CIA Posts Hundreds of Declassified Journal Articles

The Central Intelligence Agency has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence, in an effort to settle a lawsuit brought by a former employee, Jeffrey Scudder. Until lately, the CIA had resisted release of the requested articles in softcopy format (Secrecy News, March 17), but the Agency eventually relented.

“Of the 419 documents that remain in dispute in Scudder, the CIA has produced 249 in full or in part by putting them up on the CIA website,” the government informed Mr. Scudder’s attorney, Mark S. Zaid, this week. They are posted here. [Update: The preceding link is dead. CIA has integrated the Scudder release into this larger collection of declassified Studies articles].

The newly posted articles cover a wide range of topics, and vary considerably in substance and originality. The CIA said that 170 other articles sought by Scudder had been withheld in full.

Jeffrey Scudder was profiled recently in the Washington Post (CIA employee’s quest to release information ‘destroyed my entire career’ by Greg Miller, July 4, 2014).

“Ingenuity” Could Not Prevent Atom Bomb Espionage

When the internal history of the Manhattan Project was written in 1944, officials still believed — mistakenly — that the atom bomb program had evaded the threat of foreign espionage.

“Espionage attempts were detected but it is felt that prompt action and intensified investigative activity in each case prevented the passing of any substantial amount of Project information,” according to a previously overlooked page from the Manhattan District History that was declassified yesterday.

Although declassification of the official history was thought to have been completed in July of this year (WWII Atom Bomb Project Had More Than 1,500 Leaks, Secrecy News, August 21), a single page had been inadvertently withheld from disclosure.

When its absence was pointed out to Department of Energy classification officials, they expeditiously retrieved the missing page (page 2.4 of Volume 14), declassified it and incorporated it in the published online document.

The newly disclosed page presents a flattering view of Manhattan Project counterintelligence efforts.

“The CIC [Counterintelligence Corps] Special Agents assigned to espionage cases became proficient in all phases of investigation technique. Many of them displayed skill and ingenuity unsurpassed by the most experienced investigators,” the document said.

“Agents impersonated men of all occupations in order to obtain information that would enable them to evaluate a suspect properly. An agent worked as a hotel clerk for over two years while another became bell captain in the few months he worked as a bell hop. Agents have posed as electricians, painters, exterminators, contractors, gamblers, etc.”

Yet their skill and ingenuity were inadequate to the task.  It later became clear that the Manhattan Project had been effectively penetrated by a number of Soviet intelligence agents and sympathizers.

The Department of Energy’s publication of the 36-volume Manhattan Project history itself required an extra measure of devotion. First, the tens of thousands of individual pages, many of them on second- or third-generation carbon paper, were painstakingly reviewed. The Public Interest Declassification Board noted with approval that “these records received a line by line declassification review, rather than being subjected to simple pass/fail determinations.” Then, once that process was completed, each page had to be manually scanned for online publication by the Department of Energy.

Except for a few passages stubbornly redacted by the CIA, the whole document has now emerged from the purgatory of sealed government archives and is now available to anyone who cares to read it.

 

Congress Grapples with Classification Issues

A bill introduced in the House of Representatives by Rep. Bennie Thompson (D-MS) would direct the President to reduce the amount of classified information by 10%. It is one of several new congressional initiatives seeking to rectify perceived defects in the national security classification system.

Most prominently, the Senate Intelligence Committee is engaged in an ongoing dispute with the Administration over declassification of the Committee’s report on the CIA’s post-9/11 detention and interrogation program.

Sen. Dianne Feinstein, the Committee chair, said the Administration’s proposed redactions to the executive summary of the report were unacceptably broad.

“I have concluded the redactions eliminate or obscure key facts that support the report’s findings and conclusions,” she said on August 5. “Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.”

With this contentious experience fresh in mind, one might have expected the Senate Intelligence Committee to have acquired special insight into the failings of the existing classification system and to have devised some well-considered remedial measures to address them.

But that does not appear to be the case.

In its new intelligence authorization bill for Fiscal Year 2015 (S. 2741, sec. 311), the Committee weakly requires the Director of National Intelligence to prepare a report “describing proposals to improve the declassification process throughout the intelligence community.”

Under current circumstances, this proposed reporting requirement seems like a failure of imagination and leadership, and probably a waste of everyone’s time. Perhaps it is just a placeholder for something more ambitious that is still to come.

By contrast, the bill introduced by Rep. Thompson in the House and by Sen. Ron Wyden in the Senate is prescriptive and solution-oriented in its treatment of the issue.

Among its several provisions, the new bill (HR 5240) would require the President “to establish a goal for the reduction of classified information by not less than 10 percent within five years through improved declassification and improved original and derivative classification decision-making,” according to a Fact Sheet on the bill, dubbed the CORRECT Act. (It is unclear how the 10 percent reduction in information would be measured, whether in pages or bytes or number of classification decisions or by some other standard.)

The Thompson/Wyden bill would also bolster and expand the Public Interest Declassification Board, assigning it the responsibility to evaluate the continuing validity of all current classification guidance. Though this provision may seem innocuous, it is a clear challenge to the autonomy that is currently enjoyed by executive branch agencies regarding what is to be classified. As such, it represents the kernel of a solution to the problem of overclassification.

The bill would further direct the Privacy and Civil Liberties Oversight Board to establish standards for the emerging insider threat program, and it would decisively break from current practice by authorizing the Merit System Protection Board to review agency denials or revocations of security clearances.

However, the deliberative effort that has gone into preparing the bill is not going to yield any near-term reward. In all likelihood, Rep. Thompson’s CORRECT Act will not even receive a hearing in the remainder of this expiring Congress.

Another modest but potentially useful legislative effort is an amendment to be introduced by Sen. Jeanne Shaheen that would enhance the authority and capacity of the National Declassification Center.

If the Senate Intelligence Committee wants a report on “improving declassification,” as the new intelligence authorization bill requires, then there is already a report with that very title that was prepared by the Public Interest Declassification Board in December 2007.

Several of the report’s recommendations have still not been acted on. Among them is a proposal that “formal procedures should be established for the declassification review of classified [congressional] committee reports and hearing transcripts.”

Because such records are produced and held by congressional committees, such as the Senate Intelligence Committee, they are not eligible for declassification unless and until the originating committee takes the initiative to have them reviewed and declassified. Yet this is rarely done, despite the importance of these materials.

“Frequently, closed sessions of congressional committees are the only occasion when executive branch policy in the national security area is explained, challenged (by members), and defended by administration representatives. The exchanges at these hearings, as well as the views of Congress (elaborated in classified committee reports), often affect the policy choices of the executive branch. Yet, because the records of the committees involved are classified and never subjected to declassification review, the public and historians are largely unaware of their existence,” the PIDB report said.

“Despite their historical significance, classified records created by the Congress are reviewed for declassification only on a hit-or-miss and relatively limited basis. As a result, the public is denied a valuable source of historically significant information,” the report said.

So, for example, not a single classified annex to the annual intelligence authorization bills produced by the congressional intelligence committees has ever been declassified.

Identity Intelligence and Special Operations

“Identity intelligence” is a relatively new intelligence construct that refers to the analysis and use of personal information, including biometric and forensic data among others, to identify intelligence targets of interest and to deny them anonymity.

The term began to appear a few years ago and was included, for example, in a 2012 Defense Intelligence Agency briefing package. Since then it has quickly propagated throughout U.S. military and intelligence operations.

Identity intelligence (or I2) was included for the first time in published U.S. military doctrine in the October 2013 edition of Joint Publication (JP) 2-0 on Joint Intelligence, which elaborated on the concept. Identity intelligence is used, JP 2-0 said, “to discover the existence of unknown potential threat actors by connecting individuals to other persons, places, events, or materials, analyzing patterns of life, and characterizing their level of potential threats to US interests.”

(“Identity intelligence” also appeared in an undated Top Secret document that was disclosed by Edward Snowden and published in excerpted form by the New York Times on May 31, 2014.)

Most recently, an updated U.S. Department of Defense publication on special operations noted this month that “Identity intelligence products enable real-time decisions in special operations worldwide.”

The new DoD doctrine on Special Operations — Joint Publication 3-05, dated 16 July 2014 — includes further discussion of identity intelligence (I2) in the special operations context:

“I2 is the collection, analysis, exploitation, and management of identity attributes and associated technologies and processes. The identification process utilizes biometrics-enabled intelligence (BEI), forensics-enabled intelligence (FEI), information obtained through document and media exploitation (DOMEX), and combat information and intelligence to identify a person or members of a group.”

“I2 fuses identity attributes (biological, biographical, behavioral, and reputational information related to individuals) and other information and intelligence associated with those attributes collected across all intelligence disciplines….”

“USSOCOM [US Special Operations Command] exploits biometric, forensic, document and media data collections and integrates the data with all-source intelligence to locate and track unattributed identities across multiple or disparate instances. Intelligence collections are processed through the appropriate DOD and interagency databases, exploited to produce intelligence, and then disseminated to deployed SOF and throughout the interagency. I2 products enable real-time decisions in special operations worldwide.”

*    *    *

Identity intelligence aside, the new Joint Publication 3-05 provides an informative account of the role of special operations, along with some notable changes from previous special operations doctrine.

“Special operations require unique modes of employment, tactics, techniques, procedures, and equipment. They are often conducted in hostile, denied, or politically and/or diplomatically sensitive environments, and are characterized by one or more of the following: time-sensitivity, clandestine or covert nature, low visibility, work with or through indigenous forces, greater requirements for regional orientation and cultural expertise, and a higher degree of risk,” JP 3-05 says.

The previous edition of this publication (dated 2011) had identified 11 core activities for special operations: direct action, special reconnaissance, counterproliferation of weapons of mass destruction, counterterrorism, unconventional warfare, foreign internal defense, security force assistance, counterinsurgency, information operations (IO), military information support operations (MISO), and civil affairs operations.

The new edition adds a 12th mission that up to now had not been considered a core activity: hostage rescue and recovery.

“Hostage rescue and recovery operations are sensitive crisis response missions in response to terrorist threats and incidents. Offensive operations in support of hostage rescue and recovery can include the recapture of US facilities, installations, and sensitive material overseas,” the new JP 3-05 states.

When the Administration Asks Itself to Declassify

In preparing its recent report on the Section 702 surveillance program, the Privacy and Civil Liberties Oversight Board (PCLOB) demonstrated an unusual mode of declassification, in which one executive branch agency asks another agency to declassify information.

In this case, the process was remarkably productive, and it may offer a precedent for future declassification efforts.

“During the process of preparing this report we sought and obtained declassification of facts about this still highly classified [Section 702] program in order to allow us to put in context how the program operates and clarify some public misconceptions,” said PCLOB Chairman David Medine at a July 2 public meeting.

“As a result, over one hundred new facts were declassified by the government to provide needed context for the program’s operation,” he said.

In what the PCLOB staff termed a “lateral declassification” model, it was an executive branch agency (i.e., the PCLOB itself) — rather than Congress or members of the public — that pressed another government agency (ODNI, NSA, CIA, FBI or Justice) to declassify specific information.

Such an interagency request for declassification differs from the “referrals” that agencies routinely direct to one another. In those cases, the receiving agency is simply asked to review records to identify its own classified information (or “equities”) and then to advise the originating agency what must be withheld and what may be disclosed.

Here, the PCLOB didn’t merely ask agencies to screen for classified information under existing classification standards. It urged them to actually change those standards. And in more than 100 specific cases, the agencies did so.

Most of the declassified facts in the PCLOB Section 702 report are not specifically flagged as having been declassified at the Board’s request, and they may therefore be easily overlooked. A partial compilation of such newly declassified facts, prepared by a participant in the process, was obtained by Secrecy News.

Several features appear to have contributed to the efficacy of the lateral declassification approach.

For one thing, the requesting agency (the PCLOB) already possessed the requested information in classified form. So it knew exactly what it was asking for, and why it was asking for it to be declassified.

And then the fact that the declassification requests originated within the executive branch itself (the PCLOB is an independent executive branch agency) made it harder for the recipient agencies to ignore the request and easier for them to fulfill it.

By contrast, public requests through the Freedom of Information Act often seem to decline into an adversarial contest, in which the agency adopts a defensive posture and offers only minimal, grudging compliance with disclosure requirements.  (At CIA, one gets the impression that asking for a record to be declassified can make it less likely to be disclosed.) Requests from Congress also inevitably have a political overlay, and may be seen to serve an agenda that does not coincide with the Administration’s own.

But as part of the Administration, the PCLOB’s many declassification requests did not trigger the sort of immune response that any outside request would have done.

Of course, the PCLOB’s work, including its declassification proposals, did not take place in a vacuum.

“A lot of political wind was at our back,” said Peter Winn, acting general counsel for the Board.

Not only had related classified details entered the public domain through the Snowden disclosures, but calls for declassification of more information regarding current surveillance programs had been explicitly endorsed by the Director of National Intelligence and other senior officials.

Because of these competing factors, the role played by the Board’s “lateral declassification” approach cannot be precisely delineated or clearly distinguished from them.

But its apparent effectiveness is consistent with the productive declassification work performed by another executive branch body, the Interagency Security Classification Appeals Panel (ISCAP), which has declassified information in a large majority of the mandatory declassification review appeals presented to it.

Perhaps most important, the Board’s experience with declassification in the Section 702 report may serve as a precedent for similar initiatives in the future.

“For us, it’s a model,” said Sharon Bradford Franklin, executive director of the PCLOB.

She noted that more than 90% of the Board’s requests for declassification had been granted, and that they preceded completion of the Board’s report. (That is, the declassification actions were not predicated on any agency’s review of the Board’s conclusions or recommendations.)

Enough information about the 702 program was declassified that a classified annex — which had earlier been assumed to be necessary — turned out to be unnecessary, Ms. Franklin said.

She also credited the intelligence agencies for their diligent engagement and cooperation in the declassification process, as did the published PCLOB report.

“In the preparation of this Report, the Board worked with the Intelligence Community to seek further declassification of information related to the Section 702 program,” the report noted (at p. 3).

“Specifically, the Board requested declassification of additional facts for use in this Report. Consistent with the Board’s goal of seeking greater transparency where appropriate, the request for declassification of additional facts to be used in this Report was made in order to provide further clarity and education to the public about the Section 702 program.”

“The Intelligence Community carefully considered the Board’s requests and has engaged in a productive dialogue with PCLOB staff. The Board greatly appreciates the diligent efforts of the Intelligence Community to work through the declassification process, and as a result of the process, many facts that were previously classified are now available to the public.”

The final PCLOB report on the Section 702 program included several recommendations concerning transparency, including proposals for further specific declassification actions. Those proposals remain pending.

 

Senate Bill Requires Report on “All” NSA Bulk Collection

Updated below

The National Security Agency would be required to prepare an unclassified report on “all NSA bulk collection activities,” the Senate Appropriations Committee directed in its report on the Fiscal Year 2015 Department of Defense Appropriations bill, published yesterday.

The Committee told the NSA to prepare a report “describing all NSA bulk collection activities, including when such activities began, the cost of such activities, what types of records have been collected in the past, what types of records are currently being collected, and any plans for future bulk collection.”

Such a report would be expected to clarify whether NSA bulk collection extends beyond the acknowledged telephone metadata program in Section 215 of the USA Patriot Act.

The required report is to be “unclassified to the greatest extent possible,” the Senate Committee said.

In the reporting requirements that it imposed on NSA, the Senate Appropriations Committee notably went beyond what was required by the Senate or House Intelligence Committees.

The Appropriations Committee also directed NSA to submit additional reports on the total number of records acquired and reviewed by NSA in its bulk telephone metadata program over the past five years, and an estimate of the number of records of U.S. persons that have been acquired and reviewed in the telephone metadata program.

Another unclassified report is required to provide “a list of terrorist activities that were disrupted, in whole or in part, with the aid of information obtained through NSA’s telephone metadata program.”

A January 2014 report of the Privacy and Civil Liberties Oversight Board found that the Section 215 telephone metadata program had “minimal value in protecting the nation from terrorism.”

“We are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack,” the PCLOB report said.

In contrast to the Section 215 bulk telephone metadata program, the PCLOB said in a report this month that the Section 702 program to collect the communications of targeted non-U.S. persons abroad “has proven valuable in a number of ways to the government’s efforts to combat terrorism,” and that it had enabled the government to “discover previously unknown terrorist operatives and disrupt specific terrorist plots.”

The Board cautioned, however, that the 702 program “may allow a substantial amount of private information about U.S. persons to be acquired by the government, examined by its personnel, and used in ways that may have a negative impact on those persons.”

An estimate of the amount of such U.S. person information collected under the Section 702 program was not specifically required by the Senate Appropriations Committee.

Update: Identical reporting language was included by the Senate Appropriations Committee last year in its report on the FY2014 Defense Appropriations bill (h/t @byersalex), yet the required NSA reports were not produced.

At Emptywheel, Marcy Wheeler questions the utility of the proposed reports, particularly since the Senate Committee language lacks a clear, unambiguous definition of “bulk collection.”

DNI Issues New Policy on Leak Damage Assessments

The Director of National Intelligence has issued new guidance on assessing damage resulting from the unauthorized disclosure of classified intelligence information to ensure that the damage assessments “are produced in an efficient, timely, consistent and collaborative manner.”

Leak damage assessments should be used iteratively and the lessons learned from them should be applied “to strengthen the protection of classified national intelligence and prevent future unauthorized disclosures or compromises.”

In addition to the facts and circumstances of the unauthorized disclosure, damage assessments should identify “any foreign involvement” in the case and “actionable recommendations to prevent future occurrences.”

Where foreign partners are affected by the leak, agency heads shall coordinate with DNI “prior to notifying a foreign government.” Also, “foreign governments normally will not be advised of any security system vulnerabilities that contributed to the compromise.”

See “Damage Assessments,” Intelligence Community Directive 732, June 27, 2014.

ODNI Declassifies Data on Frequency of Surveillance

The Office of the Director of National Intelligence released the “2013 Statistical Transparency Report” detailing the frequency of use of various intelligence surveillance authorities and the estimated number of targets affected by the surveillance.

While the reported numbers give some rough sense of the scale of intelligence surveillance — civil liberties groups said the estimated numbers are bound to be misleadingly low — the report provides no basis for evaluating the utility or legitimacy of the surveillance activities.

How many of the collection activities were authorized on the basis of erroneous information? How many actually produced useful intelligence? The report doesn’t say, and the raw numbers are not a substitute. If they were ten times higher, or ten times lower, we would be none the wiser.

(A supplemental response from ODNI to Senator Wyden was released today.)

See U.S. Phone Searches Expanded in 2013 by Siobhan Gorman, Wall Street Journal, June 27, and related coverage elsewhere (WashPost, Wired, Openthegovernment.org, Huffington Post).

From a secrecy policy point of view, perhaps the most intriguing feature of the new release is the unconventional timing of its declassification. The report is dated June 26, 2014 and was classified at the TOP SECRET/NOFORN level. But it says it was declassified by DNI Clapper three days earlier on June 23, 2014!

This temporally fluid approach to declassification could have many useful applications.

 

Rep. Holt Adds Funds for IC Whistleblower Support

Congressman Rush Holt (D-NJ) devised an amendment to the 2015 Defense Appropriations bill that would earmark $2 million for investigation of intelligence community whistleblower complaints.  The amendment was approved by the House of Representatives on June 18.

The money was taken from the intelligence community management account and allocated to the IC whistleblowing and source protection directorate within the IC Office of the Inspector General.

“Currently, this directorate is literally a one-man operation,” Rep. Holt explained on the House floor.

“Given the fact that there are tens of thousands of Federal employees and contractor who work for the intelligence community elements, it is not realistic to expect the IC inspector general to be able to receive and investigate effectively any and all valid complaints from conscientious internal whistleblowers through a single investigator, no matter how talented that investigator may be.”

“This $2 million reallocation of funds will help the community whistleblowing and source protection directorate hire more needed additional investigators and support staff and will fund outreach and education efforts across the intelligence community,” Rep. Holt said. “This amendment will ensure that they have resources to respond to legitimate concerns.”

The amendment was approved on a voice vote.

Rep. Holt stressed the need for improved protections for intelligence agency whistleblowers in a May 30 op-ed we co-authored on MSNBC.com.

IC Media Policy Should be Revised, Sen. Wyden Says

An Intelligence Community Directive that prohibited unauthorized contacts with the news media is overbroad and needs to be corrected, said Sen. Ron Wyden last week on the Senate floor.

“I will tell you, I am troubled by how sweeping in nature this is,” Senator Wyden said about the Directive, ICD 119, issued last March. (See Intelligence Directive Bars Unauthorized Contacts with News Media, Secrecy News, April 21).

“The new policy makes it clear that intelligence agency employees can be punished for having ‘contact with the media about intelligence-related information’,” he said. “Make no mistake about it, that is so broad it could cover unclassified information. It does not lay out any limits on this extraordinarily broad term that I have described.”

“My hope is we can get this corrected because I think it is going to have a chilling effect on intelligence professionals who simply want to talk about unclassified matters on important national security issues– such as how to reform domestic surveillance or whether our country should go to war,” Sen. Wyden said on June 12.

The new IC media policy was discussed on the NPR program On the Media on June 13.