Secrecy News Blog: http://www.fas.org/blog/secrecy/
U.S. INTELLIGENCE AGENCIES RETHINK CLASSIFICATION POLICY
U.S. intelligence agencies have embarked upon a process to develop a uniform classification policy and a single classification guide that could be used by the entire U.S. intelligence community, according to a newly obtained report from the Office of the Director of National Intelligence.
The way that intelligence agencies classify information is not only frustrating to outsiders, as it is intended to be, but it has also impeded interagency cooperation and degraded agency performance.
In order to promote improved information sharing and intelligence community integration, the ODNI undertook a review of classification policies as a prelude towards establishing a new Intelligence Community Classification Guide that would replace numerous individual agency classification policy guides.
The initial ODNI review, completed in January 2008, identified fundamental defects in current intelligence classification policy.
"The definitions of 'national security' and what constitutes 'intelligence' -- and thus what must be classified -- are unclear," the review team found.
"Many interpretations exist concerning what constitutes harm or the degree of harm that might result from improper disclosure of the information, often leading to inconsistent or contradictory guidelines from different agencies."
"There appears to be no common understanding of classification levels among the classification guides reviewed by the team, nor any consistent guidance as to what constitutes 'damage,' 'serious damage,' or 'exceptionally grave damage' to national security... There is wide variance in application of classification levels."
Among the recommendations presented in the initial review were that original classification authorities should specify clearly the basis for classifying information, e.g. whether the sensitivity derives from the content of the information, or the source of the information, or the method by which it is analyzed, the date or location it was acquired, etc. Current policy requires that the classifier be "able" to describe the basis for classification but not that he or she in fact do so.
A copy of the unreleased ODNI report on classification policy was obtained by Secrecy News.
See "Intelligence Community Classification Guidance: Findings and Recommendations Report," January 2008:
From Secrecy News' perspective, the initial ODNI review falls short in two respects.
First, it assumes that consistency in classification is intrinsically desirable and should therefore be imposed by a community-wide classification guide. But consistency is at most a secondary virtue. When a classification policy is poorly justified, it is preferable for it to be inconsistently applied, as in the case of intelligence budget secrecy (see below).
Second, the review does not touch upon what is probably the single most necessary change in intelligence classification policy, namely the need to narrow the definition of intelligence sources and methods that require protection. Almost anything can serve as an intelligence source or method, including a subscription to the daily newspaper. But not every intelligence source or method requires or deserves classification or other protection from disclosure.
STATE DEPARTMENT REVEALS 2009 INTELLIGENCE BUDGET REQUEST
The U.S. State Department's Bureau of Intelligence and Research (INR) is among the most highly regarded members of the U.S. Intelligence Community. Not coincidentally, it is also among the most open and accessible.
In particular, it is one of the only Intelligence Community organizations that regularly publishes its budget. (The FBI also discloses much of its intelligence spending.)
Thus, the recent 2009 State Department budget justification book projects a 2009 INR budget of $59.8 million for a staff of 313 persons. The ten-page 2009 budget justification for INR may be found here:
This would be unremarkable except for the fact that INR's budget disclosure policy deviates from the norm of U.S. intelligence classification policy, in which most budget information is automatically classified. Even some intelligence organizations that are smaller and less influential than INR insist on classifying their budgets.
For more than a decade, the Department of Energy Office of Intelligence published its detailed budget each year. But under pressure from CIA (so I was told), DOE began withholding its intelligence budget information in 2004. The last reported figure for DOE intelligence was $39.8 million in FY 2004 (Secrecy News, 02/07/05).
If consistency in classification policy were to prevail throughout the U.S. intelligence community, as the Director of National Intelligence has recommended, then State Department intelligence might be expected to follow DOE intelligence into pointless, unnecessary secrecy.
CORRECTION ON COLLAPSE OF BEE COLONIES
A Science Daily story on the causes of the declining honey bee population that was cited yesterday in Secrecy News was from April 2007, not April 2008. Though interesting, it was not news.
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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SENATE MULLS CHANGES IN INTELLIGENCE OVERSIGHT
The Senate Intelligence Committee has recommended creation of a new Senate Appropriations Subcommittee on Intelligence to prepare the annual intelligence budget.
"The [proposed] Subcommittee on Intelligence shall appropriate all funds for the National Intelligence Program (NIP) (as opposed to the current situation where appropriations for the NIP are fragmented among several subcommittees within the Appropriations Committee)," according to the March 6, 2008 proposal sent by fourteen members of the Intelligence Committee to the Senate Majority Leader.
The proposed Subcommittee, on which members of the Intelligence Committee would be heavily represented, would increase the Committee's influence and leverage over executive branch intelligence agencies. It would also probably imply and require continuing disclosure of the annual budget for the National Intelligence Program.
The proposal was developed in response to recommendations of the 9/11 Commission and 2007 legislation implementing those recommendations. It has already won significant bipartisan support outside of the Intelligence Committee.
"The options for additional reform contained in the SSCI's letter represent a thoughtful response to the 9/11 Commission's recommendations," wrote Senators Joseph Lieberman and Susan Collins of the Senate Homeland Security and Governmental Affairs Committee on March 13.
But the proposal is opposed by the leadership of the Senate Appropriations Committee.
"We do not understand how the creation of an Intelligence [Appropriations] Subcommittee, led by members of the Intelligence Committee, would do anything but minimize the free exchange of ideas and hamper the debate which exists in the current system," wrote Senators Robert Byrd and Thad Cochran, the Chair and Ranking Member of the Appropriations Committee.
"We strongly believe that consolidating authority over intelligence in a smaller group of Senators is precisely the wrong way to improve the Senate's oversight of intelligence," they wrote in an April 5 letter to the Senate leadership.
It may be argued that the greatest defect in Senate oversight of intelligence is not a limitation of jurisdiction or budgetary influence, but of principle and will. Overseers have failed in recent years to challenge the Administration's implicit view that the ends justify the means, and they have acquiesced in momentous intelligence policy deviations, which now apparently include officially-sanctioned torture (though that word is not used) and extra-legal surveillance of domestic communications. Americans who are repulsed by such developments lack effective representation in the Senate oversight process.
IRAQ WAR CASUALTIES, AND MORE FROM CRS
Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following.
"Tibet: Problems, Prospects, and U.S. Policy," April 10, 2008:
"Judicial Review of Removal Orders," April 10, 2008:
"Avatars, Virtual Reality Technology, and the U.S. Military: Emerging Policy Issues," April 9, 2008:
"International Violence Against Women: U.S. Response and Policy Issues," March 31, 2008:
"Awards of Attorneys' Fees by Federal Courts and Federal Agencies," updated March 26, 2008:
"The Executive Office of the President: An Historical Overview," updated March 17, 2008:
"Freedom of Speech and Press: Exceptions to the First Amendment," updated March 17, 2008:
"United States Military Casualty Statistics: Operation Iraqi Freedom and Operation Enduring Freedom," updated March 18, 2008:
"Iraqi Civilian Deaths Estimates," udpated March 13, 2008:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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AIPAC DEFENDANTS SAY TESTIMONY FROM ISOO'S LEONARD IS CRUCIAL
Testimony from classification expert J. William Leonard, the former director of the Information Security Oversight Office, will "seriously undercut the government's case" against two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with unlawful receipt and transmission of classified information, defense attorneys argued in a dramatic new pleading urging that he be allowed to testify.
Prosecutors oppose Mr. Leonard's testimony, saying it is precluded by his prior contacts with the prosecution.
The closely-watched AIPAC case is the first time that the government has ever used the espionage statutes to prosecute private citizens -- pro-Israel lobbyists in this case -- for receiving classified information to which they were not entitled and then communicating it to others.
"Mr. Leonard's expert testimony is critical to the defense," the defense pleading stated. "As the government's former 'Classification Czar,' he has unsurpassed expertise in the issues involved in this case, and his insights into how and why the government classifies, protects, and discloses sensitive information squarely refute the prosecution's theory of the case."
The government has opposed Mr. Leonard's testimony (Secrecy News, April 7), citing a meeting he had in 2006 with prosecutors regarding the case while he was still a government employee and was being considered as a witness for the prosecution.
("My impression from the interview was that they did not like what I had to say, especially about over-classification, and decided not to use me as an expert," Mr. Leonard stated in an affidavit.)
For him to now testify as a defense witness, prosecutors argued, would be a violation of the Ethics in Government Act and, they insinuated, could even put him at risk of criminal prosecution.
To resolve any lingering legal uncertainty, the defense asked the court to issue an order authorizing Mr. Leonard to testify.
"Mr. Leonard has carefully examined the classified information at issue in this case," the defense filing indicated. If and when he is permitted to appear, Mr. Leonard will testify "that information disclosed in this case could not damage national security, was not closely held, and was not demonstrably classified."
Further, Mr. Leonard will testify "that high level government officials frequently disclose information contained in classified documents for the purpose of advancing national security interests instead of harming them," and that "the defendants reasonably could have believed that their conduct was appropriate."
"Given Mr. Leonard's unsurpassed expertise, his testimony is likely to impact the outcome of the trial," the defense said.
However, defendants need an order from the court "to ensure that Mr. Leonard can testify safely, particularly in light of the government's shot across the bow regarding Mr. Leonard's potential criminal liability [if he testifies for the defense]."
See the Defendants' Reply to the Government's Opposition to the Expert Witness Testimony of J. William Leonard, April 11, 2008:
Among the potential expert witnesses for the prosecution is William McNair, a former Information Review Officer at the Central Intelligence Agency known for his conservative approach to declassification and disclosure.
A pre-trial appeal of several district court rulings in the AIPAC case has been filed by the government, as well as a cross-appeal filed by the defense. This month's anticipated trial was postponed and no new trial date has been set.
MCCAIN ADMITS POSSIBILITY OF GOOD "LEAKS"
Some unauthorized disclosures of classified information in the press can serve a constructive purpose, Sen. John McCain allowed. And so he expressed support for a pending press "shield" law that would increase reporters' legal protection against compulsory disclosure of their confidential sources.
"Despite concerns I have about the legislation, I have narrowly decided to support it," he told the Associated Press Annual Meeting on April 14.
The bill, the Free Flow of Information Act, is co-sponsored by Sen. Barack Obama and has also been endorsed by Sen. Hillary Clinton. But Sen. McCain's support is noteworthy because it places him directly at odds with the Bush Administration, which strongly opposes the measure.
Even more interesting is the way in which McCain framed the issue.
"The shield law is, frankly, a license to do harm, perhaps serious harm. But it is also a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction."
"I know that the press that disclosed security secrets that should have remained so also revealed the disgrace of Abu Ghraib."
In other words, according to Sen. McCain, there are bad leaks of classified information and there are good leaks of classified information. (The leaked Army investigative report on Abu Ghraib was classified Secret).
This comparatively nuanced view of unauthorized disclosures is a significant departure from the Bush Administration's categorical view that any disclosure of classified information is unacceptable. And it provides some common ground for considering both disclosure and voluntary non-disclosure of classified information by the press.
The text of Sen. McCain's April 14 speech is here:
The Washington Post editorialized today in favor of the press shield bill, which is also supported by press advocacy organizations such as the Reporters Committee for Freedom of the Press. Jack Shafer in Slate.com demurred.
NIEMAN REPORTS: 21ST CENTURY MUCKRAKERS
The latest edition of Nieman Reports, the quarterly magazine of the Nieman Foundation for Journalism at Harvard, is devoted to the subject of "21st Century Muckrakers: Who Are They? How Do They Do Their Work?"
It's a meaty and highly readable issue. I contributed a piece on "Secrecy vs. Citizenship." Ted Gup, author of the recent book "Nation of Secrets," has another piece on "Investigative Reporting About Secrecy." Walter Pincus of the Washington Post wrote "Secrets and the Press," a review of the Gup book. And there's a lot more.
See the latest Nieman Reports, edited by Melissa Ludtke, here:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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STAGE SET FOR TRANSFER OF CIA RECORDS TO NATIONAL ARCHIVES
A memorandum of understanding signed this month by the Director of the Central Intelligence Agency and the National Archivist is expected to enable the transfer of many permanently valuable historical CIA records that are 50 years old or older to the custody of the National Archives (NARA), officials of both agencies said today.
Up to now, "we haven't had a framework" for such transfers, said Joe Lambert, the new CIA chief information officer. And so, with few exceptions, "we haven't transferred anything [to the Archives] in the past." (Exceptions include certain CIA records related to the JFK assassination, Nazi war crimes, and a few other topics, as well as translations of foreign news reports.)
The new memorandum "lays the groundwork for routine transfer of CIA records" to the National Archives once they become 50 years old, said Assistant Archivist Michael J. Kurtz. "This will institutionalize the process."
The memorandum itself does not seem very promising. It imposes a number of binding requirements on NARA officials, including referral to CIA of any request for records that have not already been approved for public release. No binding requirements are imposed on CIA, beyond an open-ended commitment to "review" any such requests.
But Allen Weinstein, the Archivist of the United States, said the memorandum would pave the way for regular transfers of CIA records to the Archives, and would ultimately result in improved public access to those records.
"Access is a multi-step process," said Gary M. Stern, General Counsel at the National Archives. "Getting the records into the Archives is the first step."
Having "listened carefully to the words and the music, I was convinced that this [agreement] would serve the public interest," said Dr. Weinstein. "I wouldn't have signed it otherwise."
The memorandum's words, at least, can be found here:
CIA is expected to provide to NARA an index of records subject to transfer in the next few weeks, with actual transfers to follow sometime thereafter.
A March 2000 National Archives evaluation of "Records Management in the Central Intelligence Agency" provided some detailed insight into the subject.
At that time, NARA held that "CIA retention of permanent files for 50 years is no longer appropriate" and should be reduced to something closer to 30 years. But by default and inaction, 50 year retention of records by CIA has now become the goal that the agencies are striving for.
A NEW ISOO DIRECTOR, AND VARIOUS ITEMS
William J. Bosanko was formally named this week as the fourth director of the Information Security Oversight Offfice, the executive branch agency that is responsible for oversight of national security classification and declassification policy government-wide. A ten-year veteran of the ISOO staff, Mr. Bosanko shares an understanding of the ideals and the realities of classification as well as the scruple and the responsiveness that made his predecessors such remarkable public servants.
"When I am president, the era of Bush/Cheney secrecy will be over," said Sen. Hillary Clinton in a speech to the Newspaper Association of America on April 15. "I will empower the federal government to operate from a presumption of openness, not secrecy... I will direct my administration to prevent needless classification of information that ought to be shared with the public."
Sen. John Cornyn (R-TX) this week introduced a new bill to increase transparency in government agency expenditures, to provide online public tracking of legislative earmarks, and to require the IRS to provide taxpayers with statements of total taxes paid and projected. "This latest effort will provide taxpayers unprecedented information about how their money is spent, and how their taxes are paid. Increasing transparency in government spending is essential for accountability and fiscal responsibility."
The CIA today published for public comment a proposed rule modifying its Freedom of Information Act procedures. "The Agency proposes to revise its FOIA regulations to more clearly reflect the current CIA organizational structure, record system configuration, and FOIA policies and practices and to eliminate ambiguous, redundant and obsolete regulatory provisions."
WAR CRIMES AND PERSIAN GULF WEATHER
Prodded by a request from the Federation of American Scientists, the U.S. Marine Corps recently restored online public access to many of its doctrinal publications, Federal Computer Week reported on March 27.
One of those Marine Corps documents addresses war crimes, describing prohibited actions and the need to prevent them.
"While we Marines fight swiftly and aggressively, we also conduct our military operations with respect toward both the liberated people and the vanquished foe."
"Marines do not harm enemy soldiers who surrender. Marines do not torture or kill enemy prisoners of war or detainees. Marines collect and care for the wounded, whether friend or foe."
See "War Crimes," Marine Corps Reference Publication 4-11.8B, 6 September 2005:
Another document is a 1990 analysis of weather patterns in the Persian Gulf.
"While some of the technical information in this manual is of use mainly to meteorologists, much of the information is invaluable to anyone who wishes to predict the consequences of changes in the season or weather on military operations."
See "The Persian Gulf Region: A Climatological Study," Fleet Marine Force Reference Publication 0-54, 19 October 1990:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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NATIONAL SECURITY AND THE PRESIDENTIAL TRANSITION
"The 2008-2009 election marks the first presidential transition in the post-9/11 era, and is of concern to many national security observers," a new report from the Congressional Research Service says.
"While changes in administration during U.S. involvement in national security related activities are not unique to the 2008-2009 election, many observers suggest that the current security climate and recent acts of terrorism by individuals wishing to influence national elections and change foreign policies portend a time of increased risk to the current presidential transition period."
"This report discusses historical national-security related presidential transition activities, provides a representative sampling of national security issues the next administration may encounter, and offers considerations and options relevant to each of the five phases of the presidential transition period."
See "2008-2009 Presidential Transition: National Security Considerations and Options," April 21, 2008:
Meanwhile, "A growing community of interest, including Members of Congress, senior officials in the executive branch, and think-tank analysts, is calling for a reexamination of how well the U.S. government, including both the executive branch and Congress, is organized to apply all instruments of national power to national security activities," according to another new CRS report.
"The organizations and procedures used today to formulate strategy, support presidential decision-making, plan and execute missions, and budget for those activities are based on a framework established just after World War II."
"The 'outdated bureaucratic superstructure' of the 20th century is an inadequate basis for protecting the nation from 21st century security challenges, critics contend, and the system itself, or alternatively, some of its key components, requires revision."
The new CRS report is intended "to help frame the emerging debates by taking note of the leading advocates for change, highlighting identified shortcomings in key elements of the current system, and describing categories of emerging proposals for change."
See "Organizing the U.S. Government for National Security: Overview of the Interagency Reform Debates," April 18, 2008:
The Congressional Research Service, acting at the direction of Congress, does not make its publications directly available to the public.
A PRIMER ON SCIENCE POLICY, AND MORE FROM CRS
The basic structures and procedures of science and technology policymaking are presented in detail in a new report from the Congressional Research Service. See "Science and Technology Policymaking: A Primer," April 18, 2008:
Other noteworthy new reports from the Congressional Research Service that have not been made readily available online include the following.
"Information Security and Data Breach Notification Safeguards," updated April 3, 2008:
"Congressional Oversight of Intelligence: Current Structure and Alternatives," updated April 1, 2008:
"Data Mining and Homeland Security: An Overview," updated April 3, 2008:
"Security Implications of Taiwan's Presidential Election of March 2008," April 4, 2008:
NATIONAL SECURITY LETTERS AND SECRET LAW
The implications of the expanded use of "national security letters" by the FBI and other agencies to compel disclosure of business record information will be explored in a hearing tomorrow before the Senate Judiciary Committee.
For an introduction to the subject see "National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments," Congressional Research Service, updated March 28, 2008:
Next week on April 30, Sen. Russ Feingold will chair a Senate Judiciary subcommittee hearing on "Secret Law and the Threat to Democratic and Accountable Government":
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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RESOURCES ON THE ISRAELI STRIKE IN SYRIA
The September 6, 2007 Israeli strike against a suspected Syrian nuclear facility remains a puzzle despite the confident assertion by U.S. intelligence officials last week that the target was a Syrian reactor constructed for the production of plutonium with the assistance of North Korea.
An extensive, frequently updated collection of open source materials on the subject -- including foreign and domestic news reports, satellite imagery and analysis -- has been compiled by Allen Thomson in "A Sourcebook on the Israeli Strike in Syria, 6 September 2007" (currently 812 pages in a 15 MB PDF file):
An updated bibliography of Syrian nuclear science research, from reactor safety to laser isotope separation, was prepared by researcher Mark Gorwitz. See "Syrian Nuclear Science Bibliography: Open Literature Citations," April 2008:
A list of all cooperative agreements between the International Atomic Energy Agency and the Atomic Energy Commission of Syria, also compiled by Mr. Gorwitz, is here:
The web site of the Atomic Energy Commission of Syria is here:
The next ambassador from Bahrain to the United States will be a Jewish woman named Huda Ezra Ebrahim Nonoo, according to a report in GulfNews.com last week.
"Huda is Bahrain's nominee for the post and this is of course very good news for Bahrain's deep-rooted values of tolerance and openness," said Faisal Fouladh of the Shura Council, the upper house of Bahrain's legislature. The Shura Council currently includes 11 women, including one Christian.
See "Bahrain set to name Jewish woman envoy" by Habib Toumi, GulfNews, April 25:
Alone among Muslim countries, Bahrain and Bosnia have Jewish diplomats in senior positions, said Stephen S. Schwartz of the Center for Islamic Pluralism (www.islamicpluralism.org).
The Senate Judiciary Committee will hold a hearing April 30 on the subject of "secret law."
"It's been nearly forty years since Professor Kenneth Davis stated in his seminal treatise on administrative law that 'Secret law is an abomination'," according to a Committee announcement.
"The upcoming hearing will examine the extent to which this abomination is gradually becoming a common state of affairs, and its effect on our democracy."
The hearing will be chaired by Sen. Russ Feingold. I will be testifying, along with J. William Leonard, the former director of the Information Security Oversight Office, and a diverse group of others. See "Secret Law and the Threat to Democratic and Accountable Government":
PRESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE, AND MORE FROM CRS
Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following.
"Africa Command: U.S. Strategic Interests and the Role of the U.S. Military in Africa," updated March 10, 2008:
"High Altitude Electromagnetic Pulse (HEMP) and High Power Microwave (HPM) Devices: Threat Assessments," updated March 26, 2008:
"Second FY2008 Supplemental Appropriations for Military Operations, International Affairs, and Other Purposes," April 15, 2008:
"Iraq: Regional Perspectives and U.S. Policy," updated April 4, 2008:
"Operation Iraqi Freedom: Strategies, Approaches, Results, and Issues for Congress," March 28, 2008:
"Major U.S. Arms Sales and Grants to Pakistan Since 2001" (fact sheet), updated April 23, 2008:
"Pakistan-U.S. Relations," updated March 27, 2008:
"Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments," updated April 16, 2008:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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SECRET LAW DEBATED IN SENATE HEARING
Secret law that governs the conduct of government activities but is inaccessible to the public is "a particularly sinister" phenomenon that is "increasingly prevalent," said Senator Russ Feingold today at a hearing of the Senate Judiciary Committee Subcommittee on the Constitution.
The hearing produced a particularly rich record on the subject of secret law from a broad and diverse set of perspectives (including one view that "there is no such thing" as secret law).
In my own testimony, I provided a catalog of the many current forms of "secret law" and some of their objectionable consequences.
"If the rule of law is to prevail, the requirements of the law must be clear and discoverable," I suggested. "Secret law excludes the public from the deliberative process, promotes arbitrary and deviant government behavior, and shields official malefactors from accountability."
The classification of the Office of Legal Counsel (OLC) memorandum of torture authored by John Yoo was "one of the worst abuses of the classification process I have seen during my career," testified J. William Leonard, the former director of the Information Security Oversight Office.
More generally, "OLC has been terribly wrong to withhold the content of much of its advice from Congress and the public," said Prof. Dawn E. Johnsen, former head of the OLC, "particularly when advising the executive branch that in essence it could act contrary to federal statutory restraints."
Current OLC director John P. Elwood contended that current OLC disclosure policy "is consistent with the approach of prior Administrations."
Brad Berenson, a former associate counsel to the President, articulated "legitimate interests in secrecy" and cautioned against disclosure initiatives that could have unintended consequences.
Prof. Heidi Kitrosser explained the constitutional framework within which secrecy disputes take place and urged more "effective congressional oversight" to restrain abuses of secrecy.
Attorney David Rivkin, a frequent defender of Administration policies, said that the "law of war" paradigm with all of its attendant secrecy remains the appropriate one.
Sen. Sam Brownback expressed skepticism about new disclosure requirements, while Sen. Sheldon Whitehouse probed the destabilizing implications of the Administration view that executive orders can be "waived" by the President without notice to Congress or the public.
The prepared statements from the Senate hearing are available here:
For all of the differences of opinion, there was also a provisional consensus that the executive branch should be required to report to Congress when it significantly interprets or reinterprets a statutory requirement.
Chairman Feingold announced that the Office of the Director of National Intelligence had notified him that several long-sought opinions of the Office of Legal Counsel concerning interrogation of enemy combatants would be provided to the Senate Intelligence Committee and possibly, in some form, to the Senate Judiciary Committee. Sen. Feingold said he would continue to seek public disclosure of the opinions, a move that is not currently contemplated by the Administration.
HOUSE JUDICIARY QUESTIONS SECRECY OF OLC OPINIONS
The House Judiciary Committee has asked the Attorney General to report on the classification status of all written opinions of the Justice Department's Office of Legal Counsel issued since 2001 that deal with national security, terrorism, civil or constitutional rights of U.S. citizens, or presidential, judicial or congressional power.
"While we appreciate the need to hold closely certain types of information in certain circumstances, we are skeptical that more information regarding the Department's analysis of relevant and important legal issues cannot responsibly be made public," wrote Rep. John Conyers, Jr., chair of the House Judiciary Committee and Rep. Jerrold Nadler, chair of the Subcommittee on the Constitution.
Citing a recent story in Secrecy News, they told the Attorney General that "Recent revelations about the nature and extent of such secret opinions make plain the need for Congress and the American public to receive information on this subject."
See their April 29, 2008 letter here:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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INTEL COMMUNITY MOVES TOWARDS PERFORMANCE-BASED PAY
The Director of National Intelligence last week issued several new Intelligence Community Directives (ICDs) that implement new community-wide personnel practices, including a performance-based compensation policy that rewards superior job performance.
The new payment policy "links performance-based pay increases and bonuses to individual accomplishments, demonstrated competencies, and contributions to organizational results."
"Higher performance and greater contribution to mission should result in proportionally higher rewards for similarly-situated employees."
The new payment and personnel policies, part of DNI J. Michael McConnell's 100-day and 500-day plans, are intended to modernize the business practices of U.S. intelligence agencies and, implicitly, to make government service somewhat more competitive with intelligence contractors in the private sector.
The new personnel policies will also replace the standard government personnel grading system known as the General Schedule (GS) for all intelligence agency employees, except that senior officials at the GS-15 or higher grade are exempted.
The new IC Directives, all dated April 28, 2008, were released under the Freedom of Information Act. They include:
ICD 652, Occupational Structure for the Intelligence Community Civilian Workforce
ICD 654, Performance-Based Pay for the Intelligence Community Civilian Workforce
ICD 656, Performance Management System Requirements for Intelligence Community Senior Civilian Officers
PENTAGON DETAILS OSD RECORDS MANAGEMENT
The Office of the Secretary of Defense (OSD) generates some of the most sensitive and most consequential records in the U.S. Government, along with an enormous volume of ephemeral material. Managing this endless flow of records efficiently and effectively is a challenge.
Close students of OSD records management policy will find useful reference data in two new Pentagon volumes.
General records maintenance policies are spelled out in "Office of the Secretary of Defense (OSD) Records Management Program -- Administrative Procedures," Administrative Instruction 15, change 1, April 18, 2008:
Records schedules approved by the National Archives for the disposition of all OSD component records are compiled in "Office of the Secretary of Defense (OSD) Records Management Program -- Records Disposition Schedules," Administrative Instruction 15, volume 2, April 18, 2008:
China's foreign policy goals and actions in Asia, Africa and Latin America are assessed in a new report to Congress from the Congressional Research Service.
"The study opens with an overview section discussing China's presumed foreign policy goals, the attractions and limitations of China's 'soft power,' and the implications and options for the United States. The memorandum proceeds to an analysis of China's relations with countries in Latin America and the Caribbean, the Southwest Pacific, Japan and South Korea, Central Asia, Southeast Asia, and Sub-Saharan Africa."
The study was released by Senator Joseph Biden, chairman of the Senate Foreign Relations Committee.
"It is my hope that this study will inform debate about China and help point the way toward policies that will not only respond to those Chinese actions that are at odds with U.S. interests, but will also build on the many common interests created by China's enhanced integration with the international community," Sen. Biden wrote in a foreword.
See "China's Foreign Policy and 'Soft Power' in South America, Asia, and Africa," April 2008:
DEA'S USE OF INTELLIGENCE ANALYSTS
"The number of DEA intelligence analysts has grown from 11 since the DEA's inception in 1973 to 710 stationed around the world as of March 15, 2008," according to a new report from the Justice Department Inspector General (IG) on the Drug Enforcement Administration (DEA) as an intelligence agency.
The new report provides the most detailed public account available of DEA's intelligence function and its role as one of the sixteen member agencies in the U.S. intelligence community.
The IG report noted a generally favorable evaluation of DEA intelligence, except for significant delays in publication of time-sensitive intelligence information.
"The DEA Chief of Intelligence told us that when reports officers receive information related to terrorism, weapons, or a foreign country's military, the cable must be prepared and disseminated to the intelligence community within 24 to 48 hours of receipt. Of the 4,500 cables prepared since June 2004, we tested 81 cables for timeliness of dissemination. Our testing showed that cables are transmitted on average 34 days from the date the original information was received by the DEA."
See "The Drug Enforcement Administration's Use of Intelligence Analysts," Audit Report 08-23, Department of Justice Office of the Inspector General, May 2008:
Some of those who idly speculate about nominees to cabinet positions in the next Administration have mentioned Justice Department Inspector General Glenn A. Fine, who is widely respected for his independence, as a possible future Attorney General.
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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PROGRAM TRACKS NUCLEAR MATERIALS WORLDWIDE
An interagency program established in 2006 by a classified Presidential directive is working to gather information on the status and security of nuclear materials around the world and to characterize them for forensic purposes. Remarkably, such a thing had never been done before in a rigorous way.
"On August 28, 2006, the national-level Nuclear Materials Information Program (NMIP) was established via National and Homeland Security Presidential Directive (NSPD-48/HSPD-17)," said Rolf Mowatt-Larssen, director of the Department of Energy Office of Intelligence and Counterintelligence at an April 2, 2008 hearing of the Senate Homeland Security and Governmental Affairs Committee.
"While the specifics of NMIP are classified, the goal of NMIP is to consolidate information from all sources pertaining to worldwide nuclear materials holdings and their security status into an integrated and continuously updated information management system," he said.
"We have prioritized this program to focus on countries and facilities that we regard in the intelligence community to be of the highest risk," said Mr. Mowatt-Larssen at another hearing last October 10. "So we have in fact identified the high-risk sites. We have identified what type of material is there. We have an assessment, an ongoing assessment, it's being updated every day, on the status at the highest priority level. It's a work in progress. It's going to take a number of years to complete."
"I'm very enthusiastic about what they're doing," said Matt Bunn, a nonproliferation expert at Harvard who has long advocated this kind of database development. "My hat's off to them," he said, adding that the Bush Administration deserved credit for surpassing previous efforts in this direction.
The subject matter of the classified Presidential directives NSPD-48 and HSPD-17 had not been publicly identified before Mr. Mowatt-Larssen's testimony last month. Thanks to Jeffrey Richelson of the National Security Archive who noticed the disclosure. A list of known Bush Administration National Security Presidential Directives is available here:
PRESSURE BUILDS TO IMPROVE OVERSIGHT OF INTEL CONTRACTORS
A bill introduced in the House of Representatives would require U.S. intelligence agencies to report to Congress on the total number and cost of contractors that they employ and to provide detailed information on the services that contractors perform. Some controversial intelligence contractor activities would be prohibited outright, including arrest, interrogation and detention.
"Contracting in the intelligence community has more than doubled in scope in the last decade, and it's clear that effective management and oversight is lacking," said Rep. David Price (D-NC), who co-sponsored the new legislation (H.R. 5973) with Rep. Jan Schakowsky (D-CA).
"We've got to get a handle on it," Rep. Price said. "That means demanding more complete information, establishing more effective management practices and, in some cases, drawing a red line to prevent the privatization of especially sensitive activities."
The two Members of Congress hope to include the provisions of their bill in the 2009 intelligence authorization act, which is being marked up in the House Intelligence Committee today. See the text of the "Transparency and Accountability in Intelligence Contracting Act of 2008" here:
The fact cited by Rep. Price that intelligence contracting "has more than doubled in scope in the last decade" was first reported by journalist Tim Shorrock writing in Salon and elsewhere.
Mr. Shorrock has recently authored a book on intelligence contracting which describes as much about the sensitive subject as intrepid reporting can uncover.
See "Spies for Hire: The Secret World of Intelligence Outsourcing" by Tim Shorrock, Simon & Schuster, 2008:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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