ODNI: Annexes to Intelligence Bills are not “Secret Law”

A recent article in Secrecy News indicated that the classified annexes that accompany the annual intelligence authorization bills are legally binding and constitute “secret law” (A Growing Body of Secret Intelligence Law, May 4).

Robert S. Litt, the General Counsel of the Office of the Director of National Intelligence, wrote in last week to dispute that characterization:

    I read your piece on secret law and the classified annex to the Intelligence
    Authorization bills with interest.  I thought it was worth responding to let you know
    that I believe you are incorrect in saying that the classified annex has the force of
    law.  Each year’s Intelligence Authorization Act contains a provision — usually
    Section 102 in recent years — that provides that the amounts authorized to be
    appropriated are those set out in the schedule of authorizations in the classified
    annex.  It is only that schedule of authorizations that has the force of law.  The
    remainder of the annex is report language explaining the positions of the committee
    on a variety of issues, and has no more force than any other committee report.  That
    is to say, it expresses the views of the Congress, and it therefore would ordinarily be
    followed as a matter of comity, but does not have the force of law.

    In this regard, it is worth noting that the unclassified Joint Explanatory Statement
    accompanying the Intelligence Authorization Act for FY 2015 states (160 Cong. Rec.
    S6464, Dec. 9, 2014):

    “This joint explanatory statement shall have the same effect with respect to the
    implementation of this Act as if it were a joint explanatory statement of a
    committee of conference.

    “This explanatory statement is accompanied by a classified annex that contains
    a classified Schedule of Authorizations.  The classified Schedule of
    Authorizations is incorporated by reference in the Act and has the legal status of
    public law.”

    Bob Litt

In short: The schedule of authorized amounts that is contained within the classified annex does have the force of law, but the rest of the classified annex does not.

We accept the correction.

A congressional intelligence committee staff member concurred.

“The majority of the classified annexes are distinct from the schedules of authorization and are where the Committees opine on and direct various things,” the staff member said. “As a technical point, I believe that Bob is correct — they don’t have the force of law as they are not incorporated in the same way as the schedules.”

“That said, we very much expect that the Executive Branch will follow them, which in fact it does. I don’t know that this matters much, though.  While it may not be secret law, it is secret text that the Congress approves and is presented to the President at the time of his signature and that we believe is binding in practical terms,” the staff member added.

Thus, even if they do not entirely qualify as “secret law,” the classified annexes still have normative force, helping to shape the direction and execution of intelligence policy.

They therefore retain their significance for government accountability, including congressional accountability. And yet as a category of documents, the annexes are completely withheld from the public even decades after they are produced. Unfortunately, that remains undisputed.

*    *    *

Its specific content aside, Mr. Litt’s message is noteworthy as an uncommon act of official participation in public dialog.

In an open society, government officials ought to be reasonably accessible to the members of the public whom they ostensibly serve. But with some exceptions, they are not. Either they are insulated by layers of security, or they are isolated by hierarchical bureaucratic structures that make them unreachable. The secrecy-intensive culture of intelligence only aggravates the problem. Even an open government law like the Freedom of Information Act creates a procedural buffer that often impedes any kind of direct dialog.

Unlike most of his colleagues, Mr. Litt has been willing to engage with members of the public with some frequency. You can ask him a question. You can argue with him. He will argue with you. The point is that he is available to non-governmental interlocutors in a way that should be ordinary but is in fact unusual and exemplary. (See, for example, here, here and here.)

Mr. Litt’s attentiveness to the nuances of an article in Secrecy News brings to mind a passage from Robert M. Gates’ 1996 CIA memoir From the Shadows that is dear to the heart of small newsletter writers. The author was recalling Director of Central Intelligence Bill Casey whom he described as an omnivorous consumer of information from even the most obscure sources.

“Bill Casey was one of the smartest people I have ever known and certainly one of the most intellectually lively,” Gates wrote (p. 217). “He subscribed to newsletters and information sheets that I sometimes thought couldn’t have more than five readers in the world, and then he would ask if I had seen one or another item in them.”

A Growing Body of Secret Intelligence Law

Updated below

After President Obama suggested in a 2013 speech that the CIA drone program could be transferred to the Department of Defense, Senator Dianne Feinstein inserted a classified amendment in a spending bill to discourage the move, Politico recalled in a story last month.

Classified legislative language has been generated by Congress and used to shape intelligence policy each year since the congressional intelligence committees prepared the first stand-alone intelligence authorization act in 1977 (for Fiscal Year 1978).

Though unpublished, those classified provisions have the force of law, the Senate Intelligence Committee declared in the FY 1978 intelligence authorization report (S.Rpt. 95-214, May 16, 1977):

“It is the intent of the committee that the classified report, although not available to the public, will nonetheless have the force of a Senate authorization bill; further that the Intelligence Community shall comply fully with the guidelines and limitations contained therein,” the intelligence authorization report said.

What were those guidelines and limitations that the Intelligence Community was obliged to comply with? That remains a secret almost four decades later, because that first classified committee report has never been made public. Neither has a single one of the subsequent classified annexes to the annual committee authorization bills. Though they may have the legal force of other authorizing legislation, their classified contents remain almost entirely inaccessible to the public.

“The idea of secret laws is repugnant,” a federal appeals court memorably said (Torres v. INS, 7th circuit, 1998). The court’s concern at the time was that “People cannot comply with laws the existence of which is concealed.” But compliance aside, secret laws are also problematic because people cannot challenge them or seek to amend them.

“Secret law” can take a variety of forms. The term is often invoked with respect to unreleased opinions of the Office of Legal Counsel that interpret the law for the executive branch in undisclosed ways. It can also apply to secret presidential directives that define national policies and to some other categories of government information.

The classified annexes to the annual intelligence bills appear to constitute secret law in a strict sense. They legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.

As U.S. foreign intelligence agency activities have expanded into non-consensual domestic collection practices and unconventional “enhanced” techniques, the secret laws that govern them become more than an abstract concern.

Only sporadically do particular provisions of classified annexes to the intelligence bills ever come to public knowledge, whether through leaks or official disclosures.

The account of Sen. Feinstein’s secret intervention to maintain the CIA drone program was first reported by Greg Miller in the Washington Post (“Lawmakers seek to stymie plan to shift control of drone campaign from CIA to Pentagon,” January 15, 2014).

On other occasions, the Senate Intelligence Committee has voluntarily disclosed some of its own classified actions, if only in broad outline. Thus, the Committee revealed in a retrospective report this year:

*    “In the Intelligence Authorization Act for Fiscal Year 2014 and associated classified annex, the Committee recommended additional resources to help assure the IC meets [its] counterintelligence and security goals as soon as possible.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the DNI to provide an implementation plan for the Human Capital Vision.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 directed the development of a specific GAO review to bolster intelligence oversight and reduce unnecessary fragmentation, overlap, and duplication.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 required the DNI create a governance and oversight model to provide the DNI and the Congress with the insight required to ensure IC ITE [the IC Information Technology Enterprise] meets milestones for performance, cost, and schedule. The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the CIA, DIA, NRO, NGA, and NSA to provide specific plans for adoption of IC ITE-compliant capabilities.”

Secret intelligence legislation is a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.

“The declassification procedures for classified records created by committees of Congress, particularly classified reports and closed hearing transcripts, are irregular and limited,” said the Public Interest Declassification Board in a 2007 report on Improving Declassification.

“The classified records created by the Congress often provide unique and significant insights into national security policy, decision making, and the budget and oversight process at a given point in time,” the PIDB report said. “Yet, because the records of the committees are classified and never subjected to declassification review, the public and historians are largely unaware of their existence.”

The PIDB recommended that “formal procedures should be established for the declassification review of classified committee reports and hearing transcripts.” But with few exceptions, that recommendation has not been acted upon, and the number of declassified congressional reports remains disappointingly small.

One example of a declassified committee report is the release last year of a redacted summary of the SSCI report on CIA detention and interrogation. Another is the redacted 2002 final report of the congressional joint inquiry into the 9/11 terrorist attacks.

Over the years, the Senate Foreign Relations Committee has published declassified transcripts of the Committee’s executive sessions (closed hearings) in a series of twenty volumes covering 1947 through 1968.  But after the latest volumes were published in 2007 and 2010 (covering hearings in 1967 and 1968), no further releases have been forthcoming from the Committee.

Update: For a response from ODNI, see Annexes to Intelligence Bills are not “Secret Law.”

Russia Images the LACROSSE Spysat

A Russian satellite tracking facility in Siberia has produced rarely-seen photographs of a U.S. intelligence satellite.

The U.S. Lacrosse radar satellite was captured in images generated at Russia’s Altay Optical Laser Center, apparently between 2005 and 2010. A selection of images was compiled and analyzed by Allen Thomson. See An Album of Images of LACROSSE Radar Reconnaissance Satellites Made by a 60 cm Adaptive Optics System at the G.S. Titov Altai Optical-Laser Center.

“The images contain enough information (range, angular scale) to perform a bit of technical intelligence (i.e., sophomore high school trigonometry) on the radar antenna size, which is a significant parameter affecting capability,” Mr. Thomson, a former CIA analyst, told Secrecy News.

While provocative, the intent of the imagery disclosure was obscure, he said.

“Why did the Russians release the images?  The US is highly paranoid about releasing resolved images of spysats, ours or others. The Russian paranoia is at least as great, so how did these images get out? What was the purpose?”

The images themselves seem to be mostly just a curiosity. But perhaps they underscore the growing visibility and the corresponding vulnerability of U.S. space-based assets.

“Our asymmetrical advantage in space also creates asymmetrical vulnerabilities,” said Gil Klinger, a defense intelligence official, last year. “Our adversaries recognize our dependence on space and continue to think of ways to respond to our space advantage.”

He testified at a 2014 House Armed Services Committee hearing on U.S. national security space activities, the record of which has recently been published. Space protection, orbital debris, the industrial base and related topics were addressed.

Russia’s Altay Optical Laser Center was profiled by Mr. Thomson here.

Intelligence Oversight in the 113th Congress

During the last two years, the U.S. intelligence community has faced momentous challenges and experienced extraordinary upheaval, including the Snowden disclosures beginning in June 2013 and the release of a redacted summary of the Senate report on CIA interrogation practices last year.

Those episodes and others are reflected in a new report from the Senate Select Committee on Intelligence describing its oversight activities in the 113th Congress from January 2013 to January 2015.

Highlights of the new report include these:

**    Efforts to make U.S. intelligence agencies financially auditable are progressing slowly. “The CIA, NGA, NRO, and NSA conducted audits of their fiscal year 2014 financial statements,” but only the National Reconnaissance Office (NRO) completed the process successfully. The CIA, NGA, and NSA “received disclaimers of opinion,” meaning that their financial statements could not be validated by the auditors. “While the DIA and ODNI did not conduct an audit, both plan to do so in 2015,” the report said.

**    Over-control of classified information continues to hamper information sharing even within the intelligence community, the report said. “The Committee has been concerned about the IC’s misapplication and overuse of the originator control marking (ORCON), which can impede the complete and timely dissemination of intelligence, as the agency that originates the information retains control over its dissemination…. Committee staff concluded that the use of the ORCON marking by certain IC elements had increased substantially, and that in some cases classification and control marking policies had been violated.”

**    Efforts to enlist the resources of the Government Accountability Office to strengthen intelligence oversight — a move long advocated by outside observers — are continuing, as the Committee encourages “open lines of communication and collaboration” between ODNI and GAO. The new report reveals that the classified annex of the FY 2014 authorization bill “directed the development of a specific GAO review to bolster intelligence oversight and reduce unnecessary fragmentation, overlap, and duplication.”

**    The report provides some new details of the three-volume structure of the still-classified CIA “torture report”. The first volume addressed the history of CIA’s interrogation program in 1,539 pages. The second volume devoted 1,858 pages to intelligence acquired through the program and CIA’s representations of its effectiveness. And the third volume, in 2,855 pages, focused on the detention and interrogation of 119 CIA detainees.

**    The Committee report said that “Financial intelligence has emerged as a significant are of IC activity, aiming to ‘follow the money’ of adversaries. It has proven to be a powerful tool confronting a range of challenging threats including terrorism, weapons proliferation, and narcotics trafficking.”

**    “The Committee also devoted significant time and attention to lethal operations against counterterrorism targets…. The Committee has worked with the Executive Branch to understand the legal basis for these operations.”  Likewise, “The Committee seeks to ensure that covert action programs are consistent with United States foreign policy goals, and are conducted in accordance with all applicable U.S. laws.”

**    With seeming condescension, the report noted that “The Committee annually receives hundreds of phone calls, facsimiles, mail, and email communications from self-identified whistleblowers on matters they believe to be of urgent concern. Committee staff reviewed and investigated these communications.” If these investigations yielded any actionable findings, they are not mentioned in the report.

**    The report pointedly observed that “Since 1994, the Committee has held annual open hearings to review the Intelligence Community’s assessment of the current and projected national security threats to the United States.” That twenty-year tradition came to an end this year when the new Chairman, Sen. Richard Burr, decided to hold the Committee’s annual threat briefing in closed session.

The new Senate Intelligence Committee report does not contain any note of critical self-examination or any suggestion that congressional oversight itself might have been complicit in the errors and excesses of intelligence agencies. Accordingly, the report does not address any potential changes that might be made to improve the intelligence oversight process.

FRUS on Investigating Intelligence in the 1970s

“There is too much disclosure,” complained George H. W. Bush, then-Director of Central Intelligence, in a 1976 memo to President Gerald Ford.

“We are continually pressed by Congress, by the courts, by the Freedom of Information Act, to give up sensitive material,” DCI Bush added. “We are trying to hold the line but there is a continuous erosion which gives away classified information at home and complicates our liaison relationships abroad. I am frustrated by our inability to deal with the leaking of classified information.”

His memo to President Ford was presented (as document 78) in a fascinating new collection of executive branch documents on the investigations of U.S. intelligence agencies during the 1970s. The collection was assembled for the State Department’s Foreign Relations of the United States (FRUS) series (1969-1976, volume XXXVIII, part 2), which has just been published in hardcopy. It was posted in full last December on the website of the State Department historian.

In the aftermath of the Senate Church Committee investigation, “I find no degradation in the quality of intelligence analysis,” said Secretary of State Henry Kissinger at a Top Secret meeting of the National Security Council in January 1977 (document 83 in the FRUS collection).

“The opposite is true, however, in the covert action area,” Kissinger told the NSC. “We are unable to do it anymore.”

“Many things are not even proposed these days because we are afraid to even discuss them much less implement them,” Kissinger said then.

Frederick A.O. Schwarz Jr., who was the chief counsel of the Church Committee, has written a new book of his own on secrecy in the broad sweep of American history up to the present day. Democracy in the Dark: The Seduction of Government Secrecy (The New Press, 2015) was published this week. The book was welcomed by Katrina vanden Heuvel writing in the Washington Post on April 7.

DHS Seeks Increase in Domestic HUMINT Collection

The Department of Homeland Security aims to increase its domestic human intelligence collection activity this year, the Department recently told Congress.

In a question for the record from a September 2014 congressional hearing, Rep. Paul C. Broun (R-GA) asked:  “Do we currently have enough human intelligence capacity–both here in the homeland and overseas–to counter the threats posed by state and non-state actors alike?”

The Department replied, in a response published in the full hearing volume last month (at p. 64):

“DHS is working on increasing its human intelligence-gathering capabilities at home and anticipates increasing its field collector/reporter personnel by 50 percent, from 19 to approximately 30, during the coming year.”

“We are also training Intelligence Officers in State and major urban area fusion centers to do intelligence reporting. This will increase the human intelligence capability by additional 50–60 personnel.”

The projected increase in DHS HUMINT collection activity was not specifically mentioned in the Department’s FY 2015 budget request.

Human intelligence collection in this context does not necessarily mean that the Department is running spies under cover. According to a 2009 report from the Congressional Research Service (footnote 38), “For purposes of DHS intelligence collection, HUMINT is used to refer to overt collection of information and intelligence from human sources. DHS does not, generally, engage in covert or clandestine HUMINT.”

In any case, “The DHS Intelligence Enterprise has increased intelligence reporting, producing over 3,000 reports in fiscal year 2014,” DHS also told Rep. Broun.

A June 2014 report from the Government Accountability Office found fault with some of that reporting, which is generated by the DHS Office of Intelligence and Analysis (I&A).

“I&A customers had mixed views on the extent to which its analytic products and services are useful,” GAO found. See DHS Intelligence Analysis: Additional Actions Needed to Address Analytic Priorities and Workforce Challenges, GAO report GAO-14-397, June 2014.

DHS concurred with the resulting GAO recommendations.

 

Growing Data Collection Inspires Openness at NGA

A flood of information from the ongoing proliferation of space-based sensors and ground-based data collection devices is promoting a new era of transparency in at least one corner of the U.S. intelligence community.

The “explosion” of geospatial information “makes geospatial intelligence increasingly transparent because of the huge number and diversity of commercial and open sources of information,” said Robert Cardillo, director of the National Geospatial-Intelligence Agency (NGA), in a speech last month.

Hundreds of small satellites are expected to be launched within the next three years — what Mr. Cardillo called a “darkening of the skies” — and they will provide continuous, commercially available coverage of the entire Earth’s surface.

“The challenges of taking advantage of all of that data are daunting for all of us,” Mr. Cardillo said.

Meanwhile, the emerging “Internet of Things” is “spreading rapidly as more people carry more handheld devices to more places” generating an abundance of geolocation data.

This is, of course, a matter of intelligence interest since “Every local, regional, and global challenge — violent extremism in the Middle East and Africa, Russian aggression, the rise of China, Iranian and North Korean nuclear weapons, cyber security, energy resources, and many more — has geolocation at its heart.”

Consequently, “We must open up GEOINT far more toward the unclassified world,” Director Cardillo said in another speech last week.

“In the past, we have excelled in our closed system. We enjoyed a monopoly on sources and methods. That monopoly has long since ended. Today and in the future, we must thrive and excel in the open.”

So far, NGA has already distinguished itself in the area of disaster relief, Mr. Cardillo said.

“Consider Team NGA’s response to the Ebola crisis. We are the first intelligence agency to create a World Wide Web site with access to our relevant unclassified content. It is open to everyone — no passwords, no closed groups.”

NGA provided “more than a terabyte of up-to-date commercial imagery.”

“You can imagine how important it is for the Liberian government to have accurate maps of the areas hardest hit by the Ebola epidemic as well as the medical and transportation infrastructure to combat the disease,” Mr. Cardillo said.

But there are caveats. Just because information is unclassified does not mean that it is freely available.

“Although 99 percent of all of our Ebola data is unclassified, most of that is restricted by our agreements [with commercial providers],” Mr. Cardillo said. “We are negotiating with many sources to release more data.”

Last week, Director Cardillo announced a new project called GEOINT Pathfinder that will attempt “to answer key intelligence questions using only unclassified data.”

When it comes to transparency, the Office of the Director of National Intelligencerecently expressed the view that the U.S. intelligence community should make “information publicly available in a manner that enhances public understanding of intelligence activities, while continuing to protect information when disclosure would harm national security.”

But some intelligence agencies have chosen a different path.

At the CIA, for example, public access to unclassified translations and analytical products of the Open Source Center was abruptly terminated at the end of 2013. Such materials from the OSC and its predecessor, the Foreign Broadcast Information Service, had provided invaluable support to generations of scholars, students, and foreign policy specialists. But that is no longer the case.

New DNI Guidance on Polygraph Testing Against Leaks

Updated below

Director of National Intelligence James R. Clapper issued guidance this month on polygraph testing for screening of intelligence community personnel. His instructions give particular emphasis to the use of the polygraph for combating unauthorized disclosures of classified information.

Counterintelligence scope polygraph examinations “shall cover the topics of espionage, sabotage, terrorism, unauthorized disclosure or removal of classified information (including to the media), unauthorized or unreported foreign contacts, and deliberate damage to or misuse of U.S. Government information systems or defense systems,” the guidance states.

Such examinations “shall specifically include the issue of unauthorized disclosures of classified information during pre-examination explanations by incorporating a definition that explicitly states that an unauthorized disclosure means unauthorized communication or physical transfer of classified information to an unauthorized recipient.”

The polygraph administrator is further instructed to explain that an unauthorized recipient is any person without an appropriate clearance or need to know, “including any member of the media.”

See Conduct of Polygraph Examinations for Personnel Security Vetting, Intelligence Community Policy Guidance 704.6, February 4, 2015.

The use of polygraph testing to combat leaks has been a recurring theme in security policy for decades. Yet somehow neither leaks nor polygraph tests have gone away.

President Reagan once issued a directive (NSDD 84) to require all government employees to submit polygraph testing as an anti-leak measure.

In response, Secretary of State George P. Shultz famously declared in 1985 that he would quit his job rather than take the test. “The minute in this government I am told that I’m not trusted is the day that I leave,” Shultz told reporters.

Having forthrightly declared his position, Secretary Shultz was never compelled to undergo the polygraph test or to resign. “Management through fear and intimidation,” he said in 1989, “is not the way to promote honesty and protect security.”

From another perspective, the problem with polygraph testing has nothing to do with intimidation but with accuracy and reliability. There is at least a small subset of people who seem unable to “pass” a polygraph exam for reasons that neither they nor their examiners can discern. And there are others, such as the CIA officer and Soviet spy Aldrich Ames, who have been able to pass the polygraph test while in the espionage service of a foreign government.

Update: The polygraph provisions of NSDD 84 were quietly modified in 1984 and were never implemented.

Leaks Damaged U.S. Intelligence, Official Says

Unauthorized disclosures of classified information by Edward Snowden have damaged U.S. intelligence capabilities, National Counterterrorism Center director Nicholas J. Rasmussen told Congress last week.

“Due to the Snowden leaks and other disclosures, terrorists also have a great understanding of how we seek to conduct surveillance including our methods, our tactics and the scope and scale of our efforts. They’ve altered the ways in which they communicate and this has led to a decrease in collection,” Mr. Rasmussen said at a February 12 hearing of the Senate Select Committee on Intelligence.

“We have specific examples which I believe we have shared with the committee and the committee staff in classified session — specific examples of terrorists who have adopted greater security measures such as using various new types of encryption, terrorists who have dropped or changed email addresses, and terrorists who have simply stopped communicating in ways they had before, in part because they understand how we collected,” he said.

This is not terribly persuasive, particularly since Mr. Rasmussen did not specify which leaks resulted in which changes by which terrorists at what cost to U.S. security. Nor is a public statement by an intelligence official before the Senate Intelligence Committee entitled any longer to a presumption of accuracy since the Committee permits errors to stand uncorrected.

Nevertheless, it seems plausible that leaks which had the power to galvanize public debate over the scope of intelligence surveillance might also have had the power to undermine existing collection capabilities, including collection for valid and necessary purposes.

For some of Edward Snowden’s partisans and supporters, however, the possibility that his leaks had negative as well as positive consequences involves more complexity than they can tolerate. If Snowden intended to defend constitutional values, as he insists, then how dare anyone suggest that he may have also aided America’s enemies, even indirectly?

This sort of complexity does not arise in Laura Poitras’s award-winning film Citizenfour about Snowden, as its few critical reviewers have noted.

Many of the documents Snowden disclosed “go far beyond exposures of spying on Americans,” wrote Fred Kaplan in a review of the film in Slate. “If Snowden and company wanted to take down an intelligence agency, they should say so. But that has nothing to do with whistleblowing or constitutional rights.”

Likewise, wrote George Packer in The New Yorker, “Among the leaked documents are details of foreign-intelligence gathering that do not fall under the heading of unlawful threats to American democracy–what Snowden described as his only concern. [Former NSA official William] Binney, generally a fervent Snowden supporter, told USA Today that Snowden’s references to ‘hacking into China’ went too far: ‘So he is transitioning from whistle-blower to a traitor’.”

And from Michael Cohen in The Daily Beast: “What is left out of Poitras’s highly sympathetic portrayal of Snowden is so much of what we still don’t know about him. For example, why did he steal so many documents that have nothing to do with domestic surveillance but rather overseas–and legal–intelligence-gathering operations?”

But for a discussion of Citizenfour that presents no such dissonant, skeptical notes or troublesome opposing views, see the late David Carr’s final interview with Snowden, Poitras and Glenn Greenwald.

“How’d you like the movie?” Mr. Carr asked Snowden. “It’s incredible,” Mr. Snowden affirmed. “I don’t think there’s any film like it.”

DNI Issues Directive on “Critical Information”

The Director of National Intelligence last week issued a new directive on “critical information,” also denominated “CRITIC,” which refers to national security information of the utmost urgency.

“Critical information is information concerning possible threats to U.S. national security that are so significant that they require the immediate attention of the President and the National Security Council,” the directive explains.

“Critical information includes the decisions, intentions, or actions of foreign governments, organizations, or individuals that could imminently and materially jeopardize vital U.S. policy, economic, information system, critical infrastructure, cyberspace, or military interests.”

See “Critical Information (CRITIC),” Intelligence Community Directive 190, February 3, 2015.

Interestingly, any intelligence community official can designate information as “critical,” thereby hotlining it for Presidential attention. “Critical information may originate with any U.S. government official in the IC,” the DNI directive says.

Moreover, “CRITIC reporting may be based on either classified or unclassified information.” However, “CRITIC reporting should be based solely on unclassified information only if that information is unlikely to be readily available to the President and the National Security Council.”

The threshold for critical information is fairly high. It includes such things as a terrorist act against vital U.S. interests, the assassination or kidnapping of officials, a cyberspace attack that produces effects of national security significance, and so on.

Confusingly, the term critical information (CRITIC) is used differently in the Department of Defense.

According to the latest DoD Dictionary of Military Terms, “critical information” means “Specific facts about friendly intentions, capabilities, and activities needed by adversaries for them to plan and act effectively so as to guarantee failure or unacceptable consequences for friendly mission accomplishment. Also called CRITIC.”