ODNI Revises Costly Declassification Rule

As promised, the Office of the Director of National Intelligence (ODNI) last week formally withdrew a new rule on requesting declassification of classified ODNI records after receiving public complaints that it would have imposed onerous costs on requesters. A revised rule was then issued.

“ODNI received comments regarding the fee provisions [with] the recommendation that those provisions be withdrawn and replaced with fee provisions comparable to those in ODNI’s Freedom of Information Act program,” ODNI said in an April 22 Federal Register notice. (Comments to that effect from the Federation of American Scientists are here; comments submitted by Openthegovernment.org are here.)

“ODNI agrees and therefore is withdrawing its direct final rule.”

A revised rule with amended fee provisions was published in the Federal Register today.

Under the revised rule:

*    photocopying charges would be 10 cents per page instead of 50 cents per page;

*    fees would be waived whenever costs incurred were $10 or less;

*    and the revised rule now allows for a public interest waiver of fees when “the disclosure is likely to contribute significantly to the public understanding of the operations or activities of the United States Government and is not primarily in the commercial interest of the requester.”

DoD Directs “Equal Attention” to Secrecy, Declassification

Declassification of national security information should be pursued on a par with classification, according to a Department of Defense directive that was reissued yesterday.

“Declassification of information will receive equal attention as the classification of information so that information remains classified only as long as required by national security considerations,” said DoD Instruction 5200.01, dated April 21 and signed by Marcel Lettre, the Under Secretary of Defense for Intelligence.

This seems commendable as an aspirational goal, but it is hard to consider it an accurate description of existing DoD policy. (The “equal attention” language has been in force since 2008, when it appeared in a prior iteration of the Instruction.)

Nor is it clear what DoD means by “equal attention” in this context. Equal resources devoted to classification- and declassification-related activities? Surely not. Equal numbers of personnel engaged in classification and declassification? No. Equivalent quantities of records being classified and declassified? Also no.

Still, in a rules-based bureaucracy like the Pentagon, a directive from the Under Secretary of Defense has some intrinsic weight and cannot be entirely dismissed.

It is also noteworthy that the Instruction goes beyond requiring some sort of equilibrium between classification and declassification and calls for an actual reduction in the amount of classified material: “The volume of classified national security information and CUI [controlled unclassified information], in whatever format or media, will be reduced to the minimum necessary to meet operational requirements.”

In a new provision, the Instruction emphasizes the need to address unauthorized disclosures of classified information:

“Commanders and supervisors at all levels must consider and, at their discretion, take appropriate administrative, judicial, contractual, or other corrective/disciplinary action to address negligent discharges of classified information commensurate with the seriousness of the security violation.”

A “negligent discharge” sounds like something that is frowned upon in the Book of Leviticus. But it is actually an officially-sanctioned DoD term for certain types of unauthorized disclosures. An August 14, 2014 memorandum from the Deputy Secretary of Defense explains its origin:

“A negligent spillage or unauthorized disclosure of classified information is categorized as a Negligent Discharge of Classified Information (NDCI), which is based on the familiar firearms term ‘Negligent Discharge,’ to connote its seriousness.”

U.S. Declassifies Highly Enriched Uranium Inventory

Corrected below

The White House announced last week that the U.S. inventory of highly enriched uranium (HEU) as of September 2013 has been declassified.

“The newly declassified information shows that, from 1996 to 2013, U.S. HEU inventories decreased from 740.7 metric tons to 585.6 metric tons.  This reflects a reduction of over 20 percent,” according to a March 31 White House fact sheet.

The White House added that “This announcement marks the first time in fifteen years that the United States has declassified and released information of this kind.”

But that assertion is in error.

In 2006, the Department of Energy declassified and released data on US HEU inventories dating from 2004. See Highly Enriched Uranium Inventory: Amounts of Highly Enriched Uranium in the United States, Department of Energy, January 2006.

Moreover, the DOE report from a decade ago shows that almost all of the 20% reduction in HEU inventories cited by the White House last week had already been accomplished by 2004, when the HEU total was 590.5 metric tons. Thereafter, in the period between 2004 and 2013, the total HEU inventory evidently declined by only about 5 additional metric tons (less than 1%) to 585.6 metric tons. [See correction below.]

But the White House added that “further reductions in the inventory are ongoing; the U.S. Department of Energy’s material disposition program has down-blended 7.1 metric tons of HEU since September 30, 2013, and continues to make progress in this area.”

The latest disclosure was made to enhance nuclear transparency so as to encourage reciprocal disclosures by other nuclear weapons states.

“The U.S. commitment to sharing appropriate nuclear security-related information has also been demonstrated by recent actions such as the declassification of information on the U.S. nuclear weapons stockpile and transparency visits by officials from non-nuclear weapons states to Los Alamos and Sandia National Laboratories,” the White House said. “These actions show that countries can increase transparency without revealing sensitive information.”

Correction I mistakenly wrote that the inventory of HEU in 2004 was 590.5 Metric Tons. But that number was the amount of U-235. (I read the 2006 DOE report wrong.) The actual inventory of HEU at the time was 686.6 Metric Tons.

Therefore, between 2004 and 2013 there was a reduction in the U.S. HEU inventory of 101 Metric Tons. Thanks to Prof. Alan Kuperman for pointing out the error.

ODNI Will Revise Declassification Fee Policy

In response to criticism of the hefty fees that could be charged to public requesters in its new Mandatory Declassification Review (MDR) rule, the Office of the Director of National Intelligence has agreed to modify the rule.

The revised rule will adopt the more flexible and forgiving approach used in ODNI’s Freedom of Information Act (FOIA) program.

“We will pull back the MDR rule and swap out the fee structure there for the fee structure in the FOIA policy,” said Jennifer Hudson, director of the ODNI Information Management Division.

This represents a substantial change. In comments on the rule submitted yesterday by the Federation of American Scientists, we recommended such a change. We noted that the MDR fee schedule was inconsistent in several respects with existing law and policy and, in particular, that it differed from the cost recovery procedures in ODNI’s FOIA program:

*     The MDR rule would charge 50 cents per page for photocopying, but ODNI charges only 10 cents per page for responses to FOIA requests.

*     The MDR rule would have made requesters responsible “for paying all fees,” but ODNI always waives costs of $10 or lower under FOIA.

*     The MDR rule did not provide for discretionary fee waivers for public interest or other reasons, but the FOIA policy does.

Now all of these discrepancies will be eliminated. Perhaps most significantly, “We will also make sure that there is room [in the MDR process] for discretion in charging fees,” Ms. Hudson said in an email message. “I’m sure you know from looking at our FOIA reports that we have exercised our discretion to not charge fees quite a bit in the past.”

She noted, however, that “The search/review charges are identical” under the proposed MDR rule and under FOIA. “FOIA just breaks [the charges] down into 15 minute increments where the MDR rule is by the hour. The end result is the same.”

“At the end of the day, I don’t think it will make as much of a difference as people think,” she said.

ODNI Erects Cost Barrier to Mandatory Declassification

Updated below, twice

Anyone who submits a mandatory declassification review request to the Office of the Director of National Intelligence seeking release of classified records “shall be responsible for paying all fees” resulting from the request, according to a new ODNI regulation.

And those fees are considerable.

A search for a requested document costs from $20-$72 per hour. Document review runs $40-$72 per hour. And photocopying costs fifty cents per page, the new ODNI regulation said. It was published in the Federal Register on Friday, with a request for public comments.

The mandatory declassification review (MDR) process was established by executive order 13526 to permit requests for declassification of information that no longer meets the standards for national security classification. The executive order’s implementing directive states that fees may be charged for responding to MDR requests for classified records.

But the proposed ODNI fees seem extravagant on their face. No commercial enterprise charges anything close to fifty cents to photocopy a single page. Neither do most of ODNI’s peer agencies.

The Department of Defense permits (though it does not require) DoD agencies to charge fees for search, review and reproduction (pursuant to DoD Manual 5230.30-M). But the DoD schedule of fees is well below the proposed ODNI rate.

Instead of fifty cents per page, DoD charges thirteen cents. Instead of up to $72 per hour for search and review, DoD charges no more than $52.60 per hour. ODNI wants $10 for a CD, but DoD asks only $1.25. (See DoD 7000.14-R, Volume 11A, Chapter 4, Appendix 2, Schedule of Fees and Rates, at page 4-13).

And while ODNI would make requesters liable for “all fees,” DoD says that “Fees will not be charged if the total amount to process your request is $30.00 or less.”

Similarly, at the Department of State, “Records shall be duplicated at a rate of $.15 per page.”

In a 2011 rule, the Central Intelligence Agency did mandate a fifty cent per page photocopy fee for MDR requests, as well as a $15 minimum charge. But the CIA policy was suspended in response to public criticism and a legal challenge from the non-profit National Security Counselors. That challenge is still pending.

“There is nothing unusual about these [search and review] fees,” CIA told a court in 2014 in response to the legal challenge. “And the reproduction costs are similar to those employed by other agencies.” CIA noted that a National Archives regulation sets reproduction costs as high as 75 cents per page. (Last year it reached 80 cents, although a self-service copier is sometimes available for 25 cents per page.)

Furthermore, CIA said in 2014, “neither set of costs reimburses the CIA for the full cost of providing the declassification review service to the requester.”

Public comments on the new ODNI rule are due by March 28.

Update, 3/3/16: FAS comments on the ODNI rule are available here.

Update, 3/4/16: ODNI agreed to amend its MDR fee structure and to replace it with the same fee policy used in its Freedom of Information Act program.

“Fact of” Nuclear Weapons on Okinawa Declassified

Updated below

The Department of Defense revealed this week that “The fact that U.S. nuclear weapons were deployed on Okinawa prior to Okinawa’s reversion to Japan on May 15, 1972” has been declassified.

While this is indeed news concerning classification policy, it does not represent new information about Okinawa.

According to an existing Wikipedia entry, “Between 1954 and 1972, 19 different types of nuclear weapons were deployed in Okinawa, but with fewer than around 1,000 warheads at any one time” (citing research by Robert S. Norris, William M. Arkin and William Burr that was published in 1999 in the Bulletin of the Atomic Scientists). As often seems to be the case, declassification here followed disclosure, not the other way around.

If there is any revelation in the new DoD announcement, it is that this half-century-old historical information was still considered classified until now. As such, it has been an ongoing obstacle to the public release of records concerning the history of Okinawa and US-Japan relations.

Because this information had been classified as “Formerly Restricted Data” under the Atomic Energy Act rather than by executive order, its declassification required the concurrence of the Department of Defense, the Department of Energy, and (in this case) the Department of State. Any one of those agencies had the power to veto the decision to declassify, or to stymie it by simply refusing to participate.

Instead, the information was declassified as a result of a new procedure adopted by the Obama Administration to coordinate the review of nuclear weapons-related historical material that is no longer sensitive but that has remained classified under the Atomic Energy Act by default. The new procedure had been recommended by a 2012 report from the Public Interest Declassification Board, and was adopted by the White House-led Classification Reform Committee.

Also newly declassified and affirmed this week was “The fact that prior to the reversion of Okinawa to Japan that the U.S. Government conducted internal discussion, and discussions with Japanese government officials regarding the possible re-introduction of nuclear weapons onto Okinawa in the event of an emergency or crisis situation.”

Such individual declassification actions could go on indefinitely, since there are innumerable other “facts” whose continued classification cannot reasonably be justified by current circumstances. A more systemic effort to recalibrate national security classification policy government-wide is to be performed over the coming year.

Update: The National Security Archive posted the first officially declassified document on nuclear weapons in Okinawa, which was released in response to its request. See Nuclear Weapons on Okinawa Declassified, February 19, 2016.

Streamlining Declassification: Imagery and Image Products

A 2014 memorandum from Director of National Intelligence James R. Clapper, released this week under the Freedom of Information Act, drew a new distinction between intelligence satellite images and the intelligence products that are derived from those images.

The subtle new distinction affects the classification and declassification of the two categories of information, and may help to facilitate the release of a growing volume of imagery-related material by US intelligence agencies.

The new policy affirms that original satellite images retain their privileged status as a subset of protected intelligence sources and methods that can only be declassified by the Director of National Intelligence (pursuant to executive order 12951). However, the declassification of intelligence products based on those images is now delegated to the Director of the National Geospatial-Intelligence Agency.

Adopting this distinction will mean “streamlining our procedures,” the DNI memo said, and “enabling the overall process to be more responsive to future Freedom of Information Act requests.”

See “Classification and Marking of Imagery Derived from Space-based National Intelligence Reconnaissance Systems,” memorandum from DNI James R. Clapper to NGA Director Robert Cardillo, November 12, 2014.

Whether the policy shift has already enabled more disclosure of intelligence imagery through the Freedom of Information Act is doubtful. We haven’t seen evidence of it.

But what is true is that the National Geospatial-Intelligence Agency has undertaken to provide an increasing amount of unclassified imagery and mapping products to the public, including online resources concerning the Arctic, the Nepal earthquake, and the Ebola outbreak, as well as various disaster relief packages. Though it is easy to take the availability of this material for granted, it shouldn’t be; an affirmative decision and something of a cultural shift by the intelligence community (or at least by NGA) was required in order to accomplish it.

The indiscriminate use of the term “intelligence sources and methods” to justify withholding of intelligence-related information from the public has long been a source of frustration and a cause for criticism.

The 1997 Moynihan Commission on secrecy said that “this very general language has come to serve as a broad rationale for declining to declassify a vast range of information about the activities of intelligence agencies” and that it “appears at times to have been applied not in a thoughtful way but almost by rote.”

The Commission recommended that the scope of the term be clarified so as to limit its application.

DNI Clapper’s 2014 memorandum on intelligence image products may be understood as a step in that direction.

In 1963, CIA Said It Had Copies of Soviet Spysat Images

In a newly disclosed memorandum from 1963, the Director of Central Intelligence advised the Secretary of State that the CIA had “good reproductions” of Soviet satellite imagery.

This puzzling remark appears to suggest a previously unrecognized capability of the CIA.

The declassified memo summarizes a July 3, 1963 telephone conversation between DCI John McCone and Secretary of State Dean Rusk. It was discovered by researchers David M. Barrett and Eric P. Swanson.

According to the memo, McCone said that the U.S. had “for some time tried to determine whether the Soviets were actually photographing and the extent they were from satellites.” The DCI said “it has been determined they have been and we have good reproductions of what they are getting.” The DCI was to brief the President on the subject the following week.

In an article discussing the memo in the journal Intelligence & National Security, Barrett and Swanson wrote that they found “no references in the intelligence literature to the United States having had the capability to see what the Soviet satellites were seeing, much less any treatment of how the CIA obtained the ‘good reproductions’.”

Assuming the McCone statement is accurate, it would seem to imply one of a few possibilities. It could mean that the US was somehow intercepting the Soviet images (which seems improbable), or that it was replicating the images through US overflights, or else that it was simply modeling the images based on the presumed capabilities of the Soviet satellites and their orbital parameters.

Prof. Barrett added that the fact that the matter was to be briefed to the President indicated that it was of more than ordinary significance. He also noted that the 1963 memo was located in State Department records at the National Archives, and was not released by CIA.

The import of the memo remains uncertain.

Reproductions of Soviet satellite imagery were “not anything I ever came across some ten years later,” said former CIA analyst Allen Thomson, “and I was in a decent position to see such (Office of Weapons Intelligence).”

“At a guess, perhaps the ‘reproductions’ were simulations based on the technical state of the art at the time (film) and estimates of the camera aperture. That would have been easy enough to do and useful as an aid to orient consumers to what might be in the imagery. Or it could just have meant looking at the ground tracks to see what the satellites overflew,” Mr. Thomson said.

Dino Brugioni, who was a pioneering figure in U.S. imagery intelligence and a CIA official at the time of the McCone memo, passed away in September with little public notice.

Intelligence Lessons from the 2009 Fort Hood Shooting

In 2010, then-Director of National Intelligence Dennis C. Blair convened a panel to review the November 2009 Fort Hood shooting committed by Army Maj. Nidal Hasan and the Christmas Day bombing attempt by Umar Farouk Abdulmutallab aboard Northwest Flight 253.

A redacted version of the resulting panel report was finally declassified and released this week. See Report to the Director of National Intelligence on the Fort Hood and Northwest Flight 253 Incidents, Intelligence Community Review Panel, 15 April 2010.  The panel was led by former Acting DCI John E. McLaughlin.

In a nutshell, the report found, “There were several missed opportunities that could have increased the odds of detecting Abdulmutallab or Hasan. The causes of the missteps ranged from human error to inadequate information technology, inefficient processes, unclear roles and responsibilities, and an occasional lack of individual inquisitiveness.”

Beyond a detailed recounting of what was known by U.S. intelligence about the perpetrators, much of which has been withheld, the report fills a gap in the literature of intelligence reform with a look at systemic issues such as the state of information technology in the intelligence community (as of 2011), the process of watch-listing, and disagreements over the handling of U.S. person information.

“Inadequate information technology runs through both the Fort Hood and the NW Flight 253 narratives, particularly the inability of IT systems to help analysts locate relevant reporting in a sea of fragmentary data or to correct for seemingly minor human errors.”

“NCTC [National Counterterrorism Center] analysts, for example, have access to more than 28 separate databases and systems, each of which, for the most part, has a separate log-on. This means analysts have to search each database separately before trying to identify connections among their results.”

The existing search capacity “is intolerant of even simple mistakes in the queries and does not enable questions like: list everyone that is potentially affiliated with AQAP and has a passport or visa that would permit entry to the United States or UK.”

But the problem is not purely one of technology, the report said. “The Community cannot realize the potential of information technology to assist the counterterrorism mission without clarifying… procedures for sharing information on US persons.”

The report reflects a view that restrictions on collecting and disseminating US person information had become onerous and counterproductive.

“Many of the people we interviewed assessed that policy on handling US Persons data… was limiting the Intelligence Community’s ability to aggregate and exploit available data, especially information pertaining to critical domestic-foreign nexus issues.”

“We noticed a strong belief among collectors and analysts that restrictions on collecting, disseminating, accessing, and analyzing data on US Persons impede mission performance…. We also saw a surprising level of disagreement — even among experienced practitioners — on whether current US Person authorities allow intelligence officers to accomplish their missions, or whether new legal authorities are needed.”

(“Sharing US Person information with foreign partners, and tasking them to collect on US Persons appeared at various points,” the report says at the start of an otherwise redacted paragraph.)

“We see a need to simplify, harmonize, update, and modify the Community’s procedures relating to US persons,” the McLaughlin panel wrote.

What exactly this might mean in practice was not spelled out, but it didn’t seem to entail tightening, narrowing or curtailing the use of US person information, or increasing oversight of it.

“The report’s finding on the Intelligence Community’s ‘caution’ and ‘risk aversion’ in the collection of US persons information is particularly notable,” said Christian Beckner, Deputy Director, GW Center for Cyber & Homeland Security, “leading the review group to worry that ‘the next terrorist surprise could be the result of confusion or excessive caution about how to manage this issue.’  This finding is in striking contrast to much of the public dialogue following the Snowden leaks about intelligence activities related to US persons.”

The panel report also includes various incidental observations of interest.

“The panel is concerned that the overlap between CTC [the CIA Counterterrorism Center} and NCTC [the National Counterterrorism Center] extends beyond healthy competition and that the turf battles, duplications, and clashes are a drain on the resources and creative energy of both organizations.”

Furthermore, “It appears that much of the tension between the two organizations centers on issues related to the President’s Daily Brief (PDB) — everything from who takes the lead to what is said in the articles.”

The report cites inaccuracies in news media coverage of the Fort Hood shootings and Christmas Day bombing “that have skewed the discussions.” For example, contrary to some accounts, “There is no evidence indicating that [Anwar al] Aulaqi directed Hasan.”

The report also presents a previously unreleased 2010 DNI directive on “lanes in the road” (included as Appendix D to the report) that “establishes the responsibilities and accountability of leaders of major organizations with counterterrorism analytic missions.” In other words, it assigned specific counterterrorism roles to each of the relevant intelligence agencies.

“Each organization within the IC with a significant counterterrorism analytic effort is expected to work seamlessly with its counterparts, drawing on the specific strengths and advantages of partners, but is also expected to place particular emphasis on those missions they are uniquely positioned to conduct,” wrote DNI Dennis C. Blair in the April 7, 2010 memorandum.

Tolman Reports on Declassification Now Online

This week the Department of Energy posted the first declassification guidance for nuclear weapons-related information, known as the Tolman Committee reports, prepared in 1945-46. The Tolman reports were an early and influential effort to conceptualize the role of declassification of atomic energy information and the procedures for implementing it. Though the reports themselves were declassified in the 1970s, they have not been readily available online until now.