SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 91
September 17, 2008

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AN ARGUMENT FOR OPEN SOURCE INTELLIGENCE SECRECY

"There is altogether too much discussion about the deliverables that OSINT [open source intelligence] can produce," said Jennifer Sims, a former State Department intelligence official, at a DNI conference on open source intelligence last week.

Open source intelligence refers to intelligence that is derived from unclassified, legally accessible information sources.

But the fact that the underlying sources of OSINT are unclassified doesn't mean the resulting intelligence can be disclosed, said Dr. Sims, who is now director of intelligence studies at Georgetown University.

"If it is providing decision advantage [to policymakers], then it is sensitive" and it should be withheld from disclosure, she said. "And decision advantage has nothing to do with the classification of the sources and methods. It has to do with the insights that the intelligence can deliver."

Consequently, "OSINT needs to become a bit more closed-mouth about its deliverables," she said.

By the same token, said Dr. Sims, if it's not classified, then intelligence agencies should not be doing it.

"Democracies should sharply curtail classified intelligence organizations to the business that absolutely must be kept secret: gaining and keeping decision advantages in national security policy-making. Everything else should be unclassified and funded outside the intelligence establishment," she wrote in an email message.

"Of course, if the processing of open sources gains you those insights, then 'OSINT' must be one of the jobs that intelligence institutions perform. But the measure of its success will always be the competitive edge it provides; and edges disappear if you give them away."

The argument for greater open source intelligence secrecy suggests that U.S. intelligence agencies have been recklessly broadcasting OSINT products and thereby compromising the unique advantages that they provide. But most OSINT products are withheld from the public anyway.

And although some OSINT products have reportedly been included in the President's Daily Brief, few of them seem to offer operationally significant insights that could be compromised by disclosure.

"Copyright, not classification, is the main barrier to disclosure of OSINT products," said Kim A. Robson, deputy director of the DNI Open Source Center. But she added that "The better we get at OSINT, the more the need to classify it."

Dr. Sims' views were reported in "Analysis: Classifying open source intel?" by Shaun Waterman, United Press International, September 16:

A new recruitment video for the DNI Open Source Center presents the Center as it sees itself and would wish to be seen by potential recruits. A copy of the seven-minute video is posted here:


A BILL TO CHALLENGE SECRET LAW

New legislation would require the Attorney General to report to Congress whenever the Department of Justice issues a legal opinion indicating that the executive branch is not bound by an existing legal statute.

The bill, introduced September 16 in the Senate by Senators Russ Feingold and Dianne Feinstein, responds to the Bush Administration's use of secret opinions from the Justice Department Office of Legal Counsel (OLC) to circumvent binding legal restrictions on domestic surveillance, torture and other practices.

"The Bush Administration has relied heavily on secret OLC opinions in a broad range of matters involving core constitutional rights and civil liberties," said Senator Feingold.

"The administration's policies on interrogation of detainees were justified by OLC opinions that were withheld from Congress and the public for several years. The President's warrantless wiretapping program was justified by OLC opinions that, to this day, have been seen only by a select few Members of Congress. And, when it was finally made public this year, the March 2003 memorandum on torture written by John Yoo was filled with references to other OLC memos that Congress and the public have never seen--on subjects ranging from the Government's ability to detain U.S. citizens without congressional authorization to the Government's ability to operate outside the Fourth Amendment in domestic military operations."

"When OLC concludes that a statute passed by Congress does not bind the executive branch, Congress has a right to know that the executive branch is not operating under that statute, and to be apprised of the law under which the executive branch is operating. The bill I am introducing with Senator Feinstein codifies that right," Senator Feingold said.

See the introduction of the "OLC Reporting Act of 2008," September 16:


GUIDELINES FOR FBI NATIONAL SECURITY INVESTIGATIONS

As the Justice Department prepares to issue new guidelines for FBI national security investigations, a more complete version of the current guidelines that were issued in 2003 has recently surfaced.

Although the redacted guidelines released in 2003 are still posted on the Justice Department web site, some of the redactions in that document were rescinded in August 2007 on the authority of Attorney General Alberto R. Gonzales. A copy of those less-censored guidelines was obtained this week by Greg Nojeim of the Center for Democracy and Technology.

See "The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection," October 31, 2003, classification modified on August 2, 2007:

For comparison, the previously released version is posted here:

Among the previously redacted language that has now been disclosed is the statement that "Preliminary investigations are authorized, generally speaking, when there is information or an allegation indicating that a threat to the national security may exist." (Bottom of p. 3).

The newly disclosed version of the guidelines also addresses the legal standard for opening a full national security investigation; the investigative techniques that may be used in preliminary and full investigations; and more.

On September 12, Justice Department officials held a background briefing describing the contents of the proposed new guidelines that would replace the 2003 FBI national security investigative guidelines. The transcript of that briefing is here:

The American Civil Liberties Union said the proposed new guidelines went too far in lowering the threshold for initiating an investigation and threatened to infringe on protected first amendment activities.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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