Nomination Sheds New Light on Intel Policy

Last week the Senate confirmed Stephanie O’Sullivan to be the Principal Deputy Director of National Intelligence (PDDNI), the number two position in the Office of the Director of National Intelligence (ODNI).  Ms. O’Sullivan, a longtime CIA employee who is currently Associate Deputy Director of CIA, will be the fourth person to hold that office.

A review of the materials submitted in support of her nomination, especially a set of answers to pre-hearing questions (pdf) submitted by the Senate Intelligence Committee, turns up a number of interesting new details concerning intelligence policy.  For example:

**  ODNI began an effort last year “to reinvigorate the declassification of imagery for public release,” Ms. O’Sullivan said. She indicated that this program had been “launched in May 2010,” but there is little sign that it has had any impact to date.

On the contrary, attempts to gain access to historical intelligence satellite imagery remain as contentious and mostly as fruitless as ever.  “Trying to get [satellite imagery] declassified today, it’s like I’m taking their marbles away,” said Charles P. Vick of earlier this month, “and it’s over 40 years old.”  (“New Secrets of Huge Soviet Moon Rocket Revealed” by Leonard David,, February 7, 2011).

**  Over the past several years, science and technology research activities at CIA “have improved substantially,” leading to the operational use of new intelligence technologies, Ms. O’Sullivan told the Senate Intelligence Committee.

This upbeat assertion contrasts, for example, with a 2006 Intelligence Science Board report which found that technological “innovation in the Intelligence Community” was “hobble[d]” and that the problem was approaching “critical levels.”  (“Intel Science Board on ‘The New S&T Landscape’,” Secrecy News, January 10, 2011).

But Ms. O’Sullivan said that “There has been a marked increase in cutting edge technology which has been developed through research and development and successfully transitioned to operations… [The CIA Directorate of Science and Technology’s] acquisitions and operations have also delivered innovative new capabilities and technical operations that have closed collection gaps.”

The nature of these capabilities and operations was not specified.  One trusts that they did not include the fraudulent intelligence-related technologies that were central to the unfolding Dennis Montgomery/e-Treppid Technologies scandal and featured in the New York Times last weekend.  (“Government Tries to Keep Secret What Many Consider a Fraud” by Eric Lichtblau and James Risen, New York Times, February 20, 2011).

Ms. O’Sullivan also provided brief commentary on the obscure and mostly classified Comprehensive National Cybersecurity Initiative (CNCI), which she said was “progressing satisfactorily.”   She discussed in general terms the government’s response to WikiLeaks, which she said “represents the magnitude of the potential danger when technology, opportunity, and malevolent human motivation combine.”  Her answers to the pre-nomination hearing questions may be found here.

Sometimes the questions that were posed to Ms. O’Sullivan were more interesting than the answers.  Thus, in an oddly flattering formulation, the Senate Intelligence Committee observed that “The National Reconnaissance Office has historically attempted to deliver more program content that can be accomplished under the budgets requested by the President or appropriated by Congress.  We understand that this problem is again arising in the fiscal year 2012 budget build now in progress.”

A routine questionnaire for Presidential nominees asks whether the nominee has ever been arrested or charged with committing a crime.  Ms. O’Sullivan noted (pdf) that she was charged with trespassing in August 1989 for “being in a public park after closing.”  The charges were subsequently dropped.

Guantanamo, Nanotechnology, and More from CRS

Newly updated reports of interest from the Congressional Research Service include the following (all pdf).

“Egypt: The January 25 Revolution and Implications for U.S. Foreign Policy,” February 11, 2011.

“Amendments to the Foreign Intelligence Surveillance Act Set to Expire February 28, 2011,” February 10, 2011 (a three month extension until May 27, 2011 was passed by Congress last week).

“Intelligence Identities Protection Act,” January 28, 2011.

“Closing the Guantanamo Detention Center: Legal Issues,” February 11, 2011.

“Nanotechnology and Environmental, Health, and Safety: Issues for Consideration,” January 20, 2011.

“Foreign Aid: An Introduction to U.S. Programs and Policy,” February 10, 2011.

FOIA Advocate Steve Horn, RIP

Former Congressman Steve Horn (R-CA), who was a leading congressional defender of the Freedom of Information Act and of public access to government information generally, died last week at age 79.

Rep. Horn was a primary sponsor, along with Sen. Patrick Leahy, of the Electronic Freedom of Information Act of 1996, which formally extended the provisions of the FOIA to electronic records. He led congressional efforts to oversee FOIA implementation and to address defects in agency compliance.

As chairman of a House Government Reform subcommittee with jurisdiction over FOIA, “What struck me then and now is the critical role that public access to Government information plays in our democracy,” Horn said in 2002. “It is key to having an informed citizenry and to supplying our citizens with the knowledge they need to hold their Government accountable. Therefore, I have always been a strong advocate of the Act.”

Rep. Horn “was outspoken against the abuse of secrecy by executive agencies and the willingness of many Congressional Committees to ignore their duties and allow such secrecy,” recalled Rep. Carolyn Maloney (D-NY) after his retirement in 2002. “He forced the CIA and the Department of Defense to release documents so that Congress could effectively perform oversight.”

In a rather modest gesture of respect, Congress named a post office after him in 2003 (the “Stephen Horn Post Office Building” at 2300 Redondo Avenue in Long Beach, California).

Update: Horn’s family invites donations in his name to the University Library, California State University, Long Beach, c/o CSULB Foundation, 1250 Bellflower Blvd., Long Beach, CA 90840 (via LAT).

Engage Now: Science Diplomacy in the Middle East

Revolution in Egypt (c) Al Jazeera
  • In the wake of revolution the U.S. must immediately engage with Egypt and Tunisia through S&T initiatives.
  • The U.S. should: expedite student visas, fund additional scholarships, support dialogues between U.S and regional universities, and recommit existing S&T and education aid packages.
  • S&T activities should be a key component of building better, more resilient relationships with MENA countries.

The Middle East and North Africa are currently in a period of intense instability and transition and we do not know what the other side looks like.  Within the last month revolutions in Tunisia and Egypt have ousted Presidents Ben Ali and Hosni Mubarak, respectively, while Yemenis continue to protest against the rule of President Ali Abdullah Salah, who has agreed to step down in the next election.  All three of these leaders are secular strongmen who have ruled their respective countries for at least twenty years and are widely viewed in the region as pro-American.

While vastly different, each of these three countries has the potential to be an important economic, political, and security partner for the United States.  Currently America’s relationship with all three heavily emphasizes military and anti-terrorism cooperation, often at the expense of our economic and political relationship.

In fact the U.S. government is the leading military supplier for all three countries, with military assistance counting for over 70% of their total country aid package.  Egypt alone received over USD 1.5 billion in military and economic aid in 2010, second only to Israel in the Middle East and North Africa (MENA) region, while Tunisia received USD 20 million and Yemen received USD 160 million.  Of this almost USD 1.7 billion in aid, less than 800 million went to all non-security aid programs, which include economic development, civil society and governance building, and education.

To provide perspective on the size of U.S. military support, the President’s FY 2012 requested budget for the entire Office of International Science and Engineering (OISE) at the National Science Foundation requests just over USD 58 million, up over 21% from FY 2010.  Under this budget funding for OISE, which serves as the interagency focal point for all international science and engineering activities, equals just over 22% of the military aid for Egypt alone in FY2010.   And given the current Congress, even this relatively small budget is likely to face stiff opposition.  But should the United States be focusing so intently on military and security aid to the MENA region or could other forms of aid and engagement play an equally important role?

Despite decades of high military funding for Egypt and other MENA countries, Egypt and Tunisia’s revolutions reveal that the countries are neither stable nor economically and politically successful.  A different approach to U.S. economic assistance and engagement is needed.  The U.S. S&T sector will play a critical role in this new approach because of the sector’s ability to develop new economic opportunities, the popularity of U.S. science, and the focus on positive engagement.

Over the past two years the U.S. government has begun a new initiative in the region that aims to further and deepen science and technology (S&T) ties between America and the Muslim world.  Popularly termed the “Cairo Initiative,” through the Mulsim-Majority Countries Initiative the government has appointed three science envoys, scaled up existing S&T projects, increased dialogue on S&T and education, and developed (on paper) five centers of excellence, though none have received appropriations and remain unrealized.

In the face of the recent political upheaval and revolution, S&T partnership, assistance, and support play an even more critical role, both because of the disruptions to S&T that have occurred and because of the unique opportunities provided by these circumstances.

The S&T challenges created or exacerbated by political upheaval and revolution can broadly be grouped into: education, economic, foreign relations, and damages to or destruction of resources and physical infrastructure.

In each category some challenges and opportunities will be immediate, while others will be long term and may not be most effectively addressed until a new government and power structure is in place.

In the immediate future the greatest needs and challenges for the S&T communities will be:  the disruption of academic institutions, the temporary halting or holdup of student visas, international aid holds, and lost economic opportunities.  The U.S. government and S&T community can play a critical role in responding to and overcoming these challenges.

Immediately, embassies in each country should work to get their visa processing—especially of student visas—back up to speed.  The U.S. embassies should expedite the processing of visas for all students who have a place at a U.S. academic institution.  Simultaneously, academic institutions in the U.S. should work with students to make up any time they have missed as a result of their visa holdup and inability to leave the country.  For the upcoming Fall 2011 semester, the U.S. should look for opportunities to increase study opportunities and scholarships in the U.S. for students from Egypt, Tunisia, and other countries where academic institutions may not be on stable footing.

In many Middle Eastern countries, top university positions are politically appointed.  Where the revolution or political transition has created voids in S&T leadership and where there are opportunities to restructure how leadership positions are decided, U.S. universities can immediately begin dialogues with partner institutions in the Middle East on how to restructure leadership based on criteria such as merit and fit with institutional needs.  The government can support U.S. universities in these efforts by creating a pool of funding for delegations of university administrators and leaders to visit and engage with existing partner institutions in Egypt, Tunisia, and other countries undergoing similar upheaval.

A third critical role the U.S. government can play in the immediate future will be the recommitment of all promised S&T aid and funding, especially for funding that benefits S&T stakeholders at many levels.

In Egypt, for example, USAID has promised USD 50 million for S&T higher education in Egypt, to be channeled to the Ministry of Higher Education.  Over the past few months, USAID has worked with Ministry officials, scientists, and other stakeholders to develop a model to leverage this funding to engage and benefit stakeholders and provide economic opportunities for the S&T community.  Efforts such as these must not be lost.  Rather, the U.S. government must recommit to this and similar assistance packages, get staff back on the ground to determine how the funding model has changed, and actively engage with S&T stakeholders to provide aid that is appropriate, need driven, and stakeholder supported.

At this critical juncture in the Middle East, the U.S. must seize our opportunities to engage with, to support, and to build our positive relationship with the S&T community.

Senate Bill Would Make Leaks a Felony

Legislation introduced in the Senate this week would broadly criminalize leaks of classified information.  The bill (S. 355) sponsored by Sen. Benjamin Cardin (D-MD) would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement.

Under existing law, criminal penalties apply only to the unauthorized disclosure of a handful of specified categories of classified information (in non-espionage cases).  These categories include codes, cryptography, communications intelligence, identities of covert agents, and nuclear weapons design information.  The new bill would amend the espionage statutes to extend such penalties to the unauthorized disclosure of any classified information.

(Another pending bill, known as the SHIELD Act, would specifically criminalize disclosure — and publication — of information concerning human intelligence activities and source identities. Both bills were originally introduced at the end of the last Congress, and were reintroduced this month.)

“I am convinced that changes in technology and society, combined with statutory and judicial changes to the law, have rendered some aspects of our espionage laws less effective than they need to be to protect the national security,” said Sen. Cardin.  “I also believe that we need to enhance our ability to prosecute… those who make unauthorized disclosures of classified information.”

“We don’t need an Official State Secrets Act, and we must be careful not to chill protected First Amendment activities,” he said.  “We do, however, need to do a better job of preventing unauthorized disclosures of classified information that can harm the United States, and at the same time we need to ensure that public debates continue to take place on important national security and foreign policy issues.”

The bill would replace the Espionage Act’s use of the term “national defense information” with the broader but more precise term “national security information.”  It would outlaw any knowing violation of an employee’s classified information nondisclosure agreement, “irrespective of whether [the discloser] intended to aid a foreign nation or harm the United States.”  The bill would not criminalize the receipt of leaked information, and it would not apply to whistleblowers who disclose classified information through authorized channels.

But it would establish a rebuttable presumption that any information marked as classified is properly classified.  (The bill does not distinguish between “information” and “records.”)  This means that the government would not have to prove that the leaked information was properly classified;  the defendant would have to prove it was not. In order to mount a defense arguing “improper classification,” a defendant would have to present “clear and convincing evidence” that the original classifier could not have identified or described damage to national security resulting from unauthorized disclosure.  Such challenges to original classification are almost never upheld, and so the defendant’s burden of proof would be nearly impossible to meet.

The bill does not provide for a “public interest” defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.  It does not address the issue of overclassification, nor does it admit the possibility of “good” leaks.  Disclosing that the President authorized waterboarding of detainees or that the government conducted unlawful domestic surveillance would be considered legally equivalent to revealing the identities of intelligence sources, the design of secret military technologies or the details of ongoing military operations.

And at a time when an unprecedented number of leak prosecutions are underway, the bill’s premise that an enhanced ability to prosecute leaks is needed seems questionable.  In fact, in a 2002 report to Congress, then-Attorney General John Ashcroft said that the laws already on the books were sufficient and that no new anti-leak legislation was required.

“Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified…. Accordingly, I am not recommending that the Executive Branch focus its attention on pursuing new legislation at this time,” Mr. Ashcroft wrote.

In 2000, Congress enacted legislation to criminalize all leaks of classified information, but the measure was vetoed by President Clinton.

“There is a serious risk that this legislation would tend to have a chilling effect on those who engage in legitimate activities,” President Clinton wrote in his November 4, 2000 veto message.  “A desire to avoid the risk that their good faith choice of words — their exercise of judgment — could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues.”

“Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect,” President Clinton wrote.

Natural Gas, and More from CRS

New reports from the Congressional Research Service on natural gas and miscellaneous other topics include the following (all pdf).

“Implication’s of Egypt’s Turmoil on Global Oil and Natural Gas Supply,” February 11, 2011.

“Israel’s Offshore Natural Gas Discoveries Enhance Its Economic and Energy Outlook,” January 31, 2011.

“Global Natural Gas: A Growing Resource,” December 22, 2010.

“The Army’s Ground Combat Vehicle (GCV) and Early Infantry Brigade Combat Team (E-IBCT) Programs,” January 18, 2011.

“Cuba: Issues for the 112th Congress,” January 28, 2011.

“Mexico’s Drug Trafficking Organizations: Source and Scope of the Rising Violence,” January 7, 2011.

“Is Biopower Carbon Neutral?,” January 25, 2011.

“Violence Against Members of Congress and Their Staff: Selected Examples and Congressional Responses,” January 25, 2011.

“The Obama Administration’s Feed the Future Initiative,” January 10, 2011.

The Nuclear Weapons Modernization Budget

The FY2012 budget request includes considerable nuclear weapon modernization

By Hans M. Kristensen

The Obama administration has published its budget request for Fiscal Year 2012, which includes its plans for maintaining and modernizing its nuclear weapons arsenal.

Due to the extensive debate about the New START treaty last year a great deal of the nuclear plans were already known. And the budget request demonstrates that the administration follows through on its promise to modernize the U.S. nuclear weapons arsenal and production facilities.

How this modernization effort will color the administration’s public nuclear legacy remains to be seen.

Continue reading

A New Milestone in Intelligence Budget Disclosure

The Director of National Intelligence on Monday did what has never been done before:  He disclosed the size of the coming year’s budget request for the National Intelligence Program.  For Fiscal Year 2012, “The aggregate amount of appropriations requested for the National Intelligence Program is $55 billion,” according to a February 14 ODNI news release (pdf).

The new disclosure was required by the FY2010 intelligence authorization act (sec. 364).  That legislation permitted an optional Presidential waiver of disclosure if necessary on national security grounds, but no waiver was asserted.

The disclosure of the budget request constitutes a new milestone in the “normalization” of intelligence budgeting. It sets the stage for a direct appropriation of intelligence funds, to replace the deliberately misleading practice of concealing intelligence funds within the defense budget.  Doing so would also enable the Pentagon to (accurately) report a smaller total budget figure, a congenial prospect in tight budget times.  (See “Intelligence Budget Disclosure: What Comes Next?”, Secrecy News, November 1, 2010.)

The publication of the intelligence budget request is the culmination of many years of contentious debate and litigation on the subject.

Until quite recently, intelligence community leaders firmly opposed disclosure both of the intelligence budget total and of the total budget request.  In response to a 1999 lawsuit brought by the Federation of American Scientists, Director of Central Intelligence George J. Tenet said that revealing the budget request would damage national security and compromise intelligence methods.

“I have determined that disclosure of the budget request or the total appropriation reasonably could be expected to provide foreign intelligence services with a valuable benchmark for identifying and frustrating United States’ intelligence programs,” DCI Tenet wrote in a sworn declaration.  The court upheld the classification of the requested information.

Was DCI Tenet wrong then about the damaging effects of disclosure?  Is DNI Clapper wrong now to dismiss the significance of such damage?  Could they somehow both be right?

From our perspective, Mr. Tenet was wrong in 1999, and the damage he foresaw would not have resulted from the disclosure that he prevented. (It turns out that the FOIA litigation process is not an effective way to contest such judgments.)

More fundamentally, the changing official assessment of the need to classify this information reflects the subjectivity that is inherent in the classification process, which makes it possible for two intelligence community leaders to reach opposing conclusions.

The same subjectivity prevails today.  Thus, while the budget request for the National Intelligence Program (NIP) has now been disclosed, the request for the Military Intelligence Program (MIP) remains classified.  We have requested release of this information.

The $55 billion requested for the NIP in FY 2012 represents a slight increase over the $53.1 billion appropriated for the NIP in FY 2010.  The FY 2011 NIP appropriation has not yet been published.  It is supposed to be disclosed at the end of the current fiscal year.

State Secrets Case Said to Conceal Environmental Damage

The Central Intelligence Agency invoked the state secrets privilege in 2004 to cover up a case of environmental contamination at a CIA facility that caused illnesses to an Agency employee and his family, according to the employee, Kevin Shipp.

The episode was revealed in the Washington Post and the New York Times on February 11 after Mr. Shipp decided to go public with his account of the sealed case.

The story was elaborated yesterday in the Washington Post with the disclosure that the CIA also failed to respond to inquiries from Mr. Shipp’s congressman, Rep. Frank Wolf, and that the congressional intelligence committees refused to respond to Mr. Shipp at all.  See “Intelligence panels ignored CIA officer’s pleas” by Jeff Stein, February 14.

By invoking the state secrets privilege, the government denied Mr. Shipp the basic right to argue his case and to seek a remedy.  Although the Obama Administration’s September 2009 policy on state secrets held out the promise that “credible allegations of government wrongdoing” in state secrets cases facing dismissal would be referred to agency Inspectors General, there is no record of any such referral by the Obama Administration or its predecessor.

Having been refused access to judicial review of his claims and with no response from congressional overseers, Mr. Shipp evidently chose to violate the court order sealing his case and the classification controls restricting its disclosure.  He did not “leak” the information anonymously.  Instead, he publicly revealed at least the outlines of his case.  He may now pay an additional price for these violations.  But he may also have reckoned that the state secrets privilege has no force in the court of public opinion.

Declassifying the Pentagon Papers, Finally

The National Declassification Center (NDC) at the National Archives will declassify the full text of the Pentagon Papers as well as the underlying documentation on which they are based, along with investigative material concerning the 1971 leak of the Papers by Daniel Ellsberg, the NDC said yesterday.

“One matter to keep in mind concerning the Pentagon Papers is that there is no complete record of the report in the public domain,” the NDC blog said.

The Pentagon Papers Project “is both an interagency and intra-agency effort.  NARA is working closely with its partners in the intelligence and defense communities, and the Department of Justice to ensure that we make available as much of this historical collection as possible.”

But one wonders why a “project,” complete with inter- and intra-agency coordination, is necessary at all to process defense policy records that were mostly made public 40 years ago.  A better use of public resources would be to wave a wand and simply declare the records open.