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Issue Number 58
May 1996

Declassified But Still Secret

Vast quantities of declassified government documents held by contractors may remain inaccessible to the public because of a little-noticed provision that requires a separate, time-consuming review of such documents prior to their disclosure.

This problem became a matter of practical concern lately when a University of Hawaii scientist unsuccessfully sought to publish some declassified U.S. Navy data in a scientific paper.

Dr. Daniel A. Walker of the Hawaii Institute of Geophysics and Planetology, a Navy contractor, had conceived an experiment involving the transmission of acoustic waves under water that would make it possible to "determine whether global warming has, in fact, occurred." In order to proceed, Dr. Walker needed to publish the precise locations of four underwater acoustic sensor arrays ("hydrophones") installed in the 1950s near Wake Island, Midway, Oahu, and Enewetak.

These locations were specifically declassified in April of last year, and yet the Navy has held up their publication by Dr. Walker for at least nine months.

The immediate obstacle is a provision of the National Industrial Security Program Operating Manual (NISPOM) which dictates that "Information that has been declassified is not automatically authorized for public disclosure. Contractors shall request approval for public disclosure of 'declassified' information, in accordance with the procedures of this paragraph." [section 5-511(d)].

James Wingo, the facility security officer at the University of Hawaii whose job it is to secure permission from the Navy to disclose the declassified data, told S&GB that the Navy had failed to respond to his repeated requests for authorization to publish Dr. Walker's paper.

Because this is a problem that is bound to recur with increasing frequency, and since multiple reviews-- one for declassification and one for disclosure-- make little sense from an information management perspective, S&GB has begun an effort to amend the NISPOM.

We turned to Steven Garfinkel, director of the Information Security Oversight Office and chairman of half a dozen other security policy entities, and outlined a proposal to ease the kind of bottleneck that is now holding up Dr. Walker's work on global warming. We suggested a range of possibilities that would either eliminate disclosure review altogether, or limit it to certain well-defined types of information, or else specify certain types of information that do not need a second review at all.

"It's a non-starter," Mr. Garfinkel said about the proposal. "Contractors like having agencies review their material for disclosure" since it relieves them of any responsibility. And even though the information has already been declassified, "You start getting into all kinds of (b)(4) exemption [i.e. proprietary] material," he said. As for the extended delay in the University of Hawaii case, "It's just like the review of unclassified material" under the Freedom of Information Act, which often takes months or years to complete.

Mr. Garfinkel said he would permit S&GB to introduce the proposal at a meeting of the National Industrial Security Program Policy Advisory Committee later this year. But he predicted it would be unanimously opposed by the contractor representatives on the Committee, and "I will abstain."

On the other hand, Mr. Wingo, the University of Hawaii security officer, wrote that "I personally agree with your recommended amendment to the NISPOM."

A Guide to Intelligence Contractors

The great expanse of the intelligence industrial complex is laid bare in the Intelligence Contractor Guide, a new FAS on-line publication.

Intelligence contractors constitute a significant barrier to reform of intelligence policy and practice, particularly in technical intelligence programs. There are "many examples where contractors have conveniently made themselves indispensable, at the expense of the government," according to the recent House Intelligence Committee IC21 Staff Study (p.131).

Contractors also skew the oversight process since they have unfettered access to lobby for secret programs that potential critics are not even supposed to know about.

In late April, the Department of Defense released its official listing of the top 100 defense contractors. But until now, no comparable official or unofficial list of intelligence contractors has been available to the public.

The FAS Intelligence Contractor Guide, a survey of over 150 companies researched and compiled by John Pike, is available at http://www.fas.org/irp/contract/.

Anyone concerned with intelligence contracting will find this a useful resource. "I believe your contractor listing is valuable to the corporate intelligence community at large," one intelligence contractor CEO wrote to Mr. Pike on May 4. "I would like to have my company posted there if you agree." Done and done.

Several journalistic enterprises have already made use of the contractor guide. Robert Dreyfuss, writing in The American Prospect http://epn.org/prospect/25/25drey.html, noted the extensive influence of intelligence contractors on the legislative process.

"Colorado's Stealth Economy," a magnificent sixteen page story in the Denver Business Journal (April 5-11, 1996), examined the effects of black budget spending in Colorado. But the heavy concentration of contractors in the national capital region, and their political and economic impacts, have for the most part gone unremarked.

"Classifying contractual and financial data within a corporation, which in today's environment should rarely be classified, inhibits accurate forecasting, limits oversight, and could eventually lead to an erosion in shareholder value," wrote J.S. Gordon, President of Lockheed Martin Skunk Works, in a thoughtful presentation to the Moynihan Secrecy Commission last year. His critique is available at http://www.fas.org/sgp/skunkworks.html.

Intelligence and Law Enforcement

Several news organizations (CNN, Time, New York Times) reported in early April that surveillance satellites had been used in the capture of the UNABOMB suspect. This would be a startling deviation from established policy and practice if it were true, which it is almost certainly not.

By law, intelligence agencies cannot collect intelligence on the domestic activities of U.S. citizens and there are no civilian spy satellites.

What is true is that a major realignment between intelligence and law enforcement is underway. A Joint Intelligence Community Law Enforcement (JICLE) Working Group has been meeting furiously for the last year, but there has been a disturbing absence of leaks to reveal exactly what it is up to.

This activity follows from a May 1995 Report to the DCI and the Attorney General prepared by the Joint Task Force on Intelligence and Law Enforcement. A copy is available from S&GB for $5 or a declassified document that has not been reviewed for disclosure.

Improving Intelligence Dissemination

Even the highest quality intelligence would be useless if no one were cleared to receive it. A new intelligence directive issued by DCI Deutch will relax some of the more indiscriminate restrictions on access to intelligence.

The directive "establishes a new policy of 'writing for the consumer,' which means preparing intelligence reports and products at the collateral, uncaveated level to the greatest extent possible, and using tear line reporting, portion marking, or other means to facilitate the segregation and dissemination of releasable information."

The "consumer" here may include authorized foreign governments but not, of course, the U.S. public. The new policy, however, may ease the task of ultimately declassifying intelligence documents.

The new directive-- DCI Directive 1/7-- was transmitted to all heads of intelligence agencies on April 16. A copy was obtained by S&GB a few days later. It is available at http://www.fas.org/irp/offdocs/dcid17m.htm.

Intelligence Budget Non-Disclosure

In lieu of post-cold war intelligence reform, the White House announced several proposals for administrative changes in U.S. intelligence on April 23, including a decision to "authorize Congress to make public the total appropriation for intelligence." Significantly, the President did not actually declassify the budget number, which remains classified today, but simply shifted the decision to Congress.

The proposal was quickly endorsed by Sen. Arlen Specter, the chairman of the Senate Intelligence Committee, who said it was "the minimum amount of openness" that was needed. The Committee markup of the 1997 intelligence authorization bill includes a provision that would require disclosure of the total intelligence budget in next year's budget submission. Rep. John Conyers has introduced similar legislation in the House.

But at a Senate Intelligence Committee hearing on April 24, Senator Jon Kyl attacked the notion of budget disclosure, insisting that "The American public doesn't want to know that number. It is being requested by those who are opponents of our intelligence community. In fact, if there is a problem in this country in terms of the American public's perception of our intelligence community, it is that we are giving out too much information," Senator Kyl said.

Back on Earth, a majority of the American public believes that the government classifies too much information, according to a 1994 Defense Department survey [see S&GB 48]. It could not be determined whether the majority of Americans are also "opponents of our intelligence community."

For his part, DCI Deutch defended disclosure of the budget total on grounds that it would "bolster public confidence in the intelligence community." But this is unlikely to be true, and totally beside the point.

The point is that the government lacks the legal authority to withhold intelligence information which the DCI has determined would not endanger "sources and methods" or otherwise damage national security. The impact on "public confidence," whether positive or negative or nil, is not a legitimate consideration.

Therefore, the continued classification of the intelligence budget total today is a violation of law (the FOIA) and executive order. Under Executive Order 12958, section 5.7(b), the DCI could even be subject to sanctions for continuing to classify the budget total without a valid national security justification.

Asked what would happen if Congress declined to act on the President's "authorization" to publish the budget total, DCI Deutch said that in that case he "would advise the President not to disclose" the figure.

In the meantime, a breakdown of the current budgets for all intelligence agencies, accurate to within ten percent, is available to opponents and supporters of U.S. intelligence at http://www.fas.org/irp/agency.html.

And More

* The IC21 Staff Study prepared by the staff of the House Intelligence Committee and released in April is easily the best of the recent official studies on the future of intelligence [S&GB 56]. Despite a variety of omissions and arguable judgments, it is the only study that provides a reason to reconsider one's prejudices. Anyone with more than a passing interest in intelligence will need to read the 350 page report, which contains many insightful analyses and authoritative revelations. Limited copies are available from the House Intelligence Committee. The report will eventually be posted on the House website, and on the FAS Intelligence Reform homepage.

* A new report on "The Future of US Intelligence" argues for robust covert action and counterintelligence capabilities. A copy is available for $15 from the Consortium for the Study of Intelligence, 1730 Rhode Island Ave NW, Suite 500, Washington, DC 20036.

* The secretive Foreign Intelligence Surveillance Court had its busiest year ever in 1995, approving a record 697 applications for domestic electronic surveillance and (for the first time) physical search, according to an April 16 Report to Congress obtained by S&GB. As usual, no applications were denied. The Court was profiled most recently in Legal Times, 2/19/96.

* "I believe that the $20 million Newt wanted set aside for 'destabilizing' Iran [S&GB 55] has been sent to Mattel, Inc.," a mischievous State Department official suggested in an email message to FAS. He cited an Iranian news story complaining that "Barbie dolls in all shapes have invaded toy shop windows in Tehran and other cities, sparking a wave of alarm." The magazine Sobh said that their "omnipresence on Iranian markets is a marked sign of the growing invasion and influence of western culture. The unwholesome flexibility of these dolls, their destructive beauty and their semi-nudity have an effect on the minds and morality of young children."

* Last year, Cheyenne Mountain Air Force Station delivered 15 tons of shredded classified documents to the Air Force Academy Equestrian Center, where the material was used as bedding for about 100 horses at the Academy stables. (The Space Observer, 4/4/96). When the stalls are cleaned, the mixture of shredded classified papers and horse manure is taken to compost pits. "Everyone's been real pleased with it," said Billy Jack Barrett, the stable manager. "Frankly, we could use even more."

Secrecy & Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists, 307 Massachusetts Avenue NE, Washington, DC 20002. The FAS Project on Government Secrecy is supported by grants from the Rockefeller Family Fund and the CS Fund. This publication may be freely reproduced.

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