US to Detainee: The Government “Regrets Any Hardship”

In an unusual gesture, the U.S. Government last week apologized to Abdullah al-Kidd, a U.S. citizen who was arrested in 2003 and detained as a material witness in connection with a terrorism-related case.

Mr. Al-Kidd, represented by American Civil Liberties Union attorney Lee Gelernt, challenged his detention as unconstitutional and inhumane. Now the case has been settled, with an official apology and a payment of $385,000.

“The government acknowledges that your arrest and detention as a witness was a difficult experience for you and regrets any hardship or disruption to your life that may have resulted from your arrest and detention,” wrote U.S. Attorney Wendy J. Olson in a January 15 letter.

This sort of admission of regret is rare. The government apologizes much less frequently than it perpetrates injuries that are inappropriate or unwarranted. So, for example, the recent Senate report on post-9/11 CIA interrogation practices noted that at least 26 individuals had been “wrongfully detained.” But legal attempts to recover damages are typically foreclosed by courts based on “separation of powers, national security, and the risk of interfering with military decisions.”

Why not apologize and compensate those who have been abused and mistreated, starting with those individuals who by all accounts are innocent of any wrongdoing? It would be the just and honorable thing to do, both for the intelligence community and for the country. And it would be most powerful (and most “therapeutic”) if the IC undertook this step at its own initiative, rather than waiting to be compelled by others.

“Personally I agree,” a senior U.S. intelligence community legal official said privately, “for the reasons you say and some others. [But] getting it done is a lot harder.”

And so it is. Even as it apologized to Abdullah al-Kidd, the U.S. Government insisted on a stipulation that the settlement of the case “is not, is in no way intended to be, and should not be construed as, an admission of liability or fault on the part of the United States.”

SSCI Wants Copies of Full Torture Report Returned

Updated below

There is a new sheriff in town. Is that the message that Senator Richard Burr, the new chair of the Senate Select Committee on Intelligence, is trying to send?

Senator Burr reportedly wrote to President Obama last week to ask that all copies of the classified 6,700 page Committee report on CIA interrogation practices be returned immediately to the Committee. While the redacted summary of the report has been publicly released and is even something of a bestseller for the Government Printing Office as well as a commercial publisher, the full report has not been made public. And Senator Burr seems determined to keep it that way.

Senator Burr’s letter was reported in C.I.A. Report Found Value of Brutal Interrogation Was Inflated by Mark Mazzetti, New York Times, January 20. (More: Washington Post, Huffington Post.)

Senator Dianne Feinstein, who chaired the Committee while the report was produced, scorned the request for its return.

“I strongly disagree that the administration should relinquish copies of the full committee study, which contains far more detailed records than the public executive summary. Doing so would limit the ability to learn lessons from this sad chapter in America’s history and omit from the record two years of work, including changes made to the committee’s 2012 report following extensive discussion with the CIA,” she said in a statement.

Among other things, the proposed return of the full report may be intended to prevent its potential future accessibility through the Freedom of Information Act, which does not apply to records in congressional custody.

But if so, this seems short-sighted and probably futile, given that all of the evidentiary material on which the report is based originated in the executive branch anyway. Moreover, the Committee report has spawned an entire literature of agency evaluations and responses (such as the so-called Panetta Review). That literature belongs to the agencies, and sooner or later it should be subject to public disclosure regardless of the fate of the SSCI report.

Update 1/22/15: Jason Leopold of VICE News has a thorough account of this episode to date here, including a copy of the letter from Senator Burr and a letter from Senator Feinstein in response.

“Insider Threat” Program Lags Behind Schedule

The government-wide effort to contain the threat to classified information and sensitive facilities from trusted insiders is falling behind schedule.

Currently, the anticipated achievement of an Initial Operating Capability for insider threat detection by January 2017 is “at risk,” according to a new quarterly progress report. Meanwhile, the date for achieving a Full Operating Capability cannot even be projected. See “Insider Threat and Security Clearance Reform, FY2014, Quarter 4.”

One aspect of the insider threat program is “continuous evaluation” (CE), which refers to the ongoing review of background information concerning cleared persons in order to ensure that they remain eligible for access to classified information and to provide prompt notice of any anomalous behavior.

The Office of the Director of National Intelligence was supposed to achieve “an initial CE capability for the most sensitive TS [Top Secret] and TS/SCI population” by December 2014.  The latest quarterly report on the Insider Threat program noted that this milestone is “at risk.” In fact, it was missed.

“We did not meet” the December 2014 milestone for an initial CE capability, confirmed ODNI spokesman Eugene Barlow, though he said that “we’ve made considerable progress” in the Insider Threat program overall.

Nor has a revised milestone date for the initial CE capability been set, he added. But “we continue to aggressively push forward” and the desired function will be rolled out over the next few years, he said.

The Department of Defense is “on track” to provide continuous evaluation of 225,000 agency personnel by the end of 2015, and to expand that number to 1 million employees by 2017, according to the quarterly report. Actual achievements in individual agencies are classified.

As a general matter, the Insider Threat program faces both technological and “cultural” obstacles.

The information technology structures that are in place at most executive branch agencies are not optimized to support continuous evaluation or related security policies. Adapting them to address the insider threat issue is challenging and resource-intensive. Nor are agency policies and practices consistent across the government or equally hospitable to security concerns.

But it’s worth noting that the uneven performance described in the quarterly report reflects a degree of public candor that is unusual in security policy.  Instead of presenting assurances that everything is fine in the Insider Threat program, the report acknowledges that some things are not fine and will not be fine for an unspecified time. That is refreshing and even, in its straightforward approach to the issue, somewhat encouraging.

IC Inspector General Finds No Overclassification

“We do overclassify,” Director of National Intelligence James R. Clapper, admitted at his 2010 confirmation hearing. It’s a theme he has reiterated on a number of occasions on which he has spoken of the need for increased transparency in intelligence.

So it comes as a surprise and a disappointment that a new study of the subject from the Intelligence Community Inspector General failed to identify a single case of unnecessary or inappropriate classification.

“IC IG found no instances where classification was used to conceal violation of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency; restrain competition; or prevent or delay the release of information not requiring protection in the interest of national security,” the December 2014 report said.

When it comes to overclassification, ODNI is far from the worst offender. But the IC IG report purports to address classification trends across the intelligence community. And its conclusions are hard to reconcile with the public record, to say the least.

Thus, at the same time that the Inspector General was finding no use of classification to prevent or delay the release of information not requiring protection, the release of the Senate Intelligence Committee report on CIA interrogation practices was being hamstrung and delayed for months or years by dubious, inconsistent classification claims.

“Members of the Committee have found the declassification process to be slow and disjointed, even for information that Congress has identified as being of high public interest,” Sen. Dianne Feinstein wrote to the President last month.

Today the New York Times reported on a 2012 report on intelligence surveillance practices that had been withheld in its entirety until it was partially released in response to a lawsuit brought by the Times. Numerous other examples of the misapplication of classification authority could be cited. Yet all of them were somehow missed or ignored by the IC Inspector General.

Meanwhile, some senior officials in the intelligence community are rethinking current classification practices and policies because they have concluded, contrary to the thrust of the new IG report, that the status quo is unsatisfactory.

“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,” said ODNI General Counsel Robert S. Litt in a public speech last year. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected.”

IC Inspector General Oversees the Intelligence Community

Updated below

The Intelligence Community Inspector General (IC IG) received a tip last year that the Intelligence Community might have assembled a database containing US person data in violation of law and policy.

“A civilian employee with the Army Intelligence and Security Command made an IC IG Hotline complaint alleging an interagency data repository, believed to be comprised of numerous intelligence and non-intelligence sources, improperly included U.S. person data,” the IC IG wrote. “The complainant also reported he conducted potentially improper searches of the data repository to verify the presence of U.S. persons data. We are researching this claim.”

The resolution of that complaint concerning improper collection of U.S. person data was not disclosed. But the IC IG evidently found it credible enough to justify a rare report to the White House Intelligence Oversight Board (IOB).

Update, 12/04/14: The IC IG said it did not corroborate the complaint. “We researched this allegation to determine whether the data repository was operating with sufficient internal controls to provide reasonable assurance that the collection, retention and dissemination of information complied with applicable laws, executive orders, policies, and regulations. We reached a preliminary conclusion that this was the case and thus had no basis for further review.” The case was closed on June 4, 2014.

The report to the IOB was noted in the IC Inspector General’s Semi-Annual report for October 2013 to March 2014 that was released this week (in redacted form) under the Freedom of Information Act.

The IC Inspector General, I. Charles McCullough III, has oversight responsibility both for the Office of the Director of National Intelligence (ODNI) and for the Intelligence Community as a whole (but not for its individual member agencies). In addition to monitoring compliance with the law, the IC IG deals with a broad range of administrative, budgetary and personnel issues, several of which are described in the new report.

So, for example, “[An intelligence] contractor misconduct investigation substantiated that a contractor employee routinely misused government equipment and systems to engage in inappropriate and prurient Internet chat over an extended period of time.”

Judging from the Semi-Annual Reports, the IG is also capable of challenging senior ODNI leadership when there is cause to do so.

“An ODNI Senior Official engaged in conduct unbecoming a federal employee while on TDY [temporary duty] conducting official ODNI business,” according to the Semi-Annual Report for March-September 2013, which was also released this week.

“The Senior Official exhibited poor personal judgment that created circumstances which reflected poorly on the ODNI and potentially impaired his ability to perform his duties,” the IG report said. The case was referred to the ODNI Chief Management Officer, but further details such as the identity of the Senior Official were not divulged.

In the concentric circles of U.S. intelligence oversight, Inspectors General are close to the center — receiving allegations, interviewing witnesses, formulating responses, and taking appropriate action.

Though heavily redacted, the new Semi-Annual Reports include multiple points of interest, including these:

**    During the six-month period ending in March 2014, the IC IG processed 5 whistleblower complaints of waste, fraud or abuse, 3 “urgent concern” complaints, 2 requests for external review under the provisions of Presidential Policy Directive 19, and 1 whistleblower reprisal complaint. The outcomes of these cases were not described.

**    During the six-month period ending September 2013, the IC IG investigated two cases of unauthorized disclosures, neither of which was substantiated. There were no such investigations in the following six-month period.

**    “ODNI does not have a policy or process for notifying CIA Covert Capabilities Center when an employee or detailee separates from ODNI or is reassigned,” the IC IG reported. The CIA “Covert Capabilities Center” is not a familiar entity.

**    “An adverse work environment exists” in the IC Equal Employment Opportunity and Diversity Office.

**    In the six-month period ending last March, the IC IG complaint hotline “received 135 contacts, 48 internal contacts and 87 external contacts from the general public. ”

**    And while most ODNI and IC employees are directed to have no contacts with the media without prior authorization, the IC Inspector General made special arrangements for himself and his staff:  “We worked with PAO [ODNI Public Affairs Office] so they understood the need for the IC IG to work independently with media contacts to preserve IC IG objectivity and independence.”

In a four-part series this week, the Washington Examiner reported allegations that some agency Inspectors General are improperly subservient to, and protective of, their agency leadership.

Air Force Intelligence: No Human Experimentation Here

In the United States Air Force, “intelligence components do not engage in experimentation involving human subjects for intelligence purposes.”

That unsolicited assurance was reiterated in the latest revision of Air Force Instruction 14-104, Oversight of Intelligence Activities, November 5, 2014.

“For purposes of this instruction, the term ‘human subjects’ includes any person, whether or not such person is a US person. No prisoners of war, civilian internees, retained, and detained personnel as covered under the Geneva Conventions of 1949 may be the subjects of human experimentation.”

The Instruction also addressed domestic imagery collection, reporting of “questionable intelligence activities,” and other topics.

2014 Intelligence Budget Figures Released

The National Intelligence Program received a total appropriation of $50.5 billion in fiscal year 2014, the Office of the Director of National Intelligence disclosed yesterday, as required by law. The Military Intelligence Program was funded at $17.4 billion in FY 2014, the Department of Defense said. Current and past intelligence budget disclosures can be found here.

Marshall Erwin, a former analyst at the Congressional Research Service and the CIA, said that in principle, the intelligence community should be able to “absorb recent cuts quite easily.” But “whether the IC will actually absorb cuts without degrading capabilities is a separate question. While it has the means to do so, thus far decisionmakers have not proven up to the task.” He presented his perspective on trends in intelligence spending in “Doing Way More with Much Less: Intelligence by the Numbers” on the new blog Overt Action.

Overt Action is part of an effort by Erwin and several colleagues “to create a venue for intelligence professionals to more effectively engage in public debate.”

Defense Intelligence Mission Expands

On October 24, the Pentagon issued an updated version of DoD Directive 5143.01 defining the role of the Under Secretary of Defense (Intelligence), the Department’s principal intelligence advisor and manager of military intelligence programs.

The new directive is about 30% longer than the 2005 version that it replaces.

The differences between the two directives reflect changes in the global environment as well as in the intelligence mission, and in the role of the USD(I) in particular.

Cybersecurity. Insider threats. Unauthorized disclosures of classified information. Biometrics. None of these terms and none of these issues were even mentioned in the 2005 edition of the DoD intelligence directive.

But all of them and more are now part of the expanded portfolio of authorities and responsibilities of the Under Secretary of Defense for Intelligence, who also serves as Director of Defense Intelligence and principal advisor to the DNI on defense intelligence matters.

Meanwhile, intelligence spending has been on a downward slope for the past few years, and the FY2015 request for the Military Intelligence Program was about $1.3 billion below the request for the previous year, which was $18.6 billion. (The FY2014 intelligence appropriations for national and military intelligence programs are due to be disclosed this week.)

“Intelligence is a major source of U.S. advantage. It informs wise policy and enables precision operations. It is our front line of defense. The challenges we face, however, are increasing and becoming more complex, and our resources are declining,” said Michael G. Vickers, the current USD(I), at an April 4 hearing of the House Armed Services Committee.

“We have five defense intelligence operational priorities: countering terrorism, particularly countering the threat posed by al-Qaida; countering the proliferation of weapons of mass destruction and associated delivery systems; countering the actions of repressive governments against their people, such as in Syria; countering state-on-state aggression; and countering cyberthreats,” he said then.

“To address the intelligence gaps that exist within these operational priority areas, we are focused on enhancing defense intelligence capabilities in five areas: enhancing global coverage; improving our ability to operate in anti-access/area denial, or A2AD, environments; sustaining counterterrorism and counterproliferation capabilities; continuing to develop our cyberoperations capabilities; and strengthening our counterintelligence capabilities and reforming our security clearance processes to minimize insider threats,” Mr. Vickers testified.

The position of Under Secretary of Defense (Intelligence) was established by the defense authorization act for FY 2003 to improve management and coordination of defense intelligence programs. The office has previously been occupied by Stephen Cambone and James R. Clapper, Jr., the current DNI.

The new DoD directive authorizes the Under Secretary to “communicate with… members of the public… and non-governmental organizations.” However, “communications with representatives of the news media” are to be conducted through the Office of Public Affairs, the directive said.

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.