Pre-Publication Review Must Be Timely & Fair, Says HPSCI

Current and former intelligence community employees (as well as some other government employees) are obliged to submit their writings for official review prior to publication in order to screen them for classified information. This is often an onerous, time-consuming and frustrating process. It sometimes appears to authors to be conducted in bad faith.

The House Permanent Select Committee on Intelligence has instructed the Director of National Intelligence to prepare a new, IC-wide pre-publication review policy that will “yield timely, reasoned, and impartial decisions that are subject to appeal.”

In its new report on the FY2017 intelligence authorization act, the Committee said it “is concerned that current and former IC personnel have published written material without completing mandatory pre-publication review procedures or have rejected changes required by the review process, resulting in the publication of classified information.”

“The Committee is also aware of the perception that the pre-publication review process can be unfair, untimely, and unduly onerous and that these burdens may be at least partially responsible for some individuals ‘opting out’ of the mandatory review process.”

The Committee therefore directed the DNI to develop a uniform new policy that clearly sets forth what kinds of materials must be reviewed, with guidance for conducting and completing the review in a timely manner, and with a prompt and transparent appeal process.

The pre-publication review process was critiqued recently by Jack Goldsmith and Oona A. Hathaway in the Washington Post (The Government’s Prepublication Review Process is Broken, December 25, 2015) and in Just Security (The Scope of the Prepublication Review Problem, and What to Do About It, December 30, 2015). I also commented in Just Security (Fixing Pre-Publication Review: What Should Be Done?, January 15, 2016).

The new requirement “to improve the timeliness and fairness of the prepublication review process throughout the IC” was introduced by Rep. Jim Himes (D-CT), a member of the House Intelligence Committee. The FY2017 intelligence authorization act was approved by the full House of Representatives yesterday following floor speeches on May 23.

Using Social Media in Background Investigations

A directive signed by the Director of National Intelligence yesterday formally authorizes the use of social media by official investigators who are conducting background investigations for security clearances.

See Collection, Use, and Retention of Publicly Available Social Media Information in Personnel Security Background Investigations and Adjudications, Security Executive Agent Directive 5, May 12, 2016.

The directive was crafted to avoid undue infringements on privacy.

Investigators will be limited to considering only publicly available postings. The subjects of a background investigation “shall not be requested or required” to provide passwords for access to non-publicly available materials or to make such materials available. Agencies will not be allowed to “friend” an individual for the purposes of gaining access to materials that are not otherwise available.

And the consideration of social media must be relevant to the official guidelines for granting access to classified information. That is, they must pertain to substance abuse, criminal conduct, foreign allegiance, or other such criteria.  See Adjudicative Guidelines for Determining Eligibility for Access to Classified Information, rev. December 29, 2005.

The utility of social media for background investigations remains to be demonstrated, particularly since any public posts that do not voluntarily advertise behavior that is at odds with official guidelines would not trigger investigative attention. A pilot project will be conduct to validate the approach before it is systematically included in the investigative process.

A hearing on Incorporating Social Media into Federal Background Investigations was held today by the House Committee on Oversight and Government Reform.

“The use of social media has become an integral, and very public, part of the fabric of most Americans’ daily lives, and it is critical that we use this important source of information to help protect our nation’s security,” said William R. Evanina, director of the National Counterintelligence and Security Center, in a statement to the House Committee.

Archivist Won’t Call “Torture Report” a Permanent Record

Archivist of the United States David S. Ferriero last week rebuffed requests to formally designate the Senate Intelligence Committee report on CIA interrogation practices a “federal record” that must be preserved.

Senators Dianne Feinstein and Patrick Leahy had urged the Archivist to exercise his authority to certify that the Senate report is a federal record.

“We believe that Congress has made it clear that the National Archives has a responsibility — as the nation’s record keeper — to advise other parts of the United States government of their legal duty to preserve documents like the Senate Report under the Federal Records Act, the Presidential Records Act, and other statutes,” Senators Feinstein and Leahy wrote in an April 13 letter.

The report qualifies for preservation as a permanent record, they said, “because it contains uniquely valuable information regarding the CIA’s detention and interrogation program under the Bush Administration,” among other reasons.

Two weeks later, dozens of non-governmental organizations led by the Constitution Project sent their own letter to the Archivist likewise urging him to make a formal determination that the Senate report is a federal record that by law must be preserved.

“The Senate study began as an examination of the CIA’s destruction of crucial video records of the torture program, which occurred without NARA’s knowledge or authorization,” the NGO letter said. “It would be sadly ironic if NARA knowingly allowed the Executive Branch to return the most comprehensive history of the CIA torture program” to Congress without preserving a permanent archival record of it.

But Archivist Ferriero was unmoved by the appeals.

“NARA has refrained from interceding in this matter because the issue is the subject of ongoing litigation,” he wrote in an April 29 reply to Senators Feinstein and Leahy, referring to a Freedom of Information Act lawsuit brought by the ACLU for access to the report. “As is routine with respect to any issue that is being litigated, we have coordinated with litigation counsel at DOJ handling the pending court case.”

He also asserted that the mere fact that executive branch agencies are in possession of the Senate report does not necessarily mean that it qualifies as a federal record. There is a “possibility that an agency could accept physical receipt of a document but maintain it in such a manner that the agency does not acquire legal custody for purposes of either the FRA [Federal Records Act] or the FOIA,” he wrote.

However, at this stage “it would not be appropriate for me to have a predisposed viewpoint in any particular case as to whether recorded information is or is not a federal record,” he said, implying that a final decision would be reached at some later stage.

The National Archives acknowledged receipt of the NGO letter (which was co-signed by the FAS Project on Government Secrecy), and said that a response to that letter would be provided in due course.

Otherwise, officials contacted by Secrecy News would not discuss the matter on the record. But what emerges from several conversations is something like this:

Although the Archivist has independent legal authority to determine the status of federal records under the Presidential and Federal Records Act Amendments of 2014, he remains an executive branch official and he is not politically autonomous. In the face of FOIA litigation, which takes precedence as a practical matter, it actually is “routine” (or at least unsurprising) for the Archivist to defer to the Justice Department and to abstain from unilateral action.

If the ongoing FOIA litigation ultimately led to a determination that the Senate report is a “record” for purposes of FOIA, then it would be easy for the Archivist to concur. If not, then it would be more difficult, but not altogether impossible, for the Archivist to conclude that the report is nevertheless a federal record. “The determination of record status under the FRA and the Freedom of Information Act (FOIA), while not identical, is similar,” the Archivist wrote.

In any event, while an immediate resolution of this dispute is foreclosed by the Archivist’s refusal to intervene, the larger question of the status of the Senate report as a federal record remains open.

Legal technicalities aside, it would be astonishing if the full Senate Committee report were not preserved for posterity one way or another, and eventually published. Even if it is not the last word on post-9/11 detention and interrogation, and even if not every word of it turns out to be true and correct, the Committee report has already become central to public discourse on the subject. If it became possible to erase it from the historical record in some kind of Stalinesque act of suppression, then we would all have bigger problems to worry about.

See related coverage from the Constitution Project, the National Security Archive, the Bill of Rights Defense Committee, and Courthouse News.

Punishing Leaks Through Administrative Channels

The Obama Administration has famously prosecuted more individuals for unauthorized disclosures of classified information to the media than all of its predecessors combined. But behind the scenes, it appears to have sought administrative penalties for leaks — rather than criminal ones — with equal or greater vigor.

“This Administration has been historically active in pursuing prosecution of leakers, and the Intelligence Community fully supports this effort,” said ODNI General Counsel Robert S. Litt in testimony from a closed hearing of the Senate Intelligence Committee in 2012 that was released last week in response to a Freedom of Information Act request.

But, he said, “prosecution of unauthorized disclosure cases is often beset with complications, including difficult problems of identifying the leaker, the potential for confirming or revealing even more classified information in a public trial, and graymail by the defense.”

Therefore, Mr. Litt said, in 2011 Director of National Intelligence James Clapper ordered intelligence agencies “to pursue administrative investigations and sanctions against identified leakers wherever appropriate. Pursuant to this DNI directive, individual agencies are instructed to identify those leak incidents that are ripe for an administrative disposition….”

Administrative penalties could include termination of employment, loss of security clearance, fines, or other adverse consequences. The number of individuals who were in fact sanctioned as a result of the ensuing “emphasis on administrative dispositions of leak investigations” was not disclosed. But “by advocating for administrative action in appropriate cases, the DNI hopes that more leakers will be sanctioned, and others similarly situated will be deterred,” he said at that time.

The 2012 Senate Intelligence Committee hearing pre-dated the classified disclosures in 2013 by Edward Snowden, who was obviously not deterred.

In a 2014 memorandum, Homeland Security Advisor Lisa O. Monaco said that “Recent unauthorized disclosures have unfortunately underscored the need to vigilantly safeguard our Nation’s most sensitive intelligence information.” The memo detailed numerous “near-term measures… aimed at further reducing the risk of additional high-impact disclosures.”

Yet “technical fixes alone cannot fully mitigate the threat posed by a determined insider,” she wrote. “As a result, [the corrective steps] include measures to improve business practices, enhance the security culture across the workforce, and reduce the unique risks associated with ‘privileged’ users.”

See “Near-term Measures to Reduce the Risk of High-Impact Unauthorized Disclosures,” memorandum from Homeland Security Advisor Lisa Monaco, February 11, 2014.

The actual efficacy of the measures described, some of which are still being gradually implemented, has not been publicly reported.

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.”

Cross-Cutting Intelligence Issues, and More from CRS

A new report from the Congressional Research Service raises the possibility that polygraph testing of intelligence employees could be phased out in favor of “continuous evaluation” (CE), i.e. the automated monitoring of financial, criminal and other databases.

The notion was suggested in a CRS overview of selected intelligence policy issues, including budget management, the quality of analysis, big data, workforce diversity, global coverage, and transparency.

The new CRS report, written by Anne Daugherty Miles, does not make recommendations, but instead presents a series of questions for congressional consideration, such as:

**     “In light of the IC’s use of CE to continually monitor an employee’s social and financial activity, are polygraph examinations still necessary?”

**     “Are there portions of the IC budget that could be made more transparent to the American public without endangering national security?”

**     “Should the IC be expected to monitor every corner of the world every hour of the day?”

**     “What authorities are needed to enhance cooperation with outside experts?”

**     “Are the new principles of transparency sufficient? Can the DNI do more to promote transparency across the IC?” (The April 15 CRS report does not take note of the latest steps by DNI Clapper to invigorate IC implementation of the Fundamental Classification Guidance Review or to establish the IC Transparency Council.)

This particular CRS report does not address intelligence surveillance policy, whistleblower policy, or various other intelligence-related topics of current controversy or interest. See The U.S. Intelligence Community: Selected Cross-Cutting Issues, April 12, 2016.

Some other new or updated products from the Congressional Research Service include the following.

Contested Presidential Nominating Conventions: Brief Background and Questions, CRS Insight, April 15, 2016

Sexual Violence at Institutions of Higher Education, updated April 15, 2016

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, updated April 15, 2016

European Security and Islamist Terrorism, CRS Insight, updated April 18, 2016

Navy Littoral Combat Ship (LCS)/Frigate Program: Background and Issues for Congress, updated April 18, 2016

DNI Establishes Intelligence Transparency Council

The notion of “intelligence transparency,” which once would have been considered an oxymoron, is instead becoming institutionalized with the establishment of a new Intelligence Transparency Council. Director of National Intelligence James Clapper signed the Charter of the new Council on April 5.

The Council includes representatives of each of the 17 Intelligence Community member agencies. Its role is to identify and promote appropriate areas for intelligence-related transparency and specifically to coordinate and oversee the implementation of the 2015 Principles of Intelligence Transparency.

For a start, the Council is supposed to “ensure that the public has information that clearly presents the mission, authorities, and oversight mechanism that direct and guide the IC.”

Beyond that, it will also “serve as the principal mechanism to identify possible new priority IC transparency topics to be selected by the DNI and IC leadership for implementation” and it will “establish interagency working groups to address specific transparency topics, as appropriate, in order to advance IC transparency efforts.”

As an inward-looking body that mostly meets behind closed doors, the Intelligence Transparency Council seems to be an internal forum for grappling with questions of increased disclosure, rather than an obvious public relations ploy. The Charter envisions votes and procedures for resolving disagreements, implying that the Council could serve a decision-making function.

Significantly, the Charter signed last week by DNI Clapper will remain in effect for five years. This means that “intelligence transparency” is likely to endure as a problem and a challenge well into the next Administration.

DNI Clapper Embraces Review of Secrecy System

Director of National Intelligence James R. Clapper threw his weight behind the upcoming Fundamental Classification Guidance Review (FCGR), which requires executive branch agencies to review all of their classification guidance and to eliminate obsolete secrecy requirements every five years. (On the FCGR, see “Secrecy System to Undergo ‘Thoughtful Scrutiny’,” Secrecy News, March 28).

In an extraordinary memorandum sent to directors of five other intelligence agencies (CIA, DIA, NGA, NSA, and NRO), Director Clapper told them to seize the opportunity to overhaul current classification policy.

“This periodic review provides an ideal platform for the Intelligence Community (IC), as stewards of the nation’s most sensitive information, to take a leading role in reducing targeted classification activities that could extend to the larger Federal government,” Clapper wrote in his March 23 memo.

Ordinarily, the nuts and bolts of the classification system would be beneath the concern of senior agency officials. But DNI Clapper’s intervention changes that presumption. In effect, the Clapper memo focuses attention on what would otherwise be a routine mid-level bureaucratic function and elevates it to a senior-level imperative.

“I am requesting your personal involvement,” he wrote, instructing the intelligence agency directors to perform several additional steps above and beyond what the Fundamental Classification Guidance Review already requires.

Clapper asked for feasibility studies on reducing the number of IC Original Classification Authorities, on the utility of an IC-wide classification guide, on the elimination of the Confidential classification in the IC, and on a new initiative to promote discretionary declassification actions.

“Please comment on what would be required to implement a proactive discretionary declassification program distinct from the systematic, automatic, and mandatory declassification review programs” that already exist, the DNI wrote.

The history of secrecy reform in the U.S. government demonstrates that it is most effective — or that it is only effective — when it is driven by senior agency leadership. Not since Secretary of Energy Hazel O’Leary’s “openness initiative” in the 1990s has an agency head endorsed secrecy reform with the specificity and authority expressed by DNI Clapper.

“I believe your efforts will serve as a significant step forward in furthering our shared goals for greater openness and reduced classification activity while protecting legitimate national security interests,” he wrote to the intelligence agency directors.

Redacted Intelligence Budget Documents Released

For the coming decade, the Department of Defense Military Intelligence Program (MIP) will focus its new investments “on space protection, enhancing capabilities that provide intelligence in Anti-Access / Area Denial environments, improving intelligence support to Cyber operations, and improving Security.”

So says the FY 2016 Congressional Budget Justification Book for the MIP, which was released this week in heavily redacted form under the Freedom of Information Act.

Though the majority of the document has been withheld, the released portions nevertheless contain fragmentary observations of interest.

For example, “budget uncertainty impeded efforts to develop and maintain language professionals at the highest levels of proficiency to meet the challenges posed by our adversaries.”

“DoD fell two points short of meeting its FY 2014 target to fill 52% of Defense Intelligence Enterprise government authorized language-required positions with individuals possessing the required language proficiency, with a total fill rate of 49.4%.”

Earlier this month, the National Geospatial-Intelligence Agency also released minimal unclassified portions of its FY2015 Congressional Budget Justification Book.

ODNI Classification Guide Released

The “existence of the Office of the Director of National Intelligence (ODNI)” is Unclassified. So is “the fact that ODNI Headquarters is located within the Liberty Crossing Compound in the Tyson’s Corner Area of Virginia.”

However, “the names and abbreviations of ODNI locations in the Washington Metropolitan Area, both overt and covert” are classified Secret.

These determinations and many others of interest are compiled in a newly released ODNI Classification Guide, Version 2.1, September 30, 2014. The declassified Classification Guide was released by ODNI with limited redactions in response to a Freedom of Information Act request filed by Stephen Revilak.

“The Guide implements ODNI classification policy and procedures for the use and dissemination of ODNI national security information,” the document states.

It covers a wide range of intelligence policy, technology and operational areas involving ODNI that are potentially subject to classification. (Unfortunately, portions of the document released by ODNI are poorly scanned and several pages are cut off at the bottom. Hopefully, a corrected version will soon follow.) [Now fixed.]

“The absence of an item in the Guide does not imply that it is Unclassified,” the reader is cautioned.

Moreover, “The fact that some ODNI information is marked unclassified does not authorize public release,” the Guide states.