New Exemptions from 50 Year Declassification Approved

Most of the national security agencies in the executive branch have now been granted approval to exempt certain 50 year old classified information from automatic declassification.

The national security classification system normally requires declassification of classified documents as they become 25 years old, with several specified exemptions to allow continued classification up to 50 years.

Only “in extraordinary cases” may agency heads propose to exempt information from declassification when it is 50 years old, says President Obama’s 2009 executive order 13526. They must request and receive approval from the Interagency Security Classification Appeals Panel (ISCAP).

So it was somewhat disconcerting to see an updated Notice from the Information Security Oversight Office last week indicating that dozens of executive branch agencies have now been granted exemptions from declassification for 50 year old information, including all of the major national security agencies. The United States Mint, among others, was even granted an exemption for 75 year old classified information.

It appeared that the extraordinary had become quite ordinary.

But that initial impression is not correct, said John P. Fitzpatrick, director of the Information Security Oversight Office, which oversees the national security classification system.

In the first place, the exemptions from declassification are limited to specific categories of information that the ISCAP was persuaded “would clearly and demonstrably cause damage to national security.”

“Blanket exemptions were not approved,” Mr. Fitzpatrick said.

And proposed exemptions for particular categories of information were critically reviewed by the ISCAP members, he said. “They often required agencies to make specific changes to their proposed declassification guide before granting approval.”

Because the ISCAP is a presidential body (of which he is the Executive Secretary), Mr. Fitzpatrick said he could not provide detailed information about its deliberative process. But he responded to several questions on the subject in general terms.

“During the evaluation of agency exemptions the ISCAP required that certain agencies significantly narrow their submissions,” he said. “In some cases, the ISCAP required that an agency remove a requested exemption element.”

Moreover, exemption from “automatic declassification” does not necessarily mean exemption from declassification altogether. Individual “records exempted from automatic declassification remain subject to mandatory declassification review,” he noted.

Why does the U.S. Mint need an exemption from declassification for 75 year old information? Is it some sort of anti-counterfeiting issue? No, he said, that’s not it.

The U.S. Mint declassification exemption, “which is perhaps the most [narrowly] targeted of all ISCAP-approved exemptions,” applies solely to “security specifications from the U.S. Bullion Depository at Fort Knox, which was built in the late 1930s,” Mr. Fitzpatrick said.

“Think ‘Goldfinger’,” he said.

Court Urged to Review State Secrets Documents

It is entirely proper for a court to conduct in camera review of documents and testimony that the government asserts are subject to the state secrets privilege, said the plaintiffs in a lawsuit challenging the constitutionality of the “no fly” list.

The Justice Department had argued that judicial review of privileged documents was “inappropriate” and asked Judge Anthony J. Trenga of the Eastern District of Virginia to reconsider his order requiring such review. (Gov’t Resists Court Review of State Secrets, Secrecy News, August 27.)

But “the state secrets privilege… was never intended to provide the federal government with a blank check to usurp the rights of Americans in novel and profound ways,” countered Gadeir Abbas, attorney for Gulet Mohamed, who is challenging the “no fly” procedure.

“This Court’s August 6th Order [requiring in camera review of the contested documents] is an appropriate exercise of its authority to subject the federal government’s limiting-principle-free assertion of the state secrets privilege to some scrutiny,” Mr. Abbas wrote in his September 5 response.

A ruling from the Court is pending.

Whether the government’s argument prevails or not, Mr. Abbas noted that the 2013 Watchlisting Guidance which the government sought to withhold has been published online by The Intercept.

Attorney General Holder “had asserted the state secrets privilege over this document, but because it is now publicly available, the Court can consider it in its entirety,” he wrote.

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.”

House Amendment Would Cut NSC Budget by a Third

The House of Representatives yesterday approved an amendment to cut the budget for the National Security Council by one third in response to NSC moves to block congressional access to information.

“Over the last few months, we have had several instances in which the National Security staff has mandated that the Department of Defense and other agencies selectively withhold information from congressional oversight committees,” complained Rep. Rodney Frelinghuysen (R-NJ), who introduced the amendment. It was not immediately clear which instances of withholding he was referring to.

“Accurate, complete, and timely reporting by the Department of Defense is essential for the [Appropriations] committee to conduct its oversight responsibilities,” added Rep. Peter Visclosky (D-IN), who endorsed the amendment to cut the NSC budget.

“Over the past few years, the size of the National Security Council’s staff has grown, and it appears that they have moved beyond their Presidential advisory role to involve themselves in decisions which are not in their purview,” said Rep. Frelinghuysen.

The amendment to reduce the FY 2015 NSC budget by $4.2 million, or approximately one-third, passed the House on a voice vote.

Overclassification: Is There a Limit?

Is there any act of overclassification that is so egregious that the classifier would be held accountable for abusing his classification authority?

The answer is unknown, since no one has ever been held accountable in such a case.

As far as can be determined, no classifier has ever been found to have willfully or culpably defied the rules set forth in the President’s executive order on national security classification.

In a complaint filed last year with the Information Security Oversight Office (ISOO), a Marine Corps officer argued that private video recordings and related “trophy images” including one depicting Marines urinating on human remains in Afghanistan had been classified in violation of the executive order.

Major James W. Weirick asked ISOO Director John F. Fitzpatrick to render a judgment that the urination video and related images had been improperly classified. Among other reasons, Major Weirick wrote that they originated as private documents, that one video had been posted online and that all were outside of the control of the U.S. Government, a prerequisite for classification.

“This video was captured on a personal video recorder and only became known to the U.S. Government after it surfaced on YouTube, and other media outlets, in January 2012. The Government could never account for all the copies of this information and made no attempt to account for this information,” Major Weirick wrote in his November 14, 2013 complaint.

In a May 30 response, ISOO Director John P. Fitzpatrick said he took the complaint seriously and that he had undertaken a review of the matter, but that he ultimately decided that it did not require corrective action.

Mr. Fitzpatrick “met with all USMC officials directly involved in the decision to classify” as well as with Major Weirick. He determined that the video that had been uploaded to YouTube had in fact been specifically excluded from the original classification decision (although dozens of other, similar videos and photographs were classified).

“I spoke at length with the original classification authority (OCA) who made the classification decision. I am convinced that the primary motivation for the classification decision was the safety of U.S. military personnel in Afghanistan and the protection of specific tactics, techniques, procedures, and equipment,” Mr. Fitzpatrick wrote in his May 30, 2014 response to Major Weirick.

J. William Leonard, who was Mr. Fitzpatrick’s predecessor as ISOO Director, expressed dismay at the ISOO decision not to pursue the matter further.

He said that the classified images could not be properly classified because they were not under effective or exclusive U.S. government control. “The USG had control of copies of the images, but not the images themselves,” which had been freely and informally exchanged for months. “The same rationale that applied to not classifying the YouTube video also applied to the other images as well since there were undoubtedly other copies beyond the government’s control.”

“Even if you accepted the claim regarding the need to protect sensitive TTP [tactics, techniques and procedures], the troubling claim of both USMC and ISOO is that it was entirely appropriate to classify images and video that depicted nothing more than Marines posing with corpses, i.e. the ‘trophy’ photos.  Such photos depicted nothing more than unlawful conduct in a war zone,” Mr. Leonard said.

“I am extremely concerned that the integrity of the classification system continues to be severely undermined by the complete absence of accountability in instances such as this clear abuse of classification authority,” Mr. Leonard wrote in an endorsement of Major Weirick’s complaint.

“The provisions of the [executive] order establishing accountability are more feckless than the 55 mph speed limit on the Capital Beltway,” Mr. Leonard said. “At least on the Beltway, if you go fast enough you’ll eventually get a ticket. In the classification system, by virtue of never holding anyone or any agency accountable for abusing the system, we really don’t know how far you can go.”

    *    *    *

A 2012 classification guide issued by U.S. Central Command authorizes classification of information if its disclosure would “embarrass any Coalition members” (at pp. I-4 to I-5).

This provision appears to be inconsistent with Executive Order 12356, Section 1.7, which states: “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: [...] prevent embarrassment to a person, organization, or agency.”

House Intelligence Report: No Second Thoughts

Of the many lessons to be learned from the unauthorized disclosures of classified intelligence information by Edward Snowden, one of them is that the congressional intelligence oversight process did not function properly in the years leading up to those disclosures.

It seems indisputable that the intelligence oversight committees did not accurately comprehend or effectively represent the full spectrum of public concern over intelligence surveillance practices. Had they done so, current efforts to limit or revise those practices would have been unnecessary.

But in its new report on the intelligence authorization act for Fiscal Years 2014 and 2015, the House Permanent Select Committee on Intelligence (HPSCI) does not pause for any kind of reflection, let alone self-criticism. It does not inquire why the intelligence oversight process has seemed inhospitable to the kinds of public concerns that emerged in Snowden’s wake. It does not consider whether the Committee’s own practices need to be altered to provide for greater public engagement. It does not even mention Snowden’s name, referring instead to “a former NSA contractor.”

Rather, the new intelligence bill’s primary response to the Snowden episode is to increase the rigor and intensity of current personnel security practices.

“Over the past year, massive unauthorized disclosures of classified intelligence information caused immense damage to our national security. The Intelligence Community might have been able to prevent those unauthorized disclosures if it continuously evaluated the backgrounds of employees and contractors,” the House Committee report asserted.

“Continuous evaluation allows the IC to take advantage of lawfully available government and public information to detect warning signals that the current system of five-year periodic reinvestigation [for renewal of security clearances] misses. That information may include: foreign travel; reports of foreign contacts; financial disclosure information; checks of criminal, commercial marketing, and credit databases; and other appropriate publicly available information,” the report said.

But the Committee did not explain how closer scrutiny of any of these categories of information could have prevented the Snowden disclosures. If Snowden is neither a spy nor in search of financial gain, then none of these factors would have assisted in anticipating or preventing his actions, and an altogether different type of response would be needed.  But the Committee was not prepared to consider that possibility.

The new House Committee report includes several other noteworthy features:

*  “The Committee’s concerns about insufficient intelligence funding… are exacerbated by the great expense necessary to remediate the damage from illegal disclosures of classified information.”

*  The House bill would require declassification review of documents collected in the May 2011 Abbottabad, Pakistan mission that killed Osama bin Laden.

*  The bill would elevate the Inspector General of the National Security Agency, making the position subject to presidential appointment and Senate confirmation.

*  The bill would require the President to establish a written plan for how to respond to an unauthorized disclosure of a covert action program.

*  The bill would require the Director of National Intelligence to submit an annual report to Congress on violations of law or executive order by Intelligence Community personnel.

 

FISA Annual Report Recedes in Importance

For many years, the Justice Department’s annual report to Congress on the use of the Foreign Intelligence Surveillance Act was a primary source of public information on intelligence surveillance activity and on the workings of the Foreign Intelligence Surveillance Court. Today, that is less true than ever before.

The latest annual report, released by DOJ yesterday, indicated that in 2013 the Government submitted 1,655 applications for electronic surveillance, physical search or both. Of the 1,588 applications that included electronic surveillance, none were denied by the Court. But that hardly provides an accurate sense of the scope or the scale of intelligence surveillance activity.

The significance of this information, and other statistical data on access to “business records” and the use of national security letters, has receded in the wake of the far more substantial disclosures of the post-Snowden era. For example, we now know that the bland term “business records” extends in principle to everyone’s telephone call records.

In truth, the annual DOJ reports to Congress were never very informative, and they never provided useful data that could inform public policy in a practical way. They represented a facade of transparency with little or no real content. Today, they are practically irrelevant.

More informative and altogether more important is the new website of the Foreign Intelligence Surveillance Court, which has recently been revamped.

Countering CIA’s Conflict of Interest in Declassification

Last week the Senate Intelligence Committee voted to submit the 480-page executive summary, findings and conclusions of its five-year investigation into the post-9/11 CIA Detention and Interrogation Program for declassification review. But in an obvious conflict of interest, the review is expected to be performed by the CIA itself.

“The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen,” said Sen. Dianne Feinstein, the chair the Senate Intelligence Committee, in an April 3 statement. “This is not what Americans do.”

The standard process for declassification therefore puts the CIA in the awkward and untenable position of deciding whether to enable (or to prevent) the release of information that portrays the Agency itself, or some of its personnel, as having engaged in behavior that was brutal, lawless, and unaccountable.

Instead, it is the White House, not the CIA, that should lead the declassification process, said Sen. Feinstein, as reported today by McClatchy Newspapers.

“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” Sen. Feinstein wrote. (Feinstein: CIA should not lead declassification review of report about interrogation tactics by Ali Watkins, McClatchy, April 8).

However, it may not be possible to exclude CIA from the declassification process altogether, since it was CIA that generated and classified most or all of the information at issue. While the President certainly has the authority to declassify the report, the White House would be unlikely to possess the detailed knowledge of the underlying records that would be needed to do so independently.

But there are ways to minimize and counteract CIA’s conflict of interest in declassification.

First of all, the Senate Intelligence Committee will be in a position to make its own judgment as to the validity of any CIA redactions of the report. Unlike the typical FOIA requester who pursues a document he has never seen, the Senate Committee knows exactly what is in the report, which it produced. If CIA moves to withhold information in ways that are frivolous, questionable or unfounded in genuine national security concerns, the Committee will recognize that immediately and will be able to elevate those specific disagreements with the CIA to the White House for resolution.

Another possible option would be for the Senate Committee to engage the services of the Public Interest Declassification Board (PIDB).

That Board’s statutory purpose is, among other things, “To review and make recommendations to the President in a timely manner with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records.”

While the PIDB, which is made up of non-governmental personnel, cannot declassify anything on its own authority, it could serve to backstop the regular declassification process with an independent perspective, and could also provide political cover for the President to overrule an unwarranted refusal to declassify.

In 2006, members of the Senate Intelligence Committee asked the Public Interest Declassification Board to review an Administration decision to classify portions of two Committee reports on prewar intelligence on Iraq. At the time, the Board said it doubted that it could carry out the review without White House authorization.

So Senators Ron Wyden and Russ Feingold introduced legislative language to clarify that the Board is authorized to review declassification proposals — or evaluate agency refusals to declassify — at the initiative of a congressional committee of jurisdiction. Their measure was enacted into law in the FY 2010 Intelligence Authorization Act.

While this function has never yet been performed by the Board, it remains available to Congress at its discretion.

“The classification system exists to protect national security, but its outdated design and implementation often hinders that mission,” wrote PIDB chair Amb. Nancy E. Soderberg in a November 2012 letter to President Obama transmitting a Board report.

“The system is compromised by over-classification and, not coincidentally, by increasing instances of unauthorized disclosures. This undermines the credibility of the classification system, blurs the focus on what truly requires protection, and fails to serve the public interest. Notwithstanding the best efforts of information security professionals, the current system is outmoded and unsustainable; transformation is not simply advisable but imperative,” she wrote.

Intelligence Whistleblower Law Has Been Used Infrequently

The Intelligence Community Whistleblower Protection Act (ICWPA) has rarely been relied upon by intelligence agency whistleblowers, according to a newly released 2009 report from the Office of the Director of National Intelligence Inspector General.

During the ten year period after the Act came into effect in January 1999, intelligence agency Offices of Inspector General (OIGs) said that only ten whistleblower complaints had been filed.

“According to the questionnaire responses we received, since 1 January 1999, 4 IC OIGs received a total of 10 ICWPA complaints,” the October 2009 report said.

“The CIA and DoD OIGs received four complaints, and the OIGs for DOJ and ODNI each received one complaint.”

“Of the 10 complaints, 3 were deemed by the CIA and DOD OIGs to be ‘urgent concerns,’ as defined by the ICWPA, and all 3 were found to be credible. The CIA and DOD OIGs notified Congress of the three complaints, as required by the statute.”

“Of the remaining six complaints, all… were deemed ‘not credible’ by the respective OIGs.”

“Of the 10 complaints received by the IC OIGs during the 10-year reporting period, 3 of them — 2 from CIA and 1 from DoJ — included allegations of reprisal.”

“However, the CIA OIG found no evidence of reprisal when it investigated these allegations. The DoJ OIG referred the complaint to the DoJ Office of Professional Responsibility, which investigated the matter and found no evidence of reprisal.”

“The OIGs also reported that none of the complaints submitted to the IC OIGs was deemed fraudulent or made in ‘bad faith’,” the report said. But the contents of the complaints and any consequences resulting from them were not described in the report.

See the Report to Congress on the use of the Intelligence Community Whistleblower Protection Act submitted by ODNI Inspector General Roslyn A. Mazer, October 19, 2009.

The creation of an Intelligence Community-wide Inspector General in 2010 included establishment of a new IC IG Hotline, which “provides a confidential means for IC employees, contractors, and the public to report fraud, waste, and abuse.”

During a recent six-month period, the IC IG internal Hotline received 70 contacts from IC personnel as well as 77 contacts from the general public, according to a March 2013 semi-annual report. The results of those contacts, i.e. whether they prompted an investigation and corrective action, were not reported.

By comparison, the Department of Defense Hotline received more than 15,000 contacts during a six-month period ending September 2013. The DoD Inspector General opened 1,341 cases as a result.

DoD has a budget and a workforce that are roughly an order of magnitude larger than those of the Intelligence Community, so the two cannot be directly compared.

But it appears that whistleblower reporting of suspected waste, fraud and abuse has been institutionalized and routinized to a far greater extent in the Defense Department than within the Intelligence Community, where it remains uncommon.