FAS Roundup: March 31, 2014

Hard to access declassified satellite images, Nuclear Security Summit, Air Force scandal and more.

From the Blogs

Intelligence Whistleblower Law Has Been Used Infrequently: Per a recently released report from the Inspector General of ODNI from 2009, the Intelligence Community Whistleblower Protection Act (ICWPA) has rarely been relied upon by intelligence agency whistleblowers. From 1999 to 2009, intelligence agency Offices of Inspector General (OIGs) said that only ten whistleblower complaints had been filed.

Security-Cleared Population Rises to 5.1 Million: The number of Americans who have been investigated and deemed eligible for access to classified information rose last year to a total of 5,150,379 as of October 2013. It was the fourth consecutive year of growth in the security-cleared population. Of the 5.1 million persons who were found eligible for access to classified information, 60% had access in fact.

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Missing the Open Source Center / World News Connection

The decision by the Central Intelligence Agency to terminate public access to its translations of foreign news reports at the end of 2013 continues to reverberate among frustrated former consumers.

The translations had been performed by the Open Source Center (OSC) at CIA, and marketed to subscribers through the NTIS World News Connection (WNC). Their absence has left a felt void, particularly since the daily products had been continuously available to the public (by paid subscription) since 1974.

“The first three months of 2014 have seen so many crucial international stories that current WNC Daily Report public access could have helped to illuminate,” said one disappointed subscriber. “OSC short-sightedness is mind-boggling.”

An effort to reverse the CIA move and to restore public access is beginning to take shape, but the prospects for success are uncertain.

Besides translations, the Open Source Center also produces original analysis of open sources. Much of this material is unclassified and could be released. Occasionally, some of it leaks.

In a marvelous piece described (but not disclosed) by Michael Rubin in Commentary on March 19, the Open Source Center reportedly performed a critical analysis of the music that was performed at the Sochi Olympics and Paralympics.

“The Open Source Center’s Russia analysts… observed that during the Olympic Games’ closing ceremonies, Russian authorities played an instrumental version of a song that called for Alaska’s return to Russia.”

A Wall Street Journal op-ed by Samantha Ravich and Carol Haave praised the value of open source intelligence and called for new investment in this area (“Nukes and ‘Snowden-Proof’ Intelligence,” March 17).

“Crafting new analytic methods for acquiring and exploiting… open-source scientific literature is crucial for understanding the pace, scale and scope of other countries’ nuclear-weapons aspirations,” they wrote, while open source intelligence “can often give us better insight into foreign leaders’ motivation and intent” than some other modes of collection and analysis.

But today’s CIA has proven to be an unreliable custodian of the open source intelligence enterprise, having deprived the public of access to its products for the first time in four decades. If there is ever to be a resurgence of open source intelligence, it probably ought to be managed and housed far from CIA.

ODNI Rethinks Secrecy and Openness in Intelligence

By leaking classified intelligence documents, Edward Snowden transformed public awareness of the scale and scope of U.S. intelligence surveillance programs. But his actions are proving to be no less consequential for national security secrecy policy.

“These leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy,” said Robert S. Litt, General Counsel at the Office of the Director of National Intelligence. He spoke at a March 18 Freedom of Information Day program sponsored by the Collaboration on Government Secrecy at American University Washington College of Law.

Mr. Litt made it clear that he did not approve of the Snowden leaks, which he said were unlawful and had “seriously damaged our national security.” Yet he stressed that the leaks have also prompted a reconsideration of previously accepted patterns of secrecy.

“We have had to reassess how we strike the balance between the need to keep secret the sensitive sources, methods and targets of our intelligence activities, and the goal of transparency with the American people about the rules and policies governing those activities.”

“One lesson that I have drawn from the recent events… is that we would likely have suffered less damage from the leaks had we been more forthcoming about some of our activities, and particularly about the policies and decisions behind those activities,” Mr. Litt said.  (Director of National Intelligence James Clapper made the same point to Eli Lake of the Daily Beast last month.)

“Going forward, I believe that the Intelligence Community is going to need to be much more forward-leaning in what we tell the American people about what we do,” Mr. Litt said. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected. And we need to move beyond the mindset of merely reacting to formal requests that we make information public, to a mindset of proactively making available as much information as we can, consistent with the need to protect sources and methods.”

“Greater disclosure to the public is necessary to restore the American people’s trust that intelligence activities are not only lawful and important to protecting our national security, but that they are appropriate and proportional in light of the privacy interests at stake. In the long run, our ability to protect the public requires that we have the public’s support,” Mr. Litt said.

While Mr. Litt’s remarks conveyed an overall message of beneficence, responsiveness, and good citizenship, they also had some peculiar features.

It is disconcerting to realize that the reassessment of classification policy described by Mr. Litt was not prompted by the diligent exercise of congressional oversight or by judicial review or by ordinary advocacy. Rather it was explicitly inspired by the Snowden leaks, which Mr. Litt described as “criminal.” The upshot is that leaks emerge as a uniquely powerful tool for shaping intelligence classification policy, while conventional checks and balances appear all but irrelevant by comparison.

Moreover, the purpose of the newfound push for greater transparency seems to be instrumental, not principled. In other words, it is driven by tactical considerations, not by statutory requirements or any other objective norm.

“I strongly believe that the best way to prevent the damage that leakers can cause is by increased transparency on our part,” Mr. Litt said. “Transparency can both lessen the incentive for disaffected employees to disclose our activities improperly, and provide the public appropriate context to evaluate leaks when they occur.”

That implies that what is needed is only as much transparency as it takes to achieve these imprecise and transient goals. It is a unilateral move that can be unilaterally reversed.

And then there is the fact that Mr. Litt’s rethinking of classification policy implies no new institutional reforms or externally-imposed constraints. Instead, the very same people who have classified too much up to now are suddenly expected to change course and to disclose more. It is not immediately clear how or why that would happen.

“There is no question that overclassification of information is a genuine problem,” Mr. Litt said. “So how do we deal with the problem of overclassification? I think that there are three principal steps we can take.”

“The first is to change the culture. We need high-level management emphasis on the problem of overclassification,” he said. To his credit, Mr. Litt has helped provide such emphasis.

“Second, we need to continue our efforts at proactive transparency– at reviewing information that we have historically protected to see whether, in fact, the overall public interest would better be served by releasing the information.” Significantly, however, he refrained from providing specific performance goals or benchmarks by which future progress could be measured.

“Finally, I think that those in the agencies who are responsible for responding to FOIA requests, and who are representing the government in FOIA litigation, need to look critically at all potentially responsive documents that are classified,” Mr. Litt said. “We should focus not on whether we can protect information, but whether we should.”

This is an interesting formulation. Most FOIA officers do not have authority to declassify records, and the adversarial nature of the FOIA process is rarely conducive to self-critical analysis of established agency policies even by more senior officials. But sometimes it is.

In 1997, the Federation of American Scientists filed suit against the CIA for release of the intelligence budget total for that year. The CIA ultimately decided that it could not defend its position of classifying the figure, according to an internal draft statement that was prepared for DCI George Tenet and released by the Clinton Library just last week.

“In order to defend this lawsuit,” the Tenet statement read, “I, as head of the Intelligence Community, would have had to sign a declaration to the court that release of the figure in question could cause serious damage to the national security. I found that, in good conscience, I could not attest to that statement.”

But such judgments are fluid and can be fleeting. Two years later, in response to another lawsuit for the 1999 budget figure, Director Tenet had no trouble declaring under oath that “Disclosure of… the total appropriation reasonably could be expected to cause damage to the national security in several ways.”

So spontaneous gestures of openness and transparency, as welcome as they may be, are imperfect substitutes for systemic change and external accountability.

News organizations have now released some 1,300 pages of classified records leaked by Edward Snowden, according to a tally by cryptome.org.  In response, US intelligence agencies have declassified and disclosed approximately twice that many.

“Our commitment to increased transparency will continue,” Mr. Litt said.

CIA’s Refusal to Release Softcopy Records Challenged in Court

Even when the Central Intelligence Agency possesses a releasable document in a softcopy format, the Agency typically refuses to release the softcopy version in response to Freedom of Information Act requests, and insists on providing a hardcopy version of the document instead.

A federal judge said last week that that may be a violation of law.

The issue arose in a FOIA lawsuit seeking electronic copies of 419 articles from the in-house CIA journal Studies in Intelligence. The lawsuit was brought by Jeffrey Scudder, an information technology specialist who has worked in the intelligence community for 23 years.

Mr. Scudder told the court that he has detailed knowledge of CIA information systems and capabilities. In his FOIA requests, he was able to inform the CIA FOIA staff “as to where within the [CIA] computer systems the electronically stored documents [that he is requesting] are located.”

However, CIA refused to release the documents in the requested electronic format. Instead, the Agency proposed to print them out and to release them only in hard copy, ostensibly for security reasons. But this practice may be inconsistent with the requirements of the FOIA.

“Congress anticipated that recalcitrant agencies would resist being responsive to requesters’ format choices,” wrote Judge Beryl A. Howell of the DC District Court last week, and so Congress required agencies to make “reasonable efforts” to accommodate requesters’ preferences.

“Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard.”

“The defendant [CIA] avers that if it were ordered to honor the plaintiff’s [FOIA] request [for soft copy records], it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media,” Judge Howell summarized.

In fact, she wrote in her March 12 opinion, “Under this Rube-Goldbergian process, the same document, even if unclassified, must be printed from the defendant’s classified system in paper form at least twice…, and rescanned into the same classified system at least twice….”

Not only that, but CIA would charge the requester extra for its trouble. “As a result of this process, the defendant [CIA] asserts that the cost of electronic production to the plaintiff would be higher than that of producing the records in paper format, since the defendant would incur all of the costs associated with the paper production as well as the additional costs of re-scanning the printed responsive records, and the cost of any removable media provided to the plaintiff.”

But all of that is ridiculous, said Mr. Scudder, who contended that CIA is attempting to “frustrate [the] core purpose [of the FOIA] through administrative gimmicks designed to impose unreasonable financial burdens upon requesters.”

“The only reason CIA does not produce electronic versions of documents responsive to FOIA requests is that they choose not to do so,” said attorney Mark S. Zaid, who represents Mr. Scudder. “There is no technical reason to prevent it.”

Crucially, Judge Howell determined that “A FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

Judge Howell found that CIA’s understanding of its legal obligations and of the role of the Court was “incorrect” in various respects, and she concluded that several of its factual assertions were materially disputed.

“The plaintiff [Mr. Scudder] has, for example, alleged that he has personally used the defendant’s classified system to create a PDF file, something the defendant has stated is impossible,” Judge Howell noted.

In view of the unresolved factual disputes, and considering that “both parties allege bad faith on the part of the other,” Judge Howell refused to grant summary judgment to either side.

Instead, she granted Mr. Scudder’s motion for discovery, and the case will proceed to trial.

While the substance of the case concerns CIA’s information and FOIA practices, the Department of Justice that made its own independent decision to defend CIA’s handling of the Scudder FOIA request.  The skeptical comments voiced by Judge Howell may be understood as an implicit criticism of that Justice Department decision.

This week is Sunshine Week, an annual celebration of open government values. As it happens, however, the federal government is closed today due to snow.

U.S. Military Given Secret “Execute Order” on Cyber Operations

Last June, the Chairman of the Joint Chiefs of Staff issued a classified “execute order” to authorize and initiate a military operation.

The nature, scope and duration of the military operation could not immediately be determined — even the title of the order is classified — but it evidently pertains to the conduct of military cyberspace activities.

The existence of the previously undisclosed execute order was revealed last week in a new Air Force Instruction.

“Classified processes governing C2 [command and control] of AF [Air Force] offensive and defensive cyberspace operations conducted by AF Cyber Mission Forces are addressed in a classified CJCS [Chairman, Joint Chiefs of Staff] Execute Order (title classified) issued on 21 Jun 13,” said Air Force Instruction 10-1701, entitled “Command and Control (C2) for Cyberspace Operations,” dated 5 March 2014.

An execute order goes beyond planning or preparation for conflict, and represents the commencement of a military operation.

The formal definition of an execute order (or EXORD) is “an order issued by the Chairman of the Joint Chiefs of Staff, at the direction of the Secretary of Defense, to implement a decision by the President to initiate military operations,” according to the official Department of Defense Dictionary of Military and Associated Terms (JP 1-02).

“Execution begins when the President decides to use a military option to resolve a crisis,” according to Joint Publication 5-0 on Joint Operation Planning. “Only the President or SecDef can authorize the CJCS to issue an execute order (EXORD).

“Execution continues until the operation is terminated or the mission is accomplished.”

“The CJCS-published EXORD defines the unnamed day on which operations commence or are scheduled to commence (D-day) and the specific time an operation begins (H-hour) and directs execution of the OPORD [operation order].”

“The CJCS’s EXORD is a record communication that authorizes execution of the COA [course of action] approved by the President or SecDef and detailed in the supported commander’s OPORD,” explained JP 5-0.

In response to questions from the Senate Armed Services Committee, Vice Adm. Michael S. Rogers, the nominee for Commander, US Cyber Command (and Director, NSA), said that “Geographic combatant commanders already have authority to direct and execute certain Defensive Cyberspace Operations (DCO) within their own networks.”

Judging from the new Air Force Instruction, however, the June 2013 execute order extends to offensive cyberspace operations as well.

All or most execute orders naturally start out as classified documents. But sooner or later, they are declassified.

A March 2011 execute order for Libya Contingency Operations can be seen here.

A January 1991 execute order for Operation Desert Storm, incongruously signed “Warm Regards, Colin Powell,” is here.

A rare reference to another currently classified execute order appeared in a paper published in Joint Force Quarterly (issue 69, April 2013, p. 53): “In compliance with the guidelines outlined in the Global Response Force Execute Order, JCSE [Joint Communications Support Element] maintains an alert-postured force that can deploy and have its communications packages fully operational within hours of notification for an emerging requirement.” That execute order dates from September 2012, and is classified Secret.

The Senate Armed Services Committee asked Adm. Rogers whether there was a need for greater transparency concerning “the nature of cyber warfare, and the balance between offensive and defensive capabilities.”

Adm. Rogers replied: “I believe the recent disclosures of a large portion of our intelligence and military operational history may provide us with [an] opportunity to engage both the American public and our international partners in discussion of the balance of offense and defense, the nature of cyber warfare, norms of accepted and unacceptable behavior in cyberspace, and so forth.”

“As cyberspace matures as a warfighting domain, I believe our classification policies will also evolve to support growing domestic and international partnerships and relationships,” Adm. Rogers wrote.

Some Legislators Seek More Intelligence Budget Disclosure

Now that annual disclosure of the intelligence budget total has become routine, some legislators are seeking more transparency on intelligence spending.

As anticipated, the requested U.S. intelligence budget for Fiscal Year 2015 that was submitted to Congress this week fell below the current year’s level and continued a decline from the post-9/11 high that it reached in FY 2010.

The “base” funding request for the National Intelligence Program (NIP) for FY 2015 was $45.6 billion, while the base funding request for the Military Intelligence Program (MIP) was $13.3 billion. (“Base” funding does not include funding for “overseas contingency operations,” which is to be requested later in the year.)

By comparison, the base funding request for the NIP in FY 2014 was $48.2 billion, and the base funding request for the MIP was $14.6 billion. Additional data on intelligence budget appropriations can be found here.

An unclassified summary of the FY 2015 National Intelligence Program budget request (that was included in the overall budget request) implied that the publication of the request was a voluntary act of transparency.

“Reflecting the Administration’s commitment to transparency and open government, the Budget continues the practice begun in the 2012 Budget of disclosing the President’s aggregate funding request for the NIP,” the summary said.

In fact, however, the publication of the NIP budget request is required by law, since it was included in the FY 2010 Intelligence Authorization Act by the Senate Select Committee on Intelligence (Public Law 111-259, section 601). An ODNI news release on the budget request correctly cited the legal requirement to publicly disclose the budget request figure.

On the other hand, there is no corresponding legal requirement for the Department of Defense to publish the budget request for the Military Intelligence Program. But DoD has done so voluntarily since 2012, a move that represents a genuine reduction in official secrecy by the Obama Administration.

Even so, dozens of Congressmen say that there is still too much secrecy in intelligence spending. The Intelligence Budget Transparency Act of 2014 (HR 3855), introduced by Rep. Cynthia M. Lummis (R-WY), would require disclosure of the total budget of each of the individual 16 agencies that make up the U.S. intelligence community.

“Writing checks without any idea of where the money is going is bad policy,” said Rep. Lummis in a January 14, 2014 release. “Disclosing the top-line budgets of each of our intelligence agencies promotes basic accountability among the agencies charged with protecting Americans without compromising our national security interests.”

“The top-line intelligence budgets for America’s 16 intelligence agencies are unknown to the American taxpayer and largely unknown to the Members of Congress who represent them,” added Rep. Peter Welch (D-VT), a co-sponsor of the bill. “It’s led to dubious policies, wasted money and questionable effectiveness. Requiring the public disclosure of top-line intelligence spending is an essential first step in assuring that our taxpayers and our national security interests are well served.”

Interestingly, the bill’s 59 congressional co-sponsors include a roughly equal number of Republicans and Democrats. Republican legislators have not previously been known to favor disclosure of individual agency intelligence budgets, with the exception of the late Sen. Arlen Specter, a former chair of the Senate Intelligence Committee, who once advocated release of the NRO budget total.

A February 12 letter to President Obama asking him to release the individual agency budget figures was signed by 62 members of Congress.

Many of the classified portions of the new Department of Defense budget request were tabulated in “Read the Pentagon’s $59 Billion ‘Black Budget'” by Brandy Zadrozny, The Daily Beast, March 6.

Disclosure of FISA Court Opinions: Legal Issues (CRS)

Could Congress legally compel the executive branch to disclose classified opinions of the Foreign Intelligence Surveillance Court?  Maybe not, a new analysis from the Congressional Research Service concludes.

The CRS report — entitled “Disclosure of FISA Court Opinions: Select Legal Issues” — has little to do with FISA Court opinions in particular. It is an analysis of the overlapping authorities of the three branches of government to classify or disclose national security information.

“The central issue is the extent to which Congress may regulate control over access to national security information, including mandating that the executive branch disclose specific materials — a question not definitively resolved by the courts,” the report says.

This is not a new question, but it is usefully reviewed and summarized by the CRS report.

The issue arises because “The executive branch has argued that the Commander-in-Chief clause bestows the President with independent power to control access to national security information. As such, according to this line of reasoning, Congress’s generally broad ability to require disclosure of agency documents may be constrained when it implicates national security.”

Although no statute regulating classification has ever been ruled unconstitutional, “Congress’s power to compel the release of information held by the executive branch might have limits,” CRS said. “There may be a limited sphere of information that courts will protect from public disclosure,” just as they have exempted properly classified information in FOIA cases, and state secrets in other cases.

The unsurprising bottom line is that “proposals that allow the executive branch to first redact information from FISA opinions before public release appear to be on firm constitutional ground.” However, the CRS report said, “a proposal that mandated all past FISA opinions be released in their entirety — without any redactions by the executive branch — might raise a separation of powers issue.”

All of this may seem academic and politically inapt since there are no active proposals in Congress to compel public release of FISA court opinions that are completely unreviewed or unredacted.

In fact, Congress has arguably been derelict in failing to press more assertively for release of legal rulings of the FISA court, and for disclosure of the general contours of the telephony bulk collection program. Had Congress forcefully required the publication of such information, much of the angst and turmoil of the past nine months that resulted from the Snowden disclosures might have been avoided.

The new CRS report has a couple of other noteworthy omissions.

It does not mention the authority claimed by the congressional intelligence committees to publicly disclose classified information without executive branch approval. (See Section 8 of Senate Resolution 400 of the 94th Congress, 1976.)  Though this authority has never yet been exercised, it remains available in principle.

The report also does not mention some recent instances when Congress has successfully compelled executive branch declassification while also navigating around potential constitutional obstacles.

So, for example, the Senate Intelligence Committee enacted a requirement in the FY 2010 Intelligence Authorization Act (Section 601) that the executive branch must disclose the annual budget request for the National Intelligence Program when the annual budget is submitted. Previously, the intelligence budget request had always been classified information. To save constitutional appearances and assuage the concerns of executive branch lawyers, the Act did include a provision for the President to waive the requirement on national security grounds — but he has never yet done so.

Last week, the Electronic Privacy and Information Center obtained copies of declassified Justice Department reports on the use of pen registers and trap and trace devices under the Foreign Intelligence Surveillance Act from 2000 to 2013.

Inspector General Blasts NRO Secrecy Practices

The National Reconnaissance Office (NRO), the agency that builds and operates U.S. intelligence satellites, frequently makes mistakes when it classifies national security information, according to an assessment performed last year by the NRO Inspector General.

“From the classified documents we reviewed at NRO headquarters, 114 of 134 documents contained classification errors,” the IG report said.

Agency classification officials “lack sufficient knowledge of classification principles and procedures necessary to perform their duties,” the NRO Inspector General found. “One OCA [original classification authority] had almost no knowledge of his responsibilities.”

“Because of the lack of full compliance in multiple areas, the NRO is susceptible to the risk of persistent misclassification,” the IG said.

The IG report was performed in response to the “Reducing Over-Classification Act of 2010,” which required the Inspectors General of all agencies that classify information to evaluate their classification programs. A copy of the report was obtained under the Freedom of Information Act by the GovernmentAttic.org web site.

Most of the classification errors discovered by the Inspector General are administrative rather than substantive. Like other IG evaluations conducted under the Reducing Over-Classification Act, the NRO Inspector General review does not allow for the possibility that an agency could be in full compliance with classification rules and nevertheless be overclassifying information.

Instead, the IGs have focused on errors in marking documents, failures to specify proper authorities or to cite responsible officials, and similar defects in conformity with established rules.

Still, these are not necessarily trivial failures. Between 2005 and 2012, for example, NRO improperly exempted records from automatic declassification at 25 years when it had no authority to do so, the IG said.

The Inspector General reviewed NRO classification guides (which dictate the classification levels of particular items of information) “and we found that all but one of the 62 guides had classification errors.”

Puzzlingly, the Inspector General also reported that NRO “has not conducted timely reviews [of] its security classification guides” and that “three of the 62 SCGs had not been reviewed within five years.”

This finding appears to be inconsistent with a 2012 NRO report which affirmed that all of its security classification guides — of which there were 67, not 62 — had been reviewed in response to the Fundamental Classification Guidance Review. An explanation of the inconsistency was not immediately available.

NRO officials “non-concurred” with the findings and conclusions of the Inspector General report.

The report contains “numerous sensationalized, exaggerated and misleading statements,” wrote A. Jamieson Burnett, the director of the NRO Office of Security and Counterintelligence.

Other previously disclosed IG reports issued in response to the Reducing Over-Classification Act addressed classification programs in the Department of Defense, Department of Justice, Department of Homeland Security, and the Environmental Protection Administration.

Perhaps the biggest incentive for reducing overclassification is the negative impact that unnecessary secrecy can have on government operations.

“A major impediment to operating with international partners is the U.S. tendency to classify information, complicating the crucial flow of important data to our allies as well as within and among our own Services,” according to a new article in Joint Force Quarterly, which is published by National Defense University for the Chairman of the Joint Chiefs of Staff.

“The U.S. military needs to […] try harder to communicate in the unclassified domain,” wrote Jeffrey M. Shaw in his article “Putting ‘A Cooperative Strategy for 21st Century Sea Power’ to Work,” Joint Force Quarterly, January 2014.

DNI Clapper: Transparency is the Way Forward

The primary lesson that emerges from the unauthorized disclosures of classified intelligence information by Edward Snowden is that U.S. intelligence agencies must be more transparent in their operations, said Director of National Intelligence James R. Clapper yesterday.

“The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can,” DNI Clapper told the Senate Intelligence Committee.

“With greater transparency about these intelligence programs the American people may be more likely to accept them,” he said, promising “further declassification.”

Another possibility, he acknowledged, is that even with greater transparency the American people will choose not to accept certain kinds of intelligence programs.

“If dealing with reduced capacities is what we need to ensure the faith and confidence of the American people and their elected representatives, then we in the intelligence community will work as hard as we can to meet the expectations before us,” DNI Clapper said.

Already, the Snowden disclosures have caused “profound damage” to U.S. intelligence, the DNI said.

“What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners.”

“Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed to prevent even more damage to U.S. security,” the DNI said.

The use of the word “accomplices” appeared to suggest that the DNI views the journalists who possess and report on the Snowden documents as Snowden’s partners in crime, and even as criminals themselves.

“Is it now the official view of the Obama administration that these journalists and media outlets are ‘accomplices’ in what they regard as Snowden’s crimes? If so, that is a rather stunning and extremist statement,” wrote Glenn Greenwald, who first reported on the Snowden releases last June.

But though it has never yet figured in an actual prosecution, the issue of criminal liability for journalists in this area is embedded in the law.

It’s true that there is no general legal prohibition on publication of classified information. (Congress passed such a statute in 2000, but President Clinton vetoed it.)

But there is a clear and specific prohibition on the willful disclosure of classified communications intelligence information. And that prohibition, in 18 U.S.C. 798, extends also to anyone who “publishes” such information.

What is “stunning,” or at least noteworthy, is that the Obama Administration has apparently made a strategic decision not to attempt to enforce this provision of the law against publishers of the Snowden documents. (It was invoked against Snowden himself as one of the three counts in a June 14, 2013 criminal complaint.)

It seems that even what the DNI called “the most massive and most damaging theft of intelligence information in our history by Edward Snowden and the ensuing avalanche of revelations published and broadcast around the world” is not sufficient to trigger the use of the criminal statute against publishers of classified communications intelligence. So that provision is effectively a dead letter, even if it still finds a faint echo in the DNI’s testimony before Congress.

Privacy Board Urges New Criteria for Secrecy

The public controversy that erupted over NSA bulk collection of Americans’ telephone records was a clear sign, if one were needed, that the boundaries of government secrecy had been drawn incorrectly, and that the public had been wrongly denied an opportunity to grant or withhold its consent in such cases.

To remedy this systemic problem, the Privacy and Civil Liberties Oversight Board said in a new report yesterday that the government needs to develop new criteria for secrecy and openness.

“The Board urges the Administration to commence the process of articulating principles and criteria for deciding what must be kept secret and what can be released as to existing and future programs that affect the American public” (Recommendation 11).

But translating this imperative into practice remains a challenge.

“Generalities about the value of transparency do not go far in answering the hard questions of what can be disclosed and what must remain secret,” the Board properly observed. “Instead, progress may best be achieved by considering specific problems,” such as intelligence surveillance policy.

With that in mind, the Board sketched out illustrative examples and options that could guide future declassification and disclosure decisions. Experience has already shown, the report said, that “it is possible to describe [intelligence] practices and policies publicly, even those that have not been otherwise leaked, without damage to national security or operational effectiveness.”

More specifically, the Board report said the Administration should start to address transparency with a “public articulation of the legal authorities under which it conducts surveillance affecting Americans,” the very point at which the current controversy began (Recommendation 12).

However, a minority of the Board did not endorse this particular recommendation. “I do not believe that an intelligence program or legal justification for it must necessarily be known to the public to be legitimate or lawful,” said dissenting Board member Rachel Brand.

The lack of Board unanimity on this and other points “really weakens its recommendations and undermines the role that we envisioned it would play,” said Sen. Susan Collins in the Wall Street Journal.

But from another point of view, the divided views of Board members are a strength, not a weakness. The fact that thoughtful people reviewing the same factual record can arrive at divergent conclusions is instructive, and the split may accurately reflect larger divisions among members of the public. Advocates and editorial writers seem to be strangers to doubt, but others may not be. Confronting the opposing views of Board members, readers are invited and compelled to think for themselves.

Overall, the Privacy and Civil Liberties Oversight Board demonstrated its utility as a public oversight body, helping to fill the void left by congressional and judicial oversight that sometimes seems cursory by comparison.

The Board (majority) presented an incisive critique of current surveillance practices that is lucid and nuanced, clarifying the legal and policy issues involved without hyperbole or vitriol.

“The Board concludes that Section 215 [of the USA Patriot Act] does not provide an adequate legal basis to support this [bulk collection] program. Because the program is not statutorily authorized, it must be ended,” the report said.

Even in the absence of overt abuse, it was argued, the mere collection of American telephone records in bulk is an infringement on privacy and other civil liberties. “Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”

While there are procedures in place to limit the official use of such records, “in our view they cannot fully ameliorate the implications for privacy, speech, and association that follow from the government’s ongoing collection of virtually all telephone records of every American. Any governmental program that entails such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone records program conducted under Section 215 meets that standard.”

If the bulk collection program were demonstrably effective in saving lives, the report implied, then certain infringements on privacy might well be warranted. But that is not the case, the Board majority concluded.

“Given the limited value this [bulk collection] program has demonstrated to date… we find little reason to expect that it is likely to provide significant value, much less essential value, in safeguarding the nation in the future,” the Board report said.

Of course, that is a judgment, not an empirical fact. Others can and do disagree, including two of the members of the Board itself.

“Whether the [bulk collection] program should continue boils down to whether its potential intrusion on privacy interests is outweighed by its importance to protecting national security,” wrote Rachel Brand, precisely. This too is a judgment, and it explains why disagreement over the program persists.

But on the need to rethink current secrecy practices, at least, there is consensus, among members of the Board and beyond.

John C. Inglis, in his final days as deputy director of the National Security Agency, told National Public Radio that he now realized that existing public disclosure practices were “insufficient.”

Did he wish NSA had made an effort years ago to disclose the bulk collection program in a way that the public could debate it?  “In hindsight, in hindsight,” he told NPR’s Steve Inskeep.

The task now is to apply the lessons of hindsight to present-day national security secrecy policies, and not only with regard to NSA surveillance activities.

“What we’re going to have to do as a nation, and particularly as an agency, is to rebalance, right, the balance that we have struck between security, secrecy and transparency,” Mr. Inglis said, in an NPR interview published January 10.