Last month the Director of National Intelligence transmitted to Congress the Obama Administration’s proposed language for next year’s Intelligence Authorization Act. This week, the Administration forwarded several additional proposals. To its credit, the Senate Intelligence Committee has made this material available for public review on its web site.
Unsurprisingly, the proposed language would generally tend to expand intelligence agency authority while relaxing existing controls.
For example, the draft bill (pdf) would grant the DNI a new exemption under the Freedom of Information Act for “operational files.” Under this provision, if an intelligence agency that has its own operational file exemption transfers an operational file to the ODNI, the transferred information would retain its exempt status. (Normally, operational file information that is disseminated beyond the originating agency would lose its exemption from review under FOIA.)
In order to preserve the security of intelligence sources and methods and to promote information sharing, DNI Blair testified (pdf) last month, “It is imperative that those [operational] files are accorded the same protections at the ODNI as they are accorded at the CIA [for example].”
Recent experience suggests otherwise, however. In 2005, FAS sought certain unclassified budget records from the National Reconnaissance Office, which the NRO denied because it said they were “operational files.” We challenged that position in a FOIA lawsuit and a court ruled (pdf) that the NRO’s claim to an operational file exemption was not valid due in part to the fact that the document had been disseminated outside of the agency to the ODNI. More than a hundred (pdf) partially redacted pages were found to be releasable.
At least a few lessons emerge from this episode: First, it appears that intelligence agencies have a tendency to invoke the operational files exemption more broadly than is justified, in an attempt to exclude releasable records from processing under the FOIA. Second, the loss of the NRO’s operational file exemption in this case had no adverse effect on information sharing within the intelligence community. The NRO did not and could not have stopped sharing its budget documents with the ODNI. Third, the processing of these records under FOIA did not result in any uncontrolled release of classified information or of sensitive intelligence sources and methods. It just didn’t.
Aside from the operational files exemption, the Administration’s draft intelligence authorization bill also would exempt the ODNI from the open meeting requirements of the Federal Advisory Committee Act. It would cancel several existing reporting requirements. And so forth.
Here are a few hypothetical secrecy reform provisions that were notincluded in the Administration’s draft bill:
- A requirement that intelligence agencies perform a top-to-bottom review of all of their classification guides with the objective of eliminating all obsolete or unnecessary classification requirements. Modeled on the 1995 Fundamental Classification Policy Review at the Department of Energy, such a process should include appropriate channels for public input and review, along with the participation of subject matter experts other than the original classifier.
- A revision of the National Security Act of 1947 to clarify that the requirement to protect intelligence sources and methods is limited only to those sources and methods that would be jeopardized or compromised to the detriment of national security if revealed.
- An instruction to the DNI Open Source Center that OSC products that are neither classified nor copyrighted should be made available to the public.