Declassification of Intelligence Satellite Imagery Stalled

The eagerly awaited declassification of vast amounts of historical intelligence satellite imagery that was supposed to occur this year did not take place, and it is unknown when or if it might go forward.

Earlier this year, government officials had all but promised that the declassification and release of miles of satellite imagery film was imminent.

“The NGA [National Geospatial-Intelligence Agency] is anticipating the potential declassification of significant amounts of film-based imagery… in 2011,” the Agency stated in a solicitation that was published in Federal Business Opportunities on February 14, 2011.  (“Large Release of Intelligence Imagery Foreseen,” Secrecy News, February 28, 2011).

“Almost all” of the historical intelligence imagery from the KH-9 satellite (1971-1986) should be declassified within a few months, said Douglas G. Richards of the Pentagon’s Joint Staff at an August 23, 2011 public forum of the National Declassification Center.

But it didn’t happen.  Why not?

“I have no additional information to provide you concerning the status of this declassification effort,” said Mr. Richards by email this week.  “The Joint Staff completed its participation with the action a few months ago, consequently, I don’t know its current status.  Recommend contacting NGA for additional information.”

An NGA spokesman said that the Agency is still weighing the issue and that it will eventually make a recommendation to the Director of National Intelligence on how to proceed.  But it has not yet done so, and there is no particular deadline for it to reach a conclusion on the issue.

“The Director of National Intelligence (DNI) has requested that NGA review the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings for the purpose of making a recommendation to the DNI for possible declassification,” said NGA public release officer Paul R. Polk in a November 10 email message to Prof. Chris Simpson of American University.

“At this time, NGA is conducting an ongoing review of the materials and will make its recommendations to the DNI once the evaluations are completed.”

“If the DNI decides to declassify the subject imagery (or portions thereof), NGA will then need to develop a systematic method for transitioning the holdings over to the National Archives and Records Administration (NARA) for the purpose of making these records available to the general public.”

“In short, NGA cannot at this time advise as to what portions of the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings will be declassified by the DNI, or when they may be available for purchase from NARA,” wrote Mr. Polk in his message to Prof. Simpson.

It is difficult to discern what is going on behind the scenes here.  One official suggested that the public announcements of impending declassification may have had the unintended effect of triggering latent opposition to the move and preventing its implementation.

There is a history of contention over imagery declassification dating back to President Clinton’s 1995 executive order 12951, which declassified imagery from the Corona, Argon and Lanyard intelligence reconnaissance programs.

The Clinton order was a historic development in intelligence policy that was enthusiastically welcomed by scientists, environmentalists and many others at the time.  But it also contained some problematic language that made subsequent declassification action more difficult than it would have been otherwise.  The order stated that intelligence imagery from satellite programs other than Corona, Argon and Lanyard “shall be kept secret… until deemed otherwise by the Director of Central Intelligence.”

Intelligence officials seized upon this language to argue that satellite imagery had been “carved out” of the normal procedures for automatic and systematic declassification.  They insisted that any future release of such imagery was exclusively within the discretion of the DCI (later the DNI), who simply declined to exercise that discretion.

A compelling counterargument can be made that this Clinton order language (or this interpretation of the language) was superseded by later executive orders, including EO 13526, which stated that “no information may be excluded from declassification… based solely on the type of document or record in which it is found” (sect. 3.1g).

But although the debate might have been won in theory, it has been effectively lost in practice.  Contrary to prior official statements, there will be no further declassification of historical satellite imagery in 2011, and no one can say when it might resume.

Pre-Publication Review as a Secrecy Battleground

The Obama Administration’s uncompromising approach to punishing “leaks” of classified information has been widely noted.  But its handling of pre-publication review disputes with former intelligence agency employees who seek to publish their work has been no less combative.

Government prosecutors are preparing to confiscate proceeds from the unauthorized publication of “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” by the pseudonymous Ishmael Jones, a former CIA officer.  After Jones published the book without the permission of CIA reviewers, the government said that he was in violation of the secrecy agreement he had signed.

Jones argued that he had not published any classified information and that CIA had breached the agreement first by failing to review his manuscript in good faith.  But his efforts were unavailing, and a court concurred with the CIA.

“All discovery demands heretofore served by defendant [Jones] are quashed, and defendant is prohibited from serving other discovery demands,” ruled Magistrate Judge Thomas Rawls Jones, Jr. in favor of the CIA on November 4.

If Jones believed that CIA was wrongly obstructing publication of his work, prosecutors said, what he should have done “was to file suit in U.S. District Court challenging the Agency’s decision, in order to obtain permission to publish the book.”

That sounds reasonable enough.  But in another case where an author did exactly that, government attorneys are making it all but impossible for the author to present his argument to a judge.

Anthony Shaffer, author of the Afghanistan war memoir “Operation Dark Heart,” said that intelligence agencies had unlawfully violated his First Amendment rights by censoring his manuscript.  But the government wants to limit his ability to present his challenge.

For one thing, Shaffer has been denied access to the original text of his own book.  The text contains classified information, the government says, and he no longer holds a security clearance.  So he is out of luck.  Nor has the government allowed him use of a secure computer so that he could cite contested portions of the text and dispute their classification in pleadings submitted to the court.

Instead, the government argues that the Court should resolve the disagreement based on the materials provided by the government, along with any unclassified materials that may be submitted by the plaintiff [Mr. Shaffer].  Shaffer does not need his manuscript or a secure computer, since “it is improper and unnecessary for Plaintiff to submit classified information to the Court at this time.”  (Joint Status Report, July 22, 2011).

Even unclassified materials that Mr. Shaffer may wish to submit in a declaration to the court — in order to demonstrate that the supposedly classified information in his original text is already public — may need to be sealed from public disclosure, the government said on October 28.  That is because “the association of that open source information with the book’s redactions may make the [author’s] declaration classified.”

All of this is quite absurd, said Mark S. Zaid, Mr. Shaffer’s attorney, in a reply filed last week.

“There is no other way for Shaffer to identify and challenge any of the specific text purported to be classified, much less present an argument to the Court, if he does not have access to the original copy of his book,” Mr. Zaid wrote.

The upshot is that under current policy neither Mr. Jones, who defied the rules, nor Mr. Shaffer, who has attempted to follow them, is permitted to gain a meaningful independent review of government restrictions on the information he sought to publish.

There is an additional layer of absurdity in Mr. Shaffer’s case, since the unredacted text of his book has been publicly released in limited numbers, and portions of it are even available online.  (“Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010).

FAS Roundup-November 14, 2011

FAS Roundup: November 14, 2011

Dispute over nuclear weapons program costs, IAEA Iran report analysis, new documentary on anthrax, terrorist threat to Pakistan’s nuclear arsenal and more.

From the Blogs

  • Dispute over Cost of Nuclear Weapons Program:  Steven Aftergood investigates the radically different estimates of cost of the U.S. nuclear program presented by members of Congress in the past few weeks. The disparate estimates, which vary by hundreds of billions of dollars, reflect a lack of consensus about how to properly assess the cost of nuclear weapons.

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A New Intelligence Org on Climate Change is Needed, DSB Says

The U.S. intelligence community needs an organization that can assess the impacts of climate change on U.S. national security interests in an open and collaborative manner, according to a new report from the Defense Science Board (DSB).

The Director of National Intelligence should establish a new intelligence group “to concentrate on the effects of climate change on political and economic developments and their implications for U.S. national security,” said the DSB report on “Trends and Implications of Climate Change for National and International Security” (large pdf).

The Central Intelligence Agency already has a Center on Climate Change and National Security.  So why would the Intelligence Community need an entirely new organization to address the exact same set of issues?

One reason is that the role envisioned for the new organization is inconsistent with the practices of the CIA Center.  So, for example, the new intelligence group would be expected to pursue cooperative relationships with others inside and outside of the U.S. government.  It would also “report most of its products broadly within government and non-government communities,” the DSB report said.

But the CIA Center, by unspoken contrast, does not report any of its climate change products broadly or allow public access to them.  (“At CIA, Climate Change is a Secret,” Secrecy News, September 22, 2011).

The CIA’s unyielding approach to classification effectively negates the ability of its Center on Climate Change to interact with non-governmental organizations and researchers on an unclassified basis.  Since, as the DSB noted, much of the relevant expertise on climate change lies “outside the government [in] universities, the private sector, and NGOs,” the CIA’s blanket secrecy policy is a potentially disabling condition.

In fact, the DSB report said, the secretive approach favored by CIA is actually counterproductive.

“The most effective way to tackle understanding [climate change] may be to treat it, for the most part, as an open question, transparent to all engaged in its study,” the DSB report said.  “Compartmentalizing climate change impact research can only hinder progress.”

CIA Sees “Little Likelihood” of Finding Docs on Secrecy Reform

There is “little likelihood” that the Central Intelligence Agency will be able to produce any records documenting the CIA’s implementation of the Fundamental Classification Guidance Review that each classifying agency is required to conduct, the Agency said last week.

The Fundamental Classification Guidance Review (FCGR) was ordered by President Obama in his December 2009 executive order 13526 (section 1.9) as a systematic effort to eliminate obsolete or unnecessary classification requirements.  It is the Obama Administration’s primary response to the problem of over-classification, and it has already achieved some limited results at the Department of Defense and elsewhere.

But it can’t possibly work if agencies don’t implement it.  And so far there is no sign of any such implementation at CIA, despite the fact that compliance is not optional.

In response to FOIA requests over the past year for records on the CIA’s progress in conducting its fundamental review, the CIA said it still had no records on the FCGR that are subject to the FOIA requests.

In an earlier response, “we informed you that a search was conducted and no records responsive to your request were located,” wrote Susan Viscuso, CIA Information and Privacy Coordinator, on October 26.  “Although there is little likelihood that an updated search would produce different results, we will be glad to do so.”

Ms. Viscuso’s letter appeared to hint that responsive files might be contained in CIA “operational files” that are exempt from search and review under the CIA Information Act.  But such a claim would be substantively and legally spurious, especially since responsive records on the FCGR would have been “disseminated” outside of their source files (e.g. to the Information Security Oversight Office), which would nullify their exemption from search and review.

Meanwhile, another intelligence agency, the National Reconnaissance Office (NRO), proved more responsive.  The NRO said in a report on the FCGR (pdf) that was released last week under the FOIA that it had scheduled all of its classification guides for a fundamental review, as required.  The NRO, which is responsible for U.S. intelligence satellites, also said it was preparing an integrated classification guide that would be “more agile, timely, consistent, uniform, and flexible in providing classification guidance and principles at the lowest appropriate classification level.”

Cost of Nuclear Weapons Program in Dispute

In the last few weeks, members of Congress have presented radically different estimates of the cost of the U.S. nuclear weapons program.  The disparate estimates, which vary by hundreds of billions of dollars, reflect a lack of consensus about how to properly assess the cost of nuclear weapons.

“The U.S. will spend an estimated $700 billion on nuclear weapons and related programs over the next ten years,” according to an October 11 press release from Rep. Ed Markey (D-MA).  Citing that estimate, which was based on an analysis by the Ploughshares Fund, Markey and 64 other Democratic members wrote to the Super Committee on Deficit Reduction to propose a cut of $200 million in spending on nuclear weapons.

But Rep. Mike Turner (R-OH) said last week that the entire nuclear weapons budget for the next ten years is only about $214 billion.  He said that the cuts proposed by Democrats would therefore “amount to unilateral and immediate nuclear disarmament by the United States” with “catastrophic impacts to our national security and global stability.”

In his own letter to the Super Committee, Rep. Turner, chair of a House Armed Services Subcommittee, cited November 2 testimony from Administration officials including Thomas D’Agostino of the National Nuclear Security Administration (NNSA), who said that “The 1251 report [on nuclear force structure] makes clear that the total for the Department of Defense and NNSA will cost approximately $200 billion over the next 10 years, not the $600 billion or so that some are claiming.”

That seemingly authoritative statement might have settled the issue — but it did not, according to Stephen I. Schwartz of the Monterey Institute of International Studies.

“Here’s the fundamental problem: No one in the government knows exactly how much has been spent or continues to be spent on nuclear weapons because there is not and has never been a unified, comprehensive budget to monitor all their costs across departments and agencies and over time,” said Mr. Schwartz, an author of several studies on nuclear weapons spending.

The nominal budget for nuclear weapons, said Mr. Schwartz, “excludes a number of very expensive and critical programs that make the nuclear arsenal usable, including overhead and support costs; most research and development costs for delivery systems and support equipment; all costs for tactical nuclear weapons; airlift and sealift costs for strategic and tactical nuclear weapons programs; most centralized command, control, communications programs associated with nuclear weapons; all intelligence programs that support the nuclear weapons mission; and some training costs.”

To remedy the ambiguity in nuclear budgeting, Mr. Schwartz proposed that Congress enact a new framework for financial transparency and accountability in the nuclear weapons program.  In principle, he said, such a framework should appeal to political leaders and analysts of all persuasions.

“If Congress (and the interested public) had a clear understanding of what it costs to sustain the nuclear arsenal, or of, for example, the annual expenditures required to secure vulnerable nuclear materials in the United States and overseas, we could have a rational and logical discussion about the costs and benefits of these programs.”

“Unfortunately, we do not, which means that rhetoric and assumptions will most likely replace facts when it comes to making important decisions about the future of US nuclear security spending,” he wrote in a recent paper.  See “Building Budgetary Transparency and Accountability for the US Nuclear Weapons Program” by Stephen I. Schwartz, September 8, 2011.

Dirty War Documents, Directed Energy Weapons, More

Last week, Rep. Maurice Hinchey (D-NY) asked President Obama to expedite the declassification of U.S. intelligence documents pertaining to Argentina’s so-called “dirty war” during the military dictatorship that lasted from 1976 to the mid-1980s. “The substantial backlog at the National Archives and Records Administration and history of unwillingness to declassify by U.S. intelligence agencies has led me to believe that systematic declassification is not a suitable solution,” Rep. Hinchey wrote on November 2, explaining his request for Presidential intervention.

A new U.S. Air Force policy directive on “Directed Energy Weapons” specifies that whenever such a weapon is developed within a tightly-secured Special Access Program, a legal review of the classified weapon will be conducted by the Air Force General Counsel to “ensure… that any such weapon complies with domestic and international law.”

A new report from the Congressional Research Service considers the use and abuse of synthetic drugs.  See “Synthetic Drugs: Overview and Issues for Congress,” October 28, 2011.

FAS Roundup- November 7, 2011

Letter to the Obama administration regarding nuclear budget, new podcast highlighting sustainable energy and water security, 2011 intelligence budget spending on the decline and  more.


From the Blogs

  • Prospects Fade for a Separate Intelligence Budget: Steven Aftergood writes about the National Intelligence Program budget, which will mostly remain hidden in the Department of Defense budget for the foreseeable future; it will not be given a separate budget line item or a separate appropriation despite the efforts of budget reformers and intelligence community leaders.

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