A Focus on “Sensitive But Unclassified” Information

The government’s use of the problematic “sensitive but unclassified” (SBU) designation to restrict access to information that does not warrant classification is coming under new scrutiny.

“Federal agencies do not use uniform definitions of SBU information or have consistent policies for safeguarding or releasing it,” a new study from the Congressional Research Service (CRS) observed.

“This lack of uniformity and consistency raises issues about how to identify SBU information, especially scientific and technical information; how to keep it from those who would use it malevolently, while allowing access for those who need to use it; and how to develop uniform nondisclosure policies and penalties.”

The 82-page CRS report presents a comprehensive treatment of this vexing subject. It surveys the origins of government SBU practices; explores “contentious issues” involving SBU; and considers recommendations to improve SBU policy.

CRS does not permit direct public access to its publications, but a copy was obtained by Secrecy News.

See “‘Sensitive But Unclassified’ Information and Other Controls: Policy and Options for Scientific and Technical Information,” dated February 15, 2006 (published March 14, 2006).

The Government Accountability Office yesterday released a report on SBU policies at the Departments of Energy and Defense to coincide with a House Government Reform Subcommittee hearing. See “Managing Sensitive Information: Departments of Energy and Defense Policies and Oversight Could Be Improved,” Report No. GAO-06-369, March 2006.

The National Security Archive conducted its own survey of SBU policies at federal agencies and released a report entitled “Pseudo-Secrets: A Freedom of Information Audit of the U.S. Government’s Policies on Sensitive Unclassified Information.”

In the Press

President Bush this week said that a newspaper — the Los Angeles Times — had published details of a new technology used to defend against improvised explosive devices, and that jihadists used details from that newspaper story to develop techniques for defeating the new technology. Noah Shachtman of DefenseTech.org argues that there is reason to doubt the President’s account. See “The Enemy is Me,” March 14. (There’s more here.)

“In another sign of increasing government secrecy, the Federal Aviation Administration has removed from its Web site the transcript of a heated public hearing during which pilots ridiculed no-fly zones that have surrounded Washington since 9/11,” writes Lance Gay of Scripps Howard News Service. See “FAA yanks potentially ‘sensitive’ information from Web site,” March 15.

If the New York Times could be prosecuted under the Espionage Act for having disclosed the warrantless NSA surveillance activity, as some enthusiasts have proposed, then who else might be guilty of a similar offense? That question was asked and answered by Jack Shafer in “A Gitmo for Journos: Who besides the New York Times could be prosecuted under the Espionage Act?”, Slate, March 14.

DNI Negroponte on Intelligence Information Sharing

In an effort to improve the sharing of intelligence information, the Director of National Intelligence last year authorized the use of a new marking for intelligence documents: RELIDO, or Releasable by Information Disclosure Official.

RELIDO is intended “to facilitate information sharing through streamlined, rapid release decisions by authorized disclosure officials,” DNI John D. Negroponte wrote in a June 2005 memo.

Essentially, the RELIDO marking permits authorized officials to release documents (on a need-to-know basis, of course) without consulting the originators of the documents.

This is a step forward since originator controls on the dissemination of intelligence are one of the major bottlenecks that impede intelligence information sharing.

A copy of the DNI memo, marked For Official Use Only (not RELIDO), was obtained by Secrecy News.

See “Intelligence Community Implementation of Releasable by Information Disclosure Official (RELIDO) Dissemination Marking,” DCID 8 Series Policy Memoranda 1, June 9, 2005.

No one should mistake the recent focus on intelligence information sharing for greater openness or public disclosure. To the contrary, “information sharing” has been accompanied by increased secrecy in intelligence.

In 2004, for example, the Central Intelligence Agency decided that it would no longer release unclassified intelligence directives under the Freedom of Information Act. Though such directives had previously been released, the CIA now claimed that they were exempt from FOIA as internal agency records (exemption 2) and as intelligence sources and methods information (exemption 3).

Consequently, Americans who are interested in such things are obliged to seek out alternate sources of information.

Among the directives that CIA refused to release under the FOIA is Director of Central Intelligence Directive 8/1, the last Directive issued by former DCI George Tenet, on the subject of intelligence information sharing.

That DCI directive was hailed enthusiastically but perhaps prematurely by some officials.

It “changed the sharing paradigm from ‘need to know’ as determined by the information collector to ‘share at the first point of usability’ as determined by intelligence users across our community,” wrote Maj. Gen. John F. Kimmons, commander of the U.S. Army Intelligence and Security Command, in INSCOM Journal last year.

A copy of the directive, marked For Official Use Only, was obtained by Secrecy News.

See “Intelligence Community Policy on Intelligence Information Sharing,” DCID 8/1, June 4, 2004.

Intelligence Oversight: The Road Not Taken

Democratic proposals to initiate a congressional investigation of the National Security Agency warrantless surveillance program have been repeatedly rebuffed by Republican leaders in Congress.

This month, House Committees have produced no fewer than four adverse reports on Democratic “resolutions of inquiry,” which sought executive branch records on domestic intelligence surveillance.

In the Senate, a proposal (pdf) by Sen. Jay Rockefeller (D-WV) to investigate the NSA program was voted down on party lines in the Senate Intelligence Committee on March 7.

See the adverse reports of the House Intelligence Committee, the House Armed Services Committee, and the House Judiciary Committee (two: here and here).

Some background on the use of resolutions of inquiry as an instrument of oversight can be found in “House Resolutions of Inquiry” by Louis Fisher (who is now with the Law Library of Congress), Congressional Research Service, May 12, 2003.

Sen. Russ Feingold announced yesterday that he would introduce a resolution to censure President Bush for “authorizing the illegal wiretapping program and then misleading the country about the existence and legality of the program.”

Some New Intelligence-Related Publications

“Sources and Methods of Foreign Nationals Engaged in Economic and Military Espionage” is the title of a September 15, 2005 hearing of a House Judiciary Subcommittee which has just been published.

Defense Department policy on Operations Security has been updated in a new directive. Operations Security (OPSEC) refers to the identification and reduction of tell-tale signs of military operations that could be exploited by an adversary. See “DoD Operations Security (OPSEC) Program” (pdf), DoD Directive 5205.02, March 6, 2006.

Under Secretary of Defense for Intelligence Stephen A. Cambone has reissued the National Industrial Security Program Operating Manual (NISPOM), which “provides baseline standards for the protection of classified information released or disclosed to industry.” See the updated NISPOM, DoD Manual 5220.22, February 28, 2006.

US News: Secrecy Under Scrutiny

The latest issue of U.S. News and World Report (March 20) features an interview with me on the subject of government secrecy.

It is part of the observance of Sunshine Week, which is a nationwide effort to focus public attention on the virtues of open government.

My not-so-smiling face can also be seen in light and shadow cast by window blinds (“It’s not cliche,” the photographer explained, “it’s classic.”).

See “Secrecy Under Scrutiny” by David E. Kaplan, U.S. News and World Report, March 20, 2006.

A sidebar takes a look at Freedom of Information Act policy. See “Finding out what Uncle Sam has on you” also by David E. Kaplan.

For more on Sunshine Week go to www.sunshineweek.org.

More on the “Incomprehensible” Espionage Act of 1917

The Espionage Act is “in many respects incomprehensible,” wrote Harold Edgar and Benno C. Schmidt, Jr. in a definitive law review article (large pdf) three decades ago which explored the potential use of the Act to prosecute leaks to the media.

The espionage statutes are “so sweeping as to be absurd,” they argued (previously noted in Secrecy News, 10/19/05).

“If these statutes mean what they seem to say and are constitutional, public speech in this country since World War II has been rife with criminality.”

Now a scan of that 1973 paper is available online.

See “The Espionage Statutes and Publication of Defense Information,” Columbia Law Review, May 1973, vol. 73, pp. 929-1087 (a large 6.3 MB PDF file).

Though it remains the best account of the legislative history of the Espionage Act, the Edgar/Schmidt article is not the last or the latest word on the meaning of the Act. In particular, the prosecution of Samuel L. Morison in 1985 for providing classified satellite photos to Jane’s Defence Weekly established that the Espionage Act could be used to successfully prosecute leakers.

An article in the current issue of Commentary Magazine now calls for the prosecution of the New York Times for disclosing the NSA warrantless surveillance activity.

Though many experts consider the NSA program to be illegal because it violates the clear language of the Foreign Intelligence Surveillance Act, Commentary author Gabriel Schoenfeld argues that disclosure of the program is the crime that should be investigated and prosecuted.

That perspective is examined in “Bill Keller in Chains: Commentary’s case for prosecuting the Times under the Espionage Act” by Jack Shafer, Slate, March 9.

CIA on the President’s Daily Brief

(Updated Below)

Some new details on the preparation of the President’s Daily Brief (PDB) and its presentation to the President and a small number of other officials are discussed in a Central Intelligence Agency declaration (pdf) filed last week in the prosecution of former Vice Presidential aide I. Lewis “Scooter” Libby.

“Six mornings a week, intelligence briefers meet with the President and selected senior Executive officials to provide a daily intelligence briefing. Each briefer meets with one or more designated officials to present an oral briefing and a binder containing written materials for each official’s review,” wrote CIA official Marilyn A. Dorn.

She argued in her March 2 declaration that responding to Mr. Libby’s request for production of various PDBs and related material would be extremely burdensome and might also infringe on executive privilege.

A March 7 response from Mr. Libby is available here.

The CIA has agreed to process a Freedom of Information Act request from the Federation of American Scientists for redacted PDB materials that it had declassified and provided to the Office of Special Counsel.

But the Agency denied a request for fee waiver because, CIA official Scott Koch wrote on March 3, “disclosing the information you seek is not likely to contribute significantly to public understanding of the operations and activities of the United States Government.”

Update: The Court today partially granted and partially denied the Libby request for discovery of PDB-related material and other items. The government was ordered to provide the defense with “redacted versions of the documents provided to the defendant during his morning intelligence briefing that were also viewed by the Vice President” or “topic overviews of the subject matter contained in those documents.”

See the Court’s March 10 Order here (pdf), and the underlying Memorandum Opinion here (pdf).