Senate Passes Intelligence Bill Without Anti-Leak Measures

Two Updates/Corrections below

The Senate passed the FY2013 intelligence authorization act on December 28 after most of the controversial provisions intended to combat leaks had been removed.

Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, said the bill was revised in order to expedite its passage.

“Since the bill was reported out,” she said, “the Committee has received thoughtful comments from our colleagues, media organizations, and from organizations that advocate for greater governmental transparency. As a result of these comments, and technical suggestions received from the Executive Branch, we have decided to remove ten of the twelve sections in the title of the original bill that addressed unauthorized disclosures of classified information so that we might ensure enactment this year of the important other provisions of the bill.”

More precisely, the revision of the bill could be attributed to the intervention of Sen. Ron Wyden, who all but single-handedly blocked its enactment after it was approved in Committee last July by a vote of 14-1, with only Wyden dissenting.  Its passage by the full Congress seemed to be assured, but in November, Sen. Wyden placed a hold on the bill to prevent its adoption by unanimous consent.

The provisions that were removed from the final bill included restrictions on background briefings for the press, limits on media commentary by former government officials, and authority for the DNI to unilaterally revoke the pension of a suspected leaker. (“Anti-Leak Measures in Senate Bill Target Press, Public,” Secrecy News, July 31, 2012).

Sen. Wyden opposed most of the anti-leak measures, he explained on December 21, “because, in my view, they would have harmed first amendment rights, led to less informed public debate about national security issues, and undermined the due process rights of intelligence agency employees, without actually enhancing national security.”

He supported the revised intelligence bill, which passed the Senate Friday on a voice vote.

One of the anti-leak provisions that did remain in the bill (sect. 504) will require government officials to notify Congress whenever classified intelligence is disclosed to the press in an authorized manner, other than through FOIA or other routine processes.  Thus, Congress must be advised whenever classified intelligence is declassified specifically for the purpose of disclosure to the media or — more remarkably — if it is disclosed to the press on an authorized basis while still classified.

This is an unprecedented legislative definition (or recognition) of a category of information that has no explicit basis in executive branch policy– namely, authorized disclosures of classified information to an uncleared member of the press or the public.  (“Can Disclosures of Classified Information Be Authorized?”, Secrecy News, December 19, 2012).  While disclosures of classified information to the press obviously occur, the official authorization for such disclosures, if it exists at all, has always remained tacit.  (There is an exception for life-threatening emergencies, in which classified information may be disclosed to first-responders and the like.)

The new provision notably applies to all “government officials,” including White House officials.  It may oblige the Administration either to abstain from authorized disclosures of classified intelligence to the press, or to revise its policies to more clearly permit such disclosures, or to somehow evade the new reporting requirement, perhaps by defining it away.  Thus, for example, Vice President Dick Cheney stated in 2004 that classified information could be used “to shape and inform what one says publicly” without violating prohibitions on disclosure of classified information.

In any case, it will be interesting to see whether the executive branch notifies Congress of even a single such authorized disclosure to the media of classified intelligence over the coming year, after which the provision will sunset (or expire).

“Unfortunately,” said Sen. Feinstein, “I am certain that damaging leaks of classified information will continue, and so the Committee will need to continue to look for acceptable ways to address this problem.”

The revised intelligence bill also backs off from a move to repeal the requirement for an annual report on security clearances.  The most recent such annual report provided significant new transparency and insight into the security clearance system, including the unexpectedly large number of cleared persons.  (“Security-Cleared Population Tops 4.8 Million,” Secrecy News, July 23, 2012).

The Director of National Intelligence had asked Congress to eliminate this reporting requirement, and the Committee markup of the bill initially complied in July.  But in response to concerns expressed by public interest groups, the final legislation did not include the repeal of the security clearance reporting requirement.

“I believe we have addressed all of the concerns that have been brought to our attention by our colleagues and the public,” said Sen. Feinstein.

Update / Correction: The development of the Senate legislation involved more nuance and complexity than was expressed above. In particular, while Senator Wyden was the most outspoken congressional critic of the bill, it is not accurate to say that he “all but single-handedly blocked its enactment” or that passage of the bill by the full Congress was ever “assured.” In fact, Senator Wyden initially supported 11 of the 12 anti-leak provisions at the Committee markup, opposing only the provision on pension revocation. Meanwhile, opposition to the anti-leak measures emerged inside and outside of Congress, notably including the Office of the Director of National Intelligence, as well as press and public interest organizations. Although some of this opposition was not publicly visible, it ultimately proved influential and should not be overlooked.

Update / Correction 2: The previous correction was itself in error when it stated that Senator Wyden supported 11 of the 12 anti-leak provisions. While he specifically expressed opposition to the pension revocation provision at the Committee markup, he did not indicate support for the other measures. He did provide the only ‘no’ vote in Committee against the entire bill. And he was the only Senator to place a hold on the bill, at which time he explained his opposition to several of the bill’s anti-leak proposals.

A New Rule to Protect Radioactive Material (CRS)

A forthcoming Nuclear Regulatory Commission rule on the physical protection of radioactive “byproduct materials” — not including uranium or plutonium — is discussed in a new report from the Congressional Research Service.

“The rule will have broad impacts across the country and across most if not all aspects of industries that use radioactive material, including hospital and blood bank irradiators, industrial radiography equipment, massive facilities for irradiating certain foods and medical supplies, laboratory equipment for research into radiation and its effects, state regulators, and manufacturers, distributors, and transporters of radioactive sources. NRC anticipates that the rule will be published in the Federal Register in early 2013.”

See Nuclear Regulatory Commission 10 C.F.R. 37, A New Rule to Protect Radioactive Material: Background, Summary, Views from the Field, December 14, 2012.

Congress has directed CRS not to make its reports directly available to the public.

FAS Roundup: December 24, 2012

New JASON report, Congress allows reclassification of restricted data and much more.

From the Blogs

  • JASON on “Compressive Sensing” for DoD Sensors: The latest report from the elite JASON science advisory panel is devoted to the subject of “compressive sensing.”  This term generally refers to the use of sensors for imaging (or other sensing) of an object in a manner that uses a limited subset of the available data in order to improve efficiency or conserve resources.
  • Detained Linguist Released Under Supervision: Former Navy contract linguist James Hitselberger, who has been charged under the Espionage Act with mishandling classified records, was ordered released under supervision while awaiting trial on December 19. Mr. Hitselberger is a multi-lingual translator and collector of rare documents, including records that are now housed in a dedicated collection at the Hoover Institution at Stanford University.  Unfortunately for him, the government says that his collection activity extends to some documents that are currently classified.

Continue reading

Detained Linguist Released Under Supervision

Yesterday former Navy contract linguist James Hitselberger, who has been charged under the Espionage Act with mishandling classified records, was ordered released under supervision while awaiting trial.

Mr. Hitselberger is a multi-lingual translator and collector of rare documents, including records that are now housed in a dedicated collection at the Hoover Institution at Stanford University.  Unfortunately for him, the government says that his collection activity extends to some documents that are currently classified.  (Document Collector Charged Under Espionage Statute, Secrecy News, November 7, 2012).

Prosecutors had opposed his pre-trial release, arguing that he had fled from law enforcement by traveling for months through Europe, and that he posed a flight risk.  But Mr. Hitselberger’s public defender argued effectively that could not have “fled” since he had not been charged with anything until recently, that he had traveled openly under his own name, that he remained in contact with his former employer, and that he voluntarily returned to a U.S. Army facility in Kuwait to recover his possessions.

“As far as he knew, Mr. Hitselberger was free to travel–which he did,” Judge Rudolph Contreras summarized in a memorandum opinion issued today. “And as he traveled, he kept in regular contact with many people through many means, openly used his United States passport, and was willing to go to a military base, which no reasonable fugitive would be likely to do.”

Therefore Judge Contreras ruled for the defense and granted his release, albeit under “high intensity supervision” and with “Global Positioning System monitoring” of his whereabouts. Moreover, “he is expressly prohibited… from entering or being in the immediate vicinity of Union Station, any other bus or train station that provides service outside of the Washington metropolitan area, or any airport….” (See related coverage in Politico.)

Mr. Hitselberger has no record of criminal activity, no predisposition to violent behavior, and even prosecutors admit that he was not engaged in espionage on behalf of a foreign power.  There is also no indication that even the mildest adverse consequence arose from his alleged conduct.  And yet the government has opted to charge him with two felony counts under the Espionage Act, which seems like an extraordinary overreaction given the circumstances.

In a different policy environment, loss of job and loss of clearance — which Mr. Hitselberger has already suffered — would have been deemed a fully satisfactory response to an offense of this type and magnitude.

Thus, speaking at his 1997 CIA confirmation hearing about his response to leaks (at p. 108), George Tenet said “I don’t want to prosecute anybody; I want to fire somebody. That will send the right signal to people.”

But today, the Obama Justice Department seems unwilling to accept anything short of the maximum available punishment for unauthorized disclosures, at least for those who are not senior officials or acting under color of authority.

It’s not only the Administration, however.  This week the House and Senate adopted a sense of Congress resolution urging the Department of Justice to “investigate possible violations of Federal law related to unauthorized disclosures of classified information,” adding that “in appropriate cases, individuals responsible for such unauthorized disclosures should be prosecuted to the full extent of the law.”

Further anti-leak legislation is under imminent consideration in the Senate.

Meanwhile, the White House yesterday issued a new National Strategy for Information Sharing and Safeguarding.

“To foster trust and safeguard our information, policies and coordinating bodies must focus on identifying, preventing, and mitigating insider threats and external intrusions, while departments and agencies work to enhance capabilities for data-level controls, automated monitoring, and cross-classification solutions,” the Strategy states.

Congress Permits Reclassification of Restricted Data

Certain nuclear weapons-related information that has been removed from the category of Restricted Data (RD) and designated as Formerly Restricted Data (FRD) can now be restored to the RD category, under a provision approved by Congress in the FY 2013 national defense authorization act.

Until now, the removal of information from the Restricted Data category was irreversible, being prohibited by the Atomic Energy Act.  That prohibition is nullified by the new legislation.

The authority to reclassify FRD as RD was requested by the Department of Energy last year.

“There is sensitive nuclear weapons design information embodied in some FRD… that should be subject to the more stringent security protections afforded RD now than current programmatic capabilities of DoD and the Intelligence Community permit,” wrote Energy Secretary Steven Chu in an August 4, 2011 letter.  (Dept of Energy Wants to Reclassify Some Info as ‘Restricted Data’, Secrecy News, January 17, 2012.)

From an outside point of view, the reclassification of any such information will be undetectable and should not entail an increase in government secrecy.  RD and FRD are equally opaque to the general public.

In fact, the move could potentially have positive repercussions.  By removing the most sensitive information from the FRD category, it should become more feasible to treat the remaining FRD as “ordinary” classified information and to declassify it in an orderly fashion– something which does not happen currently.

Improving declassification procedures for FRD was among the recommendations presented to the White House earlier this month by the Public Interest Declassification Board.

“FRD information concerns the military utilization of nuclear weapons, including storage locations and stockpile information and often dates from the end of World War II through the height of the Cold War,” the PIDB explained in its report. “Although often no longer sensitive or current, this type of FRD information is of high interest to researchers yet remains largely unavailable to the public, because there is no process for systematically reviewing it for declassification and release under the terms of the Executive Order for national security information.”

Therefore, the PIDB recommended, “The classification status of Formerly Restricted Data (FRD) information should be re-examined. A process should be implemented for the systematic declassification review of historical FRD information.”

In a 2010 statement to the PIDB, the Federation of American Scientists suggested that the FRD category be eliminated altogether, arguing that it has become obsolete and unnecessary.  But such a step was further than the PIDB was prepared to go.

The Senate voted last week to reauthorize the Public Interest Declassification Board until 2014, and the House followed suit yesterday by a vote of 409-1.  Rep. Don Young of Alaska voted against the measure for reasons he did not explain.

Offshoring, Chemical Weapons, and More from CRS

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Offshoring (or Offshore Outsourcing) and Job Loss Among U.S. Workers, December 17, 2012

Chemical Weapons: A Summary Report of Characteristics and Effects, December 13, 2012

Party Leaders in the United States Congress, 1789-2012, December 18, 2012

U.S. Wind Turbine Manufacturing: Federal Support for an Emerging Industry, December 18, 2012

Survivor Benefits for Families of Civilian Federal Employees and Retirees, December 18, 2012

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, December 18, 2012

Trimming Nuclear Excess

Co-Authored by Meggaen Neely, Communications Intern at the Federation of American Scientists

The U.S. and Russian nuclear arsenals currently stand at more than 15 times the size of the total nuclear arsenals of all seven other nuclear weapons states combined. In a new report released by FAS, Trimming Nuclear Excess Options for Further Reductions of U.S. and Russian Nuclear Forces, Hans Kristensen, Director of the Nuclear Information Project at FAS, argues that the U.S. and Russian nuclear arms reduction process needs to be revitalized by new treaties and unilateral initiatives to reduce nuclear force levels.

At a briefing  held on Capitol Hill in Washington, DC on December 14, 2012 Steve Pifer, Director of the Arms Control Initiative at the Brookings Institution, and Joe Cirincione, President of the Ploughshares Fund, joined Kristensen in a discussion regarding U.S.-Russian nuclear dialogue.

While Kristensen noted the significant reductions in U.S. and Russian nuclear arsenals since the end of the Cold War, he emphasized the need for further reductions, and expressed concerns at the growing impression  that  the U..S and Russia have shifted their focus to modernizing their nuclear forces and are investing in new nuclear weapon systems. Kristensen suggested that, “unless new unilateral reductions take place or significant arms control agreements are reached; large nuclear forces could be retained far into the future.”

While he alluded to the important role the New START Treaty has played in recent years, he also implied that the effect it has had on U.S. and Russian nuclear forces has remained limited, stating that, “the treaty only regulates a limited (but important) portion of the total forces, it has no direct effect on the number of nuclear warheads the two countries possess, and it does not require destruction of a single nuclear warhead.” Kristensen called upon the U.S. and Russia to revitalize the treaty through new treaties and unilateral initiatives by finding a better balance between modernization plans and their stated commitment towards nuclear disarmament.

Such action would comprise of the implementation of force reductions planned under the New START Treaty as soon as possible. Kristensen placed particular emphasis on the necessity in reducing the missile loading on each Ohio-class ballistic missile submarine (SSBN) and reducing the Minuteman III intercontinental ballistic missiles (ICBMs). He suggested that this was a necessary action in order to decrease the current asymmetry between U.S. and Russian nuclear forces. U.S. nuclear forces have placed particular emphasis on “many delivery vehicles each with fewer warheads” while Russian nuclear forces have been characterized “by fewer delivery vehicles each carrying more warheads.” There are concerns that such asymmetry could lead to mistrust between the two countries and “drive worst-case planning and unnecessarily dynamic posturing that will complicate efforts to reduce nuclear weapons further.”

Pifer reaffirmed the need for bilateral action suggesting that the Obama administration “should pursue a New START II that would cut deployed strategic weapons from the New START level of 1,550 warheads apiece to 1,000.” Pifer placed less emphasis on unilateral reductions than Kristensen. Kristensen suggested that implementation of a new treaty that addresses non-deployed and non-strategic weapons will take a significant period of time to negotiate and that some unilateral reductions could help to reduce concerns about asymmetry and stability in the interim.

The full report can be read here.

Nuclear Arms Control Opportunities: An Agenda for Obama’s Second Term by Steven Pifer and Michael O’ Hanlon can be read here.

Can Disclosures of Classified Information Be Authorized?

It is plainly true that executive branch officials will sometimes disclose classified information to reporters and other uncleared individuals.  But this practice is not explicitly authorized in any official statement of classification policy.  In fact, with an exception for life-threatening emergencies, it is usually understood to be prohibited.

How can the obviously flexible practice and the seemingly prohibitive policy be reconciled? A newly updated report from the Congressional Research Service presents a close reading of the relevant rules and regulations in search of some wiggle room for authorized disclosures of classified information.

“Nothing in the Executive Order addresses an informal procedure for releasing classified information [to reporters].  E.O. 13526 section 1.1 provides that ‘[c]lassified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,’ but does not address what happens in the event of a disclosure that was in fact authorized,” the CRS report observes.

“By definition, classified information is designated as such based on whether its unauthorized disclosure can reasonably be expected to cause a certain level of damage to the national security. This may be read to suggest that disclosures may be authorized under such circumstances when no damage to national security is reasonably expected.”  (But under those circumstances, it might be noted, the information should be promptly declassified.)

The CRS report, written by legislative attorney Jennifer K. Elsea, continues:  “Nothing in the order provides explicit authority to release classified information that exists apart from the authority to declassify, but it is possible that such discretionary authority is recognized to release information outside the community of authorized holders without formally declassifying it.”  Indeed, this appears to be an accurate characterization of actual practice.

In any case, “there is little to stop agency heads and other high-ranking officials from releasing classified information to persons without a security clearance when it is seen as suiting government needs.”  Again, an accurate description– particularly since “the Attorney General has prosecutorial discretion to choose which leaks to prosecute.”

See The Protection of Classified Information: The Legal Framework, updated December 17, 2012.

Overall, “Executive Branch policy appears to treat an official disclosure as a declassifying event, while non-attributed disclosures [to reporters or others] have no effect on the classification status of the information,” the author writes.

“For example, the Department of Defense instructs agency officials, in the event that classified information appears in the media, to neither confirm nor deny the accuracy of the information.  The Under Secretary of Defense for Intelligence is then advised to ‘consult with the Assistant Secretary of Defense for Public Affairs and other officials having a primary interest in the information to determine if the information was officially released under proper authority.'”

But, the CRS report astutely notes, the relevant DoD regulation “does not clarify what happens in the event the disclosure turns out to have been properly authorized.”

And so it seems that the DoD regulation offers the conceptual space for an authorized disclosure of classified information.

(As if to provide an ironic illustration of the point, the Under Secretary of Defense for Intelligence himself — Michael Vickers — was reportedly cited in a referral to the Department of Justice for disclosing potentially restricted information concerning the pursuit of Osama bin Laden to filmmakers.  See “Bin Laden film leak was referred to Justice; leaker top Obama official” by Marisa Taylor and Jonathan S. Landay, McClatchy Newspapers, December 17, 2012.  In a statement last night, the Department of Defense confirmed that Mr. Vickers is a subject of a pending Inspector General investigation.  But it said the information in question was unclassified in its entirety.)

The CRS report naturally does not constitute an authoritative interpretation of the executive order, and in some respects it may be in error.  The report mistakenly states (at footnote 51) that the DOJ Media Leak Questionnaire that agencies must complete when a referring a leak for investigation is “apparently… part of a Memorandum of Understanding concluded between the Department of Justice and elements of the Intelligence Community.”  But a review of the Memorandum, described in Secrecy News earlier this week, shows that that supposition is incorrect.  The two are separate documents.  See “Crimes Reports and the Leak Referral Process,” Secrecy News, December 17, 2012.

Anti-leak legislation that is pending in the Senate would require executive branch officials to record all authorized disclosures of classified intelligence to the press, and to notify Congress when they occur (cf. sections 501 and 502 of Title V of the FY 2013 intelligence authorization bill).

These provisions, which may prove unworkable in practice, are presumably intended to enable Congress to publicly comment on classified intelligence matters with the same freedom that agency officials already do.  But the public interest concern raised by the notification provisions is that if they are strictly imposed, they may discourage all authorized disclosures of classified intelligence, yielding a net reduction in public access to government information.

Rising Economic Powers, and More from CRS

New and updated reports from the Congressional Research Service that Congress has directed CRS not to release to the public include the following.

Rising Economic Powers and U.S. Trade Policy, December 3, 2012

Unauthorized Aliens Residing in the United States: Estimates Since 1986, December 13, 2012

DOD Alternative Fuels: Policy, Initiatives and Legislative Activity, December 14, 2012

Federal Land Ownership: Current Acquisition and Disposal Authorities, December 13, 2012

The Controlled Substances Act: Regulatory Requirements, December 13, 2012

Imagery Declassification Preparations Continue

Intelligence community officials have been meeting with representatives of the National Archives to discuss the anticipated declassification and release of intelligence imagery from the KH-9 satellite dating between 1971 and 1984.

Officials have been negotiating the transfer of the original negatives from the KH-9 system and the provision of finding aids, according to a newly released but heavily redacted report from the National Geospatial Intelligence Agency, dated June 2012.

Multiple releases of declassified imagery are planned over the coming year “with final delivery of imagery scheduled for September 2013.”  See “Intelligence Imagery Set to be Disclosed in 2013,” Secrecy News, October 22, 2012.