year did not take place, and it is unknown when or if it might go forward.

Earlier this year, government officials had all but promised that the declassification and release of miles of satellite imagery film was imminent.

“The NGA [National Geospatial-Intelligence Agency] is anticipating the potential declassification of significant amounts of film-based imagery… in 2011,” the Agency stated in a solicitation that was published in Federal Business Opportunities on February 14, 2011.  (“Large Release of Intelligence Imagery Foreseen,” Secrecy News, February 28, 2011).

“Almost all” of the historical intelligence imagery from the KH-9 satellite (1971-1986) should be declassified within a few months, said Douglas G. Richards of the Pentagon’s Joint Staff at an August 23, 2011 public forum of the National Declassification Center.

But it didn’t happen.  Why not?

“I have no additional information to provide you concerning the status of this declassification effort,” said Mr. Richards by email this week.  “The Joint Staff completed its participation with the action a few months ago, consequently, I don’t know its current status.  Recommend contacting NGA for additional information.”

An NGA spokesman said that the Agency is still weighing the issue and that it will eventually make a recommendation to the Director of National Intelligence on how to proceed.  But it has not yet done so, and there is no particular deadline for it to reach a conclusion on the issue.

“The Director of National Intelligence (DNI) has requested that NGA review the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings for the purpose of making a recommendation to the DNI for possible declassification,” said NGA public release officer Paul R. Polk in a November 10 email message to Prof. Chris Simpson of American University.

“At this time, NGA is conducting an ongoing review of the materials and will make its recommendations to the DNI once the evaluations are completed.”

“If the DNI decides to declassify the subject imagery (or portions thereof), NGA will then need to develop a systematic method for transitioning the holdings over to the National Archives and Records Administration (NARA) for the purpose of making these records available to the general public.”

“In short, NGA cannot at this time advise as to what portions of the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings will be declassified by the DNI, or when they may be available for purchase from NARA,” wrote Mr. Polk in his message to Prof. Simpson.

It is difficult to discern what is going on behind the scenes here.  One official suggested that the public announcements of impending declassification may have had the unintended effect of triggering latent opposition to the move and preventing its implementation.

There is a history of contention over imagery declassification dating back to President Clinton’s 1995 executive order 12951, which declassified imagery from the Corona, Argon and Lanyard intelligence reconnaissance programs.

The Clinton order was a historic development in intelligence policy that was enthusiastically welcomed by scientists, environmentalists and many others at the time.  But it also contained some problematic language that made subsequent declassification action more difficult than it would have been otherwise.  The order stated that intelligence imagery from satellite programs other than Corona, Argon and Lanyard “shall be kept secret… until deemed otherwise by the Director of Central Intelligence.”

Intelligence officials seized upon this language to argue that satellite imagery had been “carved out” of the normal procedures for automatic and systematic declassification.  They insisted that any future release of such imagery was exclusively within the discretion of the DCI (later the DNI), who simply declined to exercise that discretion.

A compelling counterargument can be made that this Clinton order language (or this interpretation of the language) was superseded by later executive orders, including EO 13526, which stated that “no information may be excluded from declassification… based solely on the type of document or record in which it is found” (sect. 3.1g).

But although the debate might have been won in theory, it has been effectively lost in practice.  Contrary to prior official statements, there will be no further declassification of historical satellite imagery in 2011, and no one can say when it might resume.

The Obama Administration’s uncompromising approach to punishing “leaks” of classified information has been widely noted.  But its handling of pre-publication review disputes with former intelligence agency employees who seek to publish their work has been no less combative.

Government prosecutors are preparing to confiscate proceeds from the unauthorized publication of “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” by the pseudonymous Ishmael Jones, a former CIA officer.  After Jones published the book without the permission of CIA reviewers, the government said that he was in violation of the secrecy agreement he had signed.

Jones argued that he had not published any classified information and that CIA had breached the agreement first by failing to review his manuscript in good faith.  But his efforts were unavailing, and a court concurred with the CIA.

“All discovery demands heretofore served by defendant [Jones] are quashed, and defendant is prohibited from serving other discovery demands,” ruled Magistrate Judge Thomas Rawls Jones, Jr. in favor of the CIA on November 4.

If Jones believed that CIA was wrongly obstructing publication of his work, prosecutors said, what he should have done “was to file suit in U.S. District Court challenging the Agency’s decision, in order to obtain permission to publish the book.”

That sounds reasonable enough.  But in another case where an author did exactly that, government attorneys are making it all but impossible for the author to present his argument to a judge.

Anthony Shaffer, author of the Afghanistan war memoir “Operation Dark Heart,” said that intelligence agencies had unlawfully violated his First Amendment rights by censoring his manuscript.  But the government wants to limit his ability to present his challenge.

For one thing, Shaffer has been denied access to the original text of his own book.  The text contains classified information, the government says, and he no longer holds a security clearance.  So he is out of luck.  Nor has the government allowed him use of a secure computer so that he could cite contested portions of the text and dispute their classification in pleadings submitted to the court.

Instead, the government argues that the Court should resolve the disagreement based on the materials provided by the government, along with any unclassified materials that may be submitted by the plaintiff [Mr. Shaffer].  Shaffer does not need his manuscript or a secure computer, since “it is improper and unnecessary for Plaintiff to submit classified information to the Court at this time.”  (Joint Status Report, July 22, 2011).

Even unclassified materials that Mr. Shaffer may wish to submit in a declaration to the court — in order to demonstrate that the supposedly classified information in his original text is already public — may need to be sealed from public disclosure, the government said on October 28.  That is because “the association of that open source information with the book’s redactions may make the [author's] declaration classified.”

All of this is quite absurd, said Mark S. Zaid, Mr. Shaffer’s attorney, in a reply filed last week.

“There is no other way for Shaffer to identify and challenge any of the specific text purported to be classified, much less present an argument to the Court, if he does not have access to the original copy of his book,” Mr. Zaid wrote.

The upshot is that under current policy neither Mr. Jones, who defied the rules, nor Mr. Shaffer, who has attempted to follow them, is permitted to gain a meaningful independent review of government restrictions on the information he sought to publish.

There is an additional layer of absurdity in Mr. Shaffer’s case, since the unredacted text of his book has been publicly released in limited numbers, and portions of it are even available online.  (“Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010).

The U.S. intelligence community needs an organization that can assess the impacts of climate change on U.S. national security interests in an open and collaborative manner, according to a new report from the Defense Science Board (DSB).

The Director of National Intelligence should establish a new intelligence group “to concentrate on the effects of climate change on political and economic developments and their implications for U.S. national security,” said the DSB report on “Trends and Implications of Climate Change for National and International Security” (large pdf).

The Central Intelligence Agency already has a Center on Climate Change and National Security.  So why would the Intelligence Community need an entirely new organization to address the exact same set of issues?

One reason is that the role envisioned for the new organization is inconsistent with the practices of the CIA Center.  So, for example, the new intelligence group would be expected to pursue cooperative relationships with others inside and outside of the U.S. government.  It would also “report most of its products broadly within government and non-government communities,” the DSB report said.

But the CIA Center, by unspoken contrast, does not report any of its climate change products broadly or allow public access to them.  (“At CIA, Climate Change is a Secret,” Secrecy News, September 22, 2011).

The CIA’s unyielding approach to classification effectively negates the ability of its Center on Climate Change to interact with non-governmental organizations and researchers on an unclassified basis.  Since, as the DSB noted, much of the relevant expertise on climate change lies “outside the government [in] universities, the private sector, and NGOs,” the CIA’s blanket secrecy policy is a potentially disabling condition.

In fact, the DSB report said, the secretive approach favored by CIA is actually counterproductive.

“The most effective way to tackle understanding [climate change] may be to treat it, for the most part, as an open question, transparent to all engaged in its study,” the DSB report said.  “Compartmentalizing climate change impact research can only hinder progress.”

There is “little likelihood” that the Central Intelligence Agency will be able to produce any records documenting the CIA’s implementation of the Fundamental Classification Guidance Review that each classifying agency is required to conduct, the Agency said last week.

The Fundamental Classification Guidance Review (FCGR) was ordered by President Obama in his December 2009 executive order 13526 (section 1.9) as a systematic effort to eliminate obsolete or unnecessary classification requirements.  It is the Obama Administration’s primary response to the problem of over-classification, and it has already achieved some limited results at the Department of Defense and elsewhere.

But it can’t possibly work if agencies don’t implement it.  And so far there is no sign of any such implementation at CIA, despite the fact that compliance is not optional.

In response to FOIA requests over the past year for records on the CIA’s progress in conducting its fundamental review, the CIA said it still had no records on the FCGR that are subject to the FOIA requests.

In an earlier response, “we informed you that a search was conducted and no records responsive to your request were located,” wrote Susan Viscuso, CIA Information and Privacy Coordinator, on October 26.  “Although there is little likelihood that an updated search would produce different results, we will be glad to do so.”

Ms. Viscuso’s letter appeared to hint that responsive files might be contained in CIA “operational files” that are exempt from search and review under the CIA Information Act.  But such a claim would be substantively and legally spurious, especially since responsive records on the FCGR would have been “disseminated” outside of their source files (e.g. to the Information Security Oversight Office), which would nullify their exemption from search and review.

Meanwhile, another intelligence agency, the National Reconnaissance Office (NRO), proved more responsive.  The NRO said in a report on the FCGR (pdf) that was released last week under the FOIA that it had scheduled all of its classification guides for a fundamental review, as required.  The NRO, which is responsible for U.S. intelligence satellites, also said it was preparing an integrated classification guide that would be “more agile, timely, consistent, uniform, and flexible in providing classification guidance and principles at the lowest appropriate classification level.”