CIA Will Process Request on Open Source Works

In an abrupt reversal, the Central Intelligence Agency said that it will process a Freedom of Information Act request for documents pertaining to the establishment of Open Source Works, the CIA’s in-house open source intelligence organization.

Intelligence historian Jeffrey Richelson had requested the charter of Open Source Works under the Freedom of Information Act, only to be told that the CIA could not confirm or deny the existence (or non-existence) of responsive records.  See “Charter of Open Source Org is Classified, CIA Says,” Secrecy News, December 12.

But Dr. Richelson said that CIA Information and Privacy Coordinator Susan Viscuso called him yesterday to inform him that the request would be processed after all.  The earlier response, she said, was “an administrative error.”

DoD Says Military Intel Budget Request is Classified

The amount of money that the Pentagon requested for the Military Intelligence Program (MIP) in FY2012 — around $25 billion — is classified and will not be disclosed, the Department of Defense said last week in response to a Freedom of Information Act request for the figure.

The MIP budget request number “is currently and properly classified in accordance with Executive Order 13526 Section 1.4(g) concerning vulnerabilities or capability of systems, installations, infrastructures, projects, plans or protection services relating to the national security,” the December 7 denial letter stated.

The decision to withhold the MIP budget request number is incongruous, considering that the MIP appropriation is unclassified ($24 billion in FY2011).

Not only that, but the amount of money that was requested for the National Intelligence Program (NIP) is unclassified and has been released by the Director of National Intelligence ($55 billion for FY2012).

“No identifiable damage to national security was caused by the release of the NIP budget request figure,” we noted yesterday in an appeal of the initial FOIA denial.

“From a classification policy perspective, there is no substantive difference between the NIP and the MIP.  Each Program involves intelligence sources and methods requiring protection, classified acquisition programs, and other sensitive and properly classified activities.”

“Just as disclosure of the NIP budget request caused no damage to national security, it is clear that disclosure of the MIP budget request would be likewise harmless,” we wrote in the December 13 appeal.

Like other questionable classification choices, the decision to classify the MIP budget request is ripe for reconsideration and correction in the ongoing Fundamental Classification Guidance Review.

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FAS Roundup- December 12, 2011

FAS Roundup: December 12, 2011

Status of China’s nuclear arsenal, new START data, tracking of cell phones and vehicles by law enforcement and more.

From the Blogs

  • No, China Does Not Have 3,000 Nuclear Weapons: Only the Chinese government knows how many nuclear weapons China has. As in most other nuclear weapon states, the number is a closely held secret. A recent example of how not to make an estimate is the study recently published by the Asia Arms Control Project at Georgetown University. The study (China’s Underground Great Wall: Challenge for Nuclear Arms Control) suggests that China may have as many as 3,000 nuclear weapons. Although we don’t know exactly how many nuclear weapons China has, we are pretty sure that it doesn’t have 3,000. In fact, the Georgetown University estimate appears to be off by an order of magnitude.
  • Legislative Secrecy Declines, But Endures: Congress is the most transparent and publicly accessible branch of government, and yet there are many aspects of the legislative process that are opaque and off-limits to public awareness. Secrecy News obtained a recently released CRS report which discusses the transparency of the U.S. Congress.
  • US Releases Full New START Data: Hans Kristensen, Director of the Nuclear Information Project, writes that the recent release of U.S. aggregate data under New START by the State Department is a good development as it increases transparency of U.S. nuclear forces, and restores the practice under the previous START treaty of disclosing such information to the public. Now, the pressure is on Russia to publish its New START data as well.
  • When Does Public Disclosure Make Secrecy Moot?: The U.S. State Department insists that the publication of many thousands of classified diplomatic cables by WikiLeaks does not alter their classification status. In a FOIA lawsuit by the ACLU for 23 of the cables, the State Department released redacted versions of  11 cables; they withheld the other 12 cables, despite them being available online.
  • CRS Loses Several Senior Staffers: The Congressional Research Service gained a new Director this week, but it has recently lost several of its most experienced and accomplished analysts. Steven Aftergood writes that with the departure of senior staff, CRS is also experiencing deeper changes that will leave it with diminished capacity to provide original analysis and insight to Congress and other would-be consumers.

Continue reading

Charter of Open Source Org is Classified, CIA Says

Updated below

Open Source Works, which is the CIA’s in-house open source analysis component, is devoted to intelligence analysis of unclassified, open source information.  Oddly, however, the directive that established Open Source Works is classified, as is the charter of the organization.  In fact, CIA says the very existence of any such records is a classified fact.

“The CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request,” wrote Susan Viscuso, CIA Information and Privacy Coordinator, in a November 29 response to a Freedom of Information Act request from Jeffrey Richelson of the National Security Archive for the Open Source Works directive and charter.

“The fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure,” Dr. Viscuso wrote.

This is a surprising development since Open Source Works — by definition — does not engage in clandestine collection of intelligence.  Rather, it performs analysis based on unclassified, open source materials.

Thus, according to a November 2010 CIA report, Open Source Works “was charged by the [CIA] Director for Intelligence with drawing on language-trained analysts to mine open-source information for new or alternative insights on intelligence issues. Open Source Works’ products, based only on open source information, do not represent the coordinated views of the Central Intelligence Agency.”

As such, there is no basis for treating Open Source Works as a covert, unacknowledged intelligence organization.  It isn’t one.

(Even if Open Source Works were engaged in classified intelligence analysis, the idea that its charter must necessarily be classified is a non-sequitur.  Illustrating the contrary proposition, the Department of Defense last week issued a new Instruction on “Geospatial Intelligence (GEOINT),” setting forth the policies governing that largely classified intelligence domain.)

Beyond that, it is an interesting question “why the CIA felt the need to establish such a unit given the existence of the DNI Open Source Center,” said Dr. Richelson.  The Open Source Center, the successor to the Foreign Broadcast Information Service, is the U.S. Government’s principal open source agency.  It is, naturally, a publicly acknowledged organization.

“An even more interesting question,” he added, is “why would the CIA, whose DI [Directorate of Intelligence] organization structure is published on its website, feel it necessary to refuse to confirm or deny the existence of this new open source component?”

The CIA’s extreme approach to classification policy is timely in one sense:  It provides a convenient benchmark for evaluating current progress in combating overclassification.

If the charter of CIA’s Open Source Works remains classified six months from now, when the Obama Administration’s Fundamental Classification Guidance Review will have completed its first cycle, that will be a decisive indication that the Review failed to eliminate even the most blatant examples of overclassification.

Update: On December 13, the CIA informed Dr. Richelson that its response to his FOIA request was “an administrative error,” and that the request would be processed.

When Does Public Disclosure Make Secrecy Moot?

The U.S. State Department insists that the publication of many thousands of classified diplomatic cables by WikiLeaks does not alter their classification status.  In response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union for 23 of the cables, the Department of State this week released redacted versions of 11 of them and withheld the other 12 in their entirety — even though the full text of all of them is readily available online.

In principle, the question of whether unauthorized disclosure of classified information is tantamount to declassification of that information is not new, although the WikiLeaks case presents it with new force.  The government has always contended, and courts have generally accepted, that unauthorized or unofficial disclosure does not imply or require declassification.

The “official acknowledgment by an authoritative source” of information that is already in the public domain adds a quantum of validity and may itself constitute “new information that could cause damage to the national security” the DC Circuit Court said in Afshar v. Department of State (1983).

Similarly, “there can be a critical difference between official and unofficial disclosures” in the “arena of intelligence and foreign relations,” the DC Circuit said in Fitzgibbon v. CIA (1990).

The Fitzgibbon ruling set forth three conditions that must be met in order for a prior disclosure to overcome a government claim of proper classification and to justify release:   (1) the information requested must be as specific as the information previously released;  (2) the information requested must match the information previously released;  and (3) the information requested must have been previously made public through an official and documented disclosure, i.e. not “leaked.”

Within the FOIA context, this restrictive construct all but shuts the door to an argument that prior public disclosures justify a mandatory release of classified information that has been withheld.  It seems designed to prevent new disclosures, not to enable them.  Without having researched the question in depth, I believe I may be the only FOIA litigant ever to use the Fitzgibbon criteria to compel an agency to disclose information that it wished to withhold.  And even then, I only received what I had already obtained independently.  See “Judge Orders CIA to Disclose 1963 Budget,” Secrecy News, April 5, 2005.

The WikiLeaks disclosures, however, represent a qualitatively new factual scenario because they involve not merely the release of “information” but of actual documents, whose authenticity is not in doubt.

Thus, a Zimbabwe political figure said last week that the Zimbabwe officials who were named in the WikiLeaks cables are like “lice” who will be dealt with at an appropriate time.  (“We will deal with ‘WikiLeaks lice’ appropriately – Sibanda,” Newsday [Harare], November 29, 2011.)  These ominous remarks took for granted that the cables are authentic.  Formal confirmation of their authenticity from the U.S. government at this point could hardly aggravate the situation and would be considered superfluous.

Interestingly, the law does admit the possibility — at least outside of the FOIA context — of an unofficial disclosure that is so widespread that any official acknowledgment becomes redundant and moot.

“One may imagine situations in which information has been so widely circulated and is so generally believed to be true, that confirmation by one in a position to know would add nothing to its weight,” the Fourth Circuit wrote in Alfred A. Knopf Inc. v. William Colby (1975).

But the court did not articulate specific criteria for determining when such imaginary situations had become a reality.  And it said that “appraisals of such situations by the judiciary would present a host of problems and obstacles.”

CRS Loses Several Senior Staffers

The Congressional Research Service gained a new Director this week, but it has recently lost several of its most experienced and accomplished analysts.

Librarian of Congress James Billington appointed Mary B. Mazanec to be the new CRS Director of the Congressional Research Service.  She has been serving as acting Director since the retirement of her predecessor, Daniel Mulhollan, last April.

“Dr. Mazanec has advanced degrees in law and medicine and brings a breadth of experience that will be valuable in leading CRS and ensuring that CRS continues to provide comprehensive and objective research and analysis that meets the needs of Members and staff,” the Librarian said in a December 5 news release.

But with the departure of numerous senior staff, CRS is also experiencing deeper changes that will leave it with diminished capacity to provide original analysis and insight to Congress and other would-be consumers.

The CRS Foreign Affairs, Defense and Trade division lost one intelligence policy analyst, Alfred Cumming, earlier this year.  Another, Richard Best, is retiring.  “Those positions will not be filled for the foreseeable future,” according to a CRS official.  Two other positions in the Asia section are also not going to be filled, the official said, due to budget constraints.

Last month, CRS Specialist Frederick M. Kaiser, author of hundreds of studies on government secrecy, congressional oversight and related issues, retired after more than three decades at CRS.  His expertise and his institutional memory could not be easily replaced even if there were a will and a budget to do so.  Senator Daniel Akaka (D-HI) paid tribute to Mr. Kaiser this week in the Congressional Record.

Bruce Bartlett, a conservative libertarian who is a former congressional staffer and Reagan Administration official, contended recently that congressional support agencies — such as CBO, GAO, CRS and, earlier, OTA — had been deliberately targeted by some Republican leaders.  As centers of nonpartisan analysis and evaluation, he said, these agencies are perceived by some as an obstacle to ideological control of congressional debate that must be weakened or eliminated. (“Gingrich and the Destruction of Congressional Expertise,” New York Times Economix blog, November 29, 2011.)

“It is essential that Congress not cripple what is left of its in-house expertise,” he wrote.

US Releases Full New START Data

The Obama administration gets a medal for disclosing its New START treaty numbers.

By Hans M. Kristensen [updated 12 Dec 2011 with new bomber information]

Anyone familiar with my writings knows that I don’t hand out medals to the nuclear weapon states very often. But the Obama administration deserves one after the U.S. State Department’s recent release of the full U.S. aggregate data under the New START treaty.

The release breaks with the initial practice under the treaty of only publishing overall nuclear force category numbers, and re-establishes the U.S. practice from the previous START treaty of providing maximum disclosure of the strategic forces counted by the treaty. This is a good development that has gone totally unnoticed in the news media.

The pressure is now squarely on Russia to follow suit and publish its New START aggregate data as well. Continue reading