A Look Back at Congressional Oversight of Intelligence, 2011-2012

Several nuggets of interest are presented in the latest biennial report from the Senate Select Committee on Intelligence, summarizing the Committee’s oversight activities in the 112th Congress:

*    The Director of National Intelligence abruptly cancelled a multi-year effort to establish a single consolidated data center for the entire Intelligence Community a year or so ago, in favor of a migration to cloud computing.

*    Under criticism that the number of intelligence contractor personnel has grown too high, too fast, intelligence agencies have been cutting the number of contractors they employ or converting contractors to government employees.  But some of those agencies have continued to hire additional contractors at the same time, resulting in net growth in the size of the intelligence contractor workforce.

*    A written report on each covert action that is being carried out under a presidential finding is provided to the congressional committees every quarter.

The March 22 report also provides some fresh details of the long-awaited and still unreleased Committee study on CIA’s detention and interrogation program.  That 6,000 page study, which was completed in July 2012 and approved by the Committee in December 2012, is divided into three volumes, as described in the report:

“I. History and Operation of the CIA’s Detention and Interrogation Program. This volume is divided chronologically into sections addressing the establishment, development, and evolution of the CIA detention and interrogation program.”

“II. Intelligence Acquired and CIA Representations on the Effectiveness of the CIA’s Enhanced Interrogation Techniques. This volume addresses the intelligence attributed to CIA detainees and the use of the CIA’s enhanced interrogation techniques, specifically focusing on CIA representations on how the CIA detention and interrogation program was operated and managed, as well as the effectiveness of the interrogation program. It includes sections on CIA representations to the Congress, the Department of Justice, and the media.”

“III. Detention and Interrogation of Detainees. This volume addresses the detention and interrogation of all known CIA detainees, from the program’s inception to its official end, on January 22, 2009, to include information on their capture, detention, interrogation, and conditions of confinement. It also includes extensive information on the CIA’s management, oversight, and day-to-day operation of the CIA’s detention and interrogation program,” according to the report’s description.

“I have read the first volume, which is 300 pages,” said CIA Director John O. Brennan at his February 7 confirmation hearing.  “There clearly were a number of things, many things, that I read in that report that were very concerning and disturbing to me, and ones that I would want to look into immediately, if I were to be confirmed as CIA Director.”

“It talked about mismanagement of the program, misrepresentations of the information, providing inaccurate information,” Mr. Brennan said then. “And it was rather damning in a lot of its language, as far as the nature of these activities that were carried out.”

[Clarification: Mr. Brennan’s reference to “the first volume” does not correspond to “Volume I” as described in the new Committee report. He was referring to the executive summary, findings, and conclusions of the report, which are bound separately from the body of the report.]

The Committee said it is awaiting comments on the study from the White House, the CIA and other executive branch agencies, and that it will then “discuss the public release of the Study.”

On February 15, 2013, Republicans who were members of the Committee in the last Congress formally filed dissenting comments opposing the study and its conclusions, the report said.

For its first couple of decades, the Senate Intelligence Committee held that “even secret activities must be as accountable to the public as possible,” as Sen. Daniel Inouye stated in the Committee’s first biennial report in 1977, and that “as much information as possible about intelligence activities should be made available to the public,” as Senators Richard Shelby and Bob Kerrey wrote in the 1999 version of the report.

But in the past decade, the Committee seems to have reconceptualized its relationship with the public.  It no longer promises to make “as much information as possible about intelligence activities” available to the public.  The notion that “secret activities” could be “accountable to the public” is now evidently considered a contradiction in terms (although release of the report on CIA interrogation practices, if it ever came to pass, would nullify and transcend that contradiction).

Today, as the latest report states, the Committee aims merely “to provide as much information as possible to the American public about its intelligence oversight activities.”  (Intelligence Oversight Steps Back from Public Accountability, Secrecy News, January 2, 2013).

Even within the narrowed horizons to which it has limited itself, however, the report presents a rather attenuated, “skim milk” account of the Committee’s work. Judging from the new report, intelligence oversight consists of frequent briefings, followed by numerous “evaluations” and “reviews.”

The report provides no indication of any conflict between the Committee and the intelligence agencies. Consequently, there are no significant victories (though the successful passage of four consecutive intelligence authorization bills is a notable achievement), and no meaningful defeats.

At the Brennan confirmation hearing on February 7, Committee chair Sen. Dianne Feinstein said: “I have been calling, and others have been calling–the Vice Chairman and I–for increased transparency on the use of targeted force for over a year, including the circumstances in which such force is directed against U.S. citizens and noncitizens alike.”  And to its credit, the Committee conscientiously posed a pre-hearing question on classification reform to Mr. Brennan (which he deflected).

But the new report does not identify any such effort by Committee leadership to promote increased transparency on targeted killing during the past Congress.  It does not reference the failure to accomplish the declassification of Foreign Intelligence Surveillance Court opinions, as the Committee had been promised in 2011.  Nor does the report address the abuse of classification authority or cite what the President called “the problem of overclassification” at all.

Should the U.S. Encourage RoK and Japan to Make Plutonium Based Nuclear Fuels?

Next month, Secretary of State Kerry will visit South Korea and Japan.  High on the list of topics to be discussed in Seoul will be how to proceed with the renewal of the U.S.-RoK agreement on civilian nuclear cooperation, which will expire early in 2014. Currently, negotiations have bogged down over Seoul’s request that the U.S. permit it to chemically process U.S. nuclear fuel assemblies that already have been used in South Korean reactors to make new, plutonium-based nuclear fuels. What should U.S. policy toward South Korea and Japanese nuclear recycling ambitions be?  Should the U.S. treat South Korea as it does its other close East Asian security ally, Japan, and allow it to recycle U.S. origin spent fuel?

On Thursday, April 4, 2013, The Nonproliferation Policy Education Center (NPEC) will host a lunch seminar on Capitol Hill in Washington, DC, addressing these questions. Speakers include Dr. Frank Von Hippel, Professor of Public and International Affairs at Princeton University and Mr. William Tobey, Senior Fellow at the Belfer Center for Science and International Affairs at Harvard University.

For more information on the event or to RSVP, visit the event page on the NPEC website.

Call for Applications: Pacific Young Leaders on Disarmament Project

The Conference on Disarmament (CD) was established in 1979 as the international community’s single multilateral disarmament negotiating forum. The CD and its predecessors have negotiated a number of major multilateral arms control and disarmament agreements, including the Comprehensive Nuclear-Test-Ban Treaty. However, in recent years, the CD has been unable to make progress against its own schedule as a great debate over what to prioritize – counter-proliferation or disarmament – has divided its 65 members. This has led to new efforts to revitalize the CD so that it can move forward with its disarmament agenda.

PYL-D Poster

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FAS Roundup: March 25, 2013

U.S. Navy retires Tomahawk cruise missile, missile defense developments and much more.

From the Blogs

U.S. Navy Instruction Confirms Retirement of  Nuclear Tomahawk Cruise Missile: Hans Kristensen writes that although the U.S. Navy has yet to make a formal announcement that the nuclear Tomahawk land-attack cruise missile (TLAM/N) has been retired, a new updated navy instruction shows that the weapon is gone. The retirement of the TLAM/N completes a 25-year process of eliminating all non-strategic naval nuclear weapons from the U.S. Navy’s arsenal.

NASA Technical Reports Database Goes Dark: This week NASA abruptly took the massive NASA Technical Reports Server (NTRS) offline. Steven Aftergood writes that  though no explanation for the removal was offered, it appeared to be in response to concerns that export controlled information was contained in the collection.

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DoD Inspector General Has Unrestricted Access to Classified Info

A Department of Defense instruction issued on Friday reinforces the policy that the DoD Office of Inspector General (OIG) is to have full access to all records, including classified records, that it needs to perform its function, and that no DoD official other than the Secretary himself may block such access.

“The OIG must have expeditious and unrestricted access to all records…, regardless of classification, medium (e.g. paper, electronic) or format (e.g., digitized images, data) and information available to or within any DoD Component, and be able to obtain copies of all records and information as required for its official use once appropriate security clearances and access are substantiated for the OIG DoD personnel involved,” the instruction states. See “Office of the Inspector General of the Department of Defense Access to Records and Information,” DoD Instruction 7050.03, March 22, 2013.

By stressing that the Inspector General’s access is independent of a record’s classification, medium or format, this language elaborates and bolsters the text of a previous version of the instruction, which did not make those distinctions.

Furthermore, the new instruction specifies, “No officer, employee, contractor, or Service member of any DoD Component may deny the OIG DoD access to records.”  Only the Secretary of Defense may invoke a statutory exemption to limit IG access to certain intelligence, counterintelligence, or other sensitive matters, which he must then justify in a report to Congress.

As a result of these robust access provisions, the DoD Inspector General is well-positioned to conduct internal oversight not only of the Pentagon’s extensive classified programs, but also of the classification system itself, particularly since the Department of Defense is the most prolific classifier in the U.S. government.

In fact, the Inspector General of each executive branch agency that classifies national security information is now required by the Reducing Over-Classification Act of 2010 to evaluate the agency’s classification program.  Each Inspector General was directed “to identify policies, procedures, rules, regulations, or management practices that may be contributing to persistent misclassification of material.”

The first evaluation is due to be completed by September 30, 2013.  Vexingly, the Act did not provide a functional definition of “over-classification” or “misclassification.”  Therefore, the first hurdle that the IG evaluations must overcome is to determine the nature and the parameters of the problem of over-classification.

Privacy and Cloud Computing, and More from CRS

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

Cloud Computing: Constitutional and Statutory Privacy Protections, March 22, 2013

The National Broadband Plan Goals: Where Do We Stand?, March 19, 2013

U.S. Customs and Border Protection: Trade Facilitation, Enforcement, and Security, March 22, 2013

Itemized Tax Deductions for Individuals: Data Analysis, March 21, 2013

International Monetary Fund: Background and Issues for Congress, March 21, 2013

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, March 21, 2013

Former Presidents: Pensions, Office Allowances, and Other Federal Benefits, March 21, 2013

FAS Joins Emerging Threats Working Group

Appointment provides a unique opportunity for FAS to collaborate with NATO and other Euro-Atlantic states to better address the emerging security threats arising from science and technology breakthroughs.

The rapid pace of scientific discovery and technological innovation demands the redoubling of efforts by scientists, policymakers, non-governmental experts, and the business community to adapt to the security implications. That is why FAS is pleased to announce that Michael Edward Walsh, the Adjunct Fellow for Emerging Technologies and High-end Threats at the Federation of American Scientists (FAS), was recently named to the Partnership for Peace Consortium of Defense Academies and Security Studies Institutes (PfPC) Working Group on Emerging Security Challenges. Continue reading

CNN Publishes Map Based on FAS Research


FAS supplied the data for a new interactive web site published by CNN. The site enables you to get a quick overlook of the nuclear arsenals of the world’s nine nuclear weapon states. Check it out here.

Update (April 17, 2013): CNN told me that the site had just under 2 million page views, with average time spent of well over 3 minutes per visit. “That’s really good,” they said.

NASA Technical Reports Database Goes Dark

This week NASA abruptly took the massive NASA Technical Reports Server (NTRS) offline.  Though no explanation for the removal was offered, it appeared to be in response to concerns that export controlled information was contained in the collection.

“Until further notice, the NTRS system will be unavailable for public access. We apologize for any inconvenience this may cause you and anticipate that this site will return to service in the near future,” the NTRS homepage now states.

NASA Public Affairs did not respond yesterday to an inquiry about the status of the site, the reason for its suspension, or the timeline for its return.

NASA Watch and The Unwanted Blog linked the move to a statement from Rep. Frank Wolf on Monday concerning alleged security violations at NASA Langley Research Center.

“NASA should immediately take down all publicly available technical data sources until all documents that have not been subjected to export control review have received such a review and all controlled documents are removed from the system,” Rep. Wolf said.

In other words, all NASA technical documents, no matter how voluminous and valuable they are, should cease to be publicly available in order to prevent the continued disclosure of any restricted documents, no matter how limited or insignificant they may be.

“There is a HUGE amount of material on NTRS,” said space policy analyst Dwayne Day. “If NASA is forced to review it all, it will never go back online.”

Essentially, the mindset represented by Rep. Wolf and embraced by NASA fears the consequences of unauthorized disclosure more than it values the benefits of openness.  It is a familiar outlook that has wreaked havoc with the nation’s historical declassification program, and has periodically disrupted routine access to record collections at the National Archives, as well as online collections at the CIA, the Los Alamos technical report library, and elsewhere.

“I’d also note that a large amount of historical Mercury/Gemini/Apollo documents that were previously available at NARA Fort Worth is now apparently withdrawn due to ITAR [export controls],” said Dr. Day.

The upshot is that the government is not an altogether reliable repository of official records. Members of the public who depend on access to such records should endeavor to make and preserve their own copies whenever possible.


A Study of Public Mass Shootings, and More from CRS

Over the past thirty years, dozens of indiscriminate mass shootings in America have resulted in 547 deaths and an additional 476 injured victims, according to a new tabulation by the Congressional Research Service.

The new CRS report examines the phenomenon of mass shootings, like the December 2012 incident in Newtown, CT, and considers potential policy lessons for law enforcement, public health, and education.

The first step is to define the topic.  CRS says that public mass shootings occur “in relatively public places, involving four or more deaths–not including the shooter(s)–and gunmen who select victims somewhat indiscriminately.” Furthermore, the violence is not calculated to advance any political agenda or criminal scheme.

Using these criteria, CRS identified 78 public mass shootings that have occurred in the United States since 1983 resulting in 547 non-perpetrator deaths.

To place that figure in context, the CRS report notes the much larger dimensions of gun violence generally.  “It is important to caution the reader that, while tragic and shocking, public mass shootings account for few of the murders related to firearms that occur annually in the United States. According to the Federal Bureau of Investigation (FBI, the Bureau), in 2011, firearms were used to murder 8,583 people.”

The CRS report reviews a variety of remedial policy steps that could conceivably be taken to address public mass shootings.

But in a remarkable and telling omission, the report foregoes any discussion of potential restrictions on gun ownership or possession.  “This report does not discuss gun control and does not systematically address the broader issue of gun violence,” the report states in italics. See Public Mass Shootings in the United States: Selected Policy Implications, March 18, 2013.

The state of human rights in China and the ability of Congress to influence Chinese human rights policy are the subject of another new CRS report.

The report finds that “Ongoing human rights problems include excessive use of force by public security forces, unlawful detention, torture of detainees, arbitrary use of state security laws against political dissidents and ethnic groups, coercive family planning practices, persecution of unsanctioned religious activity, state control of information, and mistreatment of North Korean refugees.”

On the other hand, the CRS report said, “Amendments to the Criminal Procedure Law, which are to go into effect in 2013, reportedly provide for greater protections against torture and coerced confessions, expanded access to legal defense, longer trial deliberations, mandatory appellate hearings, more rigorous judicial review, and greater government oversight of the legal process.” See Human Rights in China and U.S. Policy: Issues for the 113th Congress, March 15, 2013.

An assessment of judicial reforms in Mexico and congressional efforts to support them are discussed in another new CRS report.

“Reforming Mexico’s often corrupt and inefficient criminal justice system is widely regarded as crucial for combating criminality, strengthening the rule of law, and better protecting citizen security and human rights in the country. Congress has provided significant support to help Mexico reform its justice system in order to make current anticrime efforts more effective and to strengthen the system over the long term.” See Supporting Criminal Justice System Reform in Mexico: The U.S. Role, March 18, 2013.

Other brand new CRS reports that Congress has withheld from broad public release include the following.

The United Nations Educational, Scientific, and Cultural Organization (UNESCO), March 18, 2013

Financial Condition of Depository Banks, March 18, 2013

Noteworthy updates of previously issued reports include these:

The Trans-Pacific Partnership Negotiations and Issues for Congress, March 19, 2013

U.S.-China Military Contacts: Issues for Congress, March 19, 2013

Publishing Scientific Papers with Potential Security Risks: Issues for Congress, March 18, 2013