Declassified PDB Info is Still Classified, CIA Says

Even though certain information concerning the President’s Daily Brief (PDB) was redacted and declassified for use in the prosecution of former vice presidential aide Scooter Libby in 2006, that same information is nonetheless “currently and properly classified,” the Central Intelligence Agency said (pdf) last week.  The Agency denied release of the material under the Freedom of Information Act.

The existence of the declassified PDB material was disclosed in a January 9, 2006 letter (pdf) from Special Counsel Patrick J. Fitzgerald to Mr. Libby’s attorney.  He wrote:  “In response to our requests, we have received [from CIA] a very discrete amount of material relating to PDBs and discussions involving Mr. Libby and/or Vice President Cheney concerning or relating to the PDBs.  We have provided to Mr. Libby and his counsel (or are in the process of providing such documents consistent with the process of a declassification review) copies of any pages in our possession… in the redacted form in which we received them.”

Since declassified PDBs are comparatively rare, we submitted a Freedom of Information Act request in February 2006 for a copy of the PDB-related material that was declassified by CIA for the Libby prosecution.  Last week, the CIA responded that it had located the requested material but that “we determined [it] is currently and properly classified and must be denied in its entirety.”

This is a somewhat puzzling development.  It is a pity that the CIA Inspector General does not investigate violations of the law of non-contradiction. (Aristotle, Metaphysics, 1005b12-20.)

With few exceptions, the CIA has consistently opposed public release of PDBs, reflecting an uncompromising view that PDBs are intrinsically sensitive, irrespective of their age or contents, and should not be disclosed.  (The Agency did reluctantly agree to disclose the August 6, 2001 PDB item entitled “Bin Ladin Determined to Strike in US” (pdf) at the insistence of the 9/11 Commission.)

When challenged under the Freedom of Information Act, courts have upheld the CIA’s refusal to release specific PDBs.  But a 2007 ruling in the Ninth Circuit Court of Appeals rejected the CIA view that “PDBs are categorically exempt from FOIA.”  In particular, the court denied the CIA assertion that the PDB itself is an intelligence method that is protected by law.  “Although PDBs will typically contain information that reveals intelligence sources and methods, this does not mean that PDBs themselves are intelligence methods.”

“If we were to accept the CIA’s logic,” the court said, “then every written CIA communication — regardless of content — would be a protected ‘intelligence method’ because it is a method that CIA uses in doing its work…. We decline to adopt such a boundless definition, and instead hold that whether or not a particular document used by the CIA in its ordinary course of business is an intelligence method depends upon the content of the document.” (Larry Berman v. Central Intelligence Agency, September 4, 2007).

Although the CIA claimed that the Libby PDB-related material that was declassified in 2006 is now “properly classified,” the Agency did not invoke the FOIA exemption for classified information.  Instead, it denied release of the material on the basis of FOIA exemption (b)(3) which includes statutory protection for intelligence methods.

Update: Marcy Wheeler at Emptywheel has some of the PDB-related exhibits that were introduced at the Libby trial, along with her own insights into this peculiar turn of events.

More Than 2.4 Million Hold Security Clearances

Some 2.4 million persons currently hold security clearances for authorized access to classified information, according to a recent Government Accountability Office report (pdf) to the House Intelligence Committee, citing an estimate from the security clearance Joint Reform Team.  This figure does not include “some of those with clearances who work in areas of national intelligence,” the GAO noted (at p.1).

An accurate tally of the number of cleared government employees and contractors — as opposed to a round-number estimate — is not currently available anywhere in government.  The House version of the FY2010 intelligence authorization act (sec. 366) would require an annual report that indicates the number of individuals with security clearances.

In 1993, an estimated 3.2 million persons held security clearances, according to a 1995 GAO report (cited by the Moynihan Commission, chapter 4).

Some Recent Hearing Volumes on Intelligence

Some noteworthy, newly published congressional hearing volumes on intelligence policy and related topics include the following (mostly pdf).

“Attorney General Guidelines for FBI Criminal Investigations, National Security Investigations, and the Collection of Foreign Intelligence,” Senate Intelligence Committee, September 23, 2008.

“Nomination of Michael Leiter to be Director, National Counterterrorism Center,” Senate Intelligence Committee, May 6, 2008.

“U.S. Interrogation Policy and Executive Order 13440,” Senate Intelligence Committee, September 25, 2007.

“Fixing the Homeland Security Information Network: Finding the Way Forward for Better Information Sharing,” House Homeland Security Committee, May 10, 2007.

“Budget Request on Unmanned Aerial Vehicles (UAV) and Intelligence, Surveillance, and Reconnaissance (ISR) Capabilities,” House Armed Services Committee, April 19, 2007.

ISCAP Directs NSA to Release COMINT History

In 2005, the National Security Agency released a partially declassified (pdf) 1952 history of communications intelligence prior to Pearl Harbor with several passages censored.  But this month, the NSA released the complete text (pdf) of the document after the Interagency Security Classification Appeals Panel (ISCAP) determined that there was no justification for continued classification of the withheld portions.

During World War II, “Collaboration with the BRITISH COMINT organization got off to a bad start so far as the Navy was concerned…,” according to one newly declassified paragraph from the official history. “For several months U.S. Navy COMINT personnel thought they had been double-crossed by the British and were reluctant to go ahead with collaboration in direction finding and other matters which were greatly to England’s advantage throughout 1941.”  Subsequent cooperation, however, proved “harmonious.”  Now it can be told.

The NSA document was released in response to a mandatory declassification review request, followed by an appeal to ISCAP, submitted by researcher Michael Ravnitzky.  See “A Brief History of Communications Intelligence in the United States” by Captain Lawrence Safford, USN, 21-27 March 1952.

The new disclosure illustrates once again the efficacy of the ISCAP in overcoming the reflexive secrecy of executive branch agencies, including those that are represented on the ISCAP itself.  More often than not, the ISCAP has released information that one of its own member agencies said must remain classified.

Fundamentally, the ISCAP’s experience over the past decade or so demonstrates the importance of extending declassification authority beyond the original classifying agency.  Left to their own devices, agencies will adhere to past classification practices indefinitely.  But when such practices are critically examined by others, including others within the executive branch, they often wither before the scrutiny.

If there is a solution to “the problem of overclassification,” as requested by President Obama in a May 27, 2009 memorandum, it is bound to involve this kind of independent, external review of agency classification and declassification practices.

CRS on Innovation Inducements, Postal Closures

A new report from the Congressional Research Service examines the government’s use of “grand challenges” or monetary prizes to provide incentives for technological advancement.  In quite a few cases, such incentives have inspired or accelerated new technology breakthroughs — in lightweight power supplies and autonomous unmanned vehicles, for example.  In other cases, the proffered prizes have gone unclaimed because the challenge was not met, as in a recent competition to generate breathable oxygen from simulated lunar soil.  In any case, it seems likely that the new CRS report is the best thing ever written on the subject.  See “Federally Funded Innovation Inducement Prizes” (pdf), June 29, 2009.

Another new CRS report considers the mundane but significant fact that the US Postal Service may soon close thousands of post office branches and stations due to declining demand and volume.  This exhaustive report, once again, is almost certainly the best, most informative treatment of its chosen subject.  See “Post Office and Retail Postal Facility Closures: Overview and Issues for Congress” (pdf), July 23, 2009.

Despite the efforts of Sen. Joseph Lieberman, Sen. John McCain and a few others, there appears to be little near-term prospect that Congress will permit direct public access to CRS reports like these.  Fortunately, routine unauthorized disclosures of the reports continue to meet the need fairly well.

See also, lately (all pdf):

“Issues Regarding a National Land Parcel Database,” July 22, 2009.

“Federal Research and Development Funding: FY2010,” July 15, 2009.

“The U.S. Newspaper Industry in Transition,” July 8, 2009.

“Agricultural Conservation Issues in the 111th Congress,” July 7, 2009.

Other News and Resources

Rep. Rush Holt (D-NJ) has suggested that the time may have come to undertake a comprehensive review of U.S. intelligence agency activities and operations on the scale of the 1976 Church Committee investigation.  See “Holt Calls for Next Church Committee on CIA” by Spencer Ackerman, The Washington Independent, July 27, 2009.

The corrosive tendency of government agencies to classify historical information that is already in the public domain is made vividly clear in a collection of erroneously redacted documents compiled by William Burr of the National Security Archive.  See “More Dubious Secrets: Systematic Overclassification of Defense Information Poses Challenge for President Obama’s Secrecy Review,” July 17, 2009.

A 2008 intelligence community policy memorandum on “Connection of United States and Commonwealth Secure Telephone Systems” (pdf) was released in almost entirely redacted form.

Some 700 classified images of Arctic sea ice have been declassified and released, the Department of Interior noted in a July 15 news release.  “It reportedly is the largest release of [imagery] information derived from classified material since the declassification of CORONA satellite images during the Clinton Administration,” the DOI said.  The release followed a National Research Council report that said the release of such classified imagery was needed to support climate change research.  (See also coverage from Mother Jones and The Guardian.)

Persistent concerns over the government’s use of the state secrets privilege to curtail civil litigation were aired at a June 9, 2009 hearing before Rep. Jerrold Nadler’s House Judiciary Subcommittee.  The record of that hearing, with abundant supporting materials submitted for the record, has just been published.  See “State Secret Protection Act of 2009.”

Adaptations of CSIPS for Multistory Construction

The Building Technologies Program has just released a new report titled “Adaptations of Cementitious Structural Insulated Panels for Multistory Construction“.  Written for the Charles Pankow Foundation, this document explores the procedures for designing and constructing cementitious structural insulated panels (CSIPs) elements in multi-story buildings.  While the International Residential Code currently covers SIPs for buildings of two stories or less, no code has been written and very little testing has been performed on utilizing SIPs, especially CSIPs in multistory (3+stories) construction.

Both in practice and in code, SIPs are primarily targeted toward single-story, residential construction.  However, FAS believes that SIPs have strong potential to play a wider role in both the commercial and residential sectors of the building industry.  One barrier toward the adoption of this advanced technology system is the lack of available information for architects and engineers on the properties of CSIPS and on methods to adopt in applying CSIPS to multistory buildings.

This report seeks to fill that information gap by providing material, data and appendixes in such a manner and in sufficient detail that a knowledgeable engineer can replicate and apply the design and construction methods and principles described herein.  In addition, the first chapter serves as a detailed overview of history, materials, fabrication methods and current uses and markets related to SIPs in general and CSIPs in particular.

A PDF copy of the full report is available here.

Senate Bill Would Disclose Intel Budget Request

The Senate version of the FY2010 intelligence authorization bill (pdf) would require the President to disclose the aggregate amount requested for intelligence each year when the coming year’s budget request is submitted to Congress.  Currently, only the total appropriation for the National Intelligence Program is disclosed — not the request — and not before the end of the fiscal year in question.

Disclosure of the budget request would enable Congress to appropriate a stand-alone intelligence budget that would no longer need to be concealed misleadingly in other non-intelligence budget accounts.

“This reform makes possible a recommendation of the 9/11 Commission to improve oversight by passing a separate intelligence appropriations bill and provides for greater transparency and accountability for intelligence spending,” said Sen. Russ Feingold, who sponsored the proposal, together with Committee Vice Chairman Sen. Christopher Bond and Sen. Ron Wyden.  (Curiously, the measure was opposed by Sen. Sheldon Whitehouse.)  See Senate Report 111-55 (pdf) on the FY2010 Intelligence Authorization Act, Senate Select Committee on Intelligence, July 22 (sec. 356).

Intelligence budget disclosure has been and still remains a subject of extraordinary sensitivity to some officials.  In 1999, DCI George J. Tenet specifically opposed the idea of releasing the annual budget request because he said it would damage national security by revealing intelligence strengths and defects.

“Disclosure of the budget request reasonably could be expected to provide foreign governments with the United States’ own assessment of its intelligence capabilities and weaknesses. The difference between the appropriation for one year and the Administration’s budget request for the next provides a measure of the Administration’s unique, critical assessment of its own intelligence programs,” Mr. Tenet argued in an April 6, 1999 affidavit filed in a FOIA lawsuit brought by the Federation of American Scientists.

This is surprisingly close to nonsense.  Changes in aggregate spending levels occur for many reasons, including the start of new programs, the termination of completed programs, shifts in acquisition phases, personnel changes and inflation.  The difference between the previous year’s expenditures and the following year’s request represents the outcome of thousands of individual programmatic decisions.  Looking at last year’s NASA budget and this year’s NASA request, one could not possibly infer a meaningful assessment of the performance of the civilian space program.  The same is true of the vastly more complicated intelligence bureaucracy.

But implausible as it seems, Mr. Tenet’s argument was sufficient to convince D.C. District Judge Thomas F. Hogan that disclosure would in fact threaten national security.  And so the intelligence budget request has never been released.

Even now, the CIA takes great pains to conceal budget information that is more than half a century old, as if national security were somehow at stake.  This week, the CIA published an historical document on its website concerning the “Central Intelligence Group Budget, Fiscal Year 1948” (pdf) with the ancient budget numbers meticulously removed.

Today, Bill Gertz of the Washington Times reported on a working draft of a new executive order on classification that he obtained. The principal feature of the new draft seems to be a National Declassification Center, designed to coordinate and expedite the declassification of historical records across the government.  But it remains unclear if the proposed Center will include a mechanism for overturning erroneous classification policies like CIA’s indiscriminate budget secrecy.  If it does not provide an error correction mechanism, then the Center might end up perversely reinforcing today’s retrograde classification policies and implementing them even more efficiently.

OSC Sees Signs of North Korean Succession

North Korea has renewed its planning for the likely succession of leadership from the ailing Kim Jong Il to his youngest son Kim Cho’ng-un (or Kim Jong Un), according to a deeply researched assessment by the DNI Open Source Center (OSC).

“Pyongyang last autumn reinvigorated a nuanced propaganda campaign that it apparently began eight years ago to prepare for the emergence of a hereditary successor to Kim Jong Il,” the OSC said.  “The recent signals have been extremely subtle, suggesting that they are designed to inform internal audiences without alerting outsiders.”

kimThe OSC report (pdf) is a virtuoso piece of analysis that includes rich detail on the three generations of Kims, the development of the unfolding information campaign on leadership succession, and background on the little-known Kim Cho’ng-un. It even presents “an OSC-generated age-progression photo” that extrapolates from the only available photograph of the younger Kim, taken at age 10, to show what he may look like now at age 26.  And it shows an amazing familiarity with obscure facets of North Korea’s notoriously secretive society.

Thus, it finds a possibly significant allusion to Kim Cho’ng-un, who is his father’s third-born son, in the recent broadcast of “a children’s program entitled ‘Good Heart of the Third Child,’ which emphasized the moral virtue of the youngest of three brothers in his adherence to socialist principles.”  This is something of a departure from the Confucian tradition which favors the eldest son, the OSC explains.

The OSC analysis, marked “for official use only,” has not been approved for public release, but a copy was obtained by Secrecy News.  It was mentioned in “Who Will Succeed Kim Jong Il?” by Andrew Higgins, Washington Post, July 16, 2009.  See “North Korean Media Campaign Suggests Long-Term Planning for Hereditary Successor,” Open Source Center, 6 May 2009.

For all of its detail and sophistication, the OSC assessment is inconclusive.  A Russian analyst this week told that the anticipated selection of Kim Cho’ng-un is merely “conjecture and rumor” (Interview with Vasiliy Mikheyev,, July 21, 2009, translated by OSC).  He recalled witnessing the ascension of Kim Jong Il to power in 1975 when Kim was publicly presented together with his father Kim Il Sung in joint portraits and official news stories.  But “nothing of the sort is happening now… If only speculation is occurring, I think the successor has still not been chosen.”

Court Rebukes Government Over “Secret Law”

“Government must operate through public laws and regulations” and not through “secret law,” a federal appellate court declared in a decision last month.  When our government attempts to do otherwise, the court said, it is emulating “totalitarian regimes.”

The new ruling (pdf) overturned the conviction of a defendant who had been found guilty of exporting rifle scopes in violation of the International Traffic in Arms Regulations (ITAR).  The court said that the government had failed to properly identify which items are subject to export control regulations, or to justify the criteria for controlling them.  It said the defendant could not be held responsible for violating such vague regulations.

Accepting the State Department’s claim of “authority to classify any item as a ‘defense article’ [thereby making it subject to export controls], without revealing the basis of the decision and without allowing any inquiry by the jury, would create serious constitutional problems,” wrote Chief Judge Frank H. Easterbrook of the Seventh Circuit Court of Appeals.  “It would allow the sort of secret law that [the Supreme Court in] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), condemned.”

Normally, “A regulation is published for all to see,” explained Judge Easterbrook, a Reagan appointee who is considered a judicial conservative.  “People can adjust their conduct to avoid liability.  [In contrast,] a designation by an unnamed official, using unspecified criteria, that is put in a desk drawer, taken out only for use at a criminal trial, and immune from any evaluation by the judiciary, is the sort of tactic usually associated with totalitarian regimes,” he said.  See the Court’s ruling in United States of America v. Doli Syarief Pulungan, June 15, 2009.

The new ruling “could be a very big deal in terms of export controls, and indeed in terms of ‘secret law’ in general,” said Gerald Epstein, a science and security policy scholar who served on a recent National Academy of Sciences panel on export control policy.  “This case goes to the heart of the ambiguity of the International Traffic in Arms Regulations, which give the State Department great latitude in determining what is and what is not covered, and which are administered in a notoriously opaque way,” Dr. Epstein told Secrecy News.

Export control policy was addressed from various perspectives in an April 24, 2008 Senate hearing entitled “Beyond Control: Reforming Export Licensing Agencies for National Security and Economic Interests” (pdf) that was published last month.

Last year, Sen. Russ Feingold convened a hearing on the subject of “Secret Law and the Threat to Democratic and Accountable Government.” My prepared statement from that hearing on the diverse categories of secret law is available here (pdf).