Improving Declassification: Not Yet

A new report on improving declassification procedures in the U.S. intelligence community implicitly suggests that no such improvements are likely to emerge any time soon.

The report, published yesterday by the Office of the Director of National Intelligence in response to congressional direction, is largely devoid of new ideas and instead calls for greater “integration” and “coordination.”

“Improving the declassification process across the Community will require an integrated and multifaceted set of initiatives fully coordinated with organizations that have AD [automatic declassification] programs. No single step will suffice in addressing satisfactorily the areas for improvement that have been identified in this report.”

See Improving the Intelligence Community’s Declassification Process and the Community’s Support to the National Declassification Center, ODNI, December 2016.

The core of the report is in a section entitled “Proposals to Improve the IC’s Declassification Process.” But it does not actually present any declassification policy proposals. Instead, in a near-parody of a government report, it calls for establishment of new working groups to write other reports and generate further recommendations.

Thus, the “Proposal on Process” calls for “a Declassification Improvement Working Group (DIWG) to conduct a zero‐based study of the IC’s AD process and prepare a report–by a specified deadline– that includes recommended actions to increase the program’s effectiveness and efficiency across the Community.”

The “Proposal on Electronic Records” says that “A joint task force […] should be formed to aggressively pursue the identification, development, and validation of technological capabilities — tools and infrastructure — for incorporation in the AD [automatic declassification] process.” (Aggressively!)

This is not helpful. In fact, it is practically a declaration of helplessness.

The new report is lacking in specific actionable proposals that could be evaluated, debated, perhaps modified and ultimately adopted in practice. It does not ask or answer any penetrating questions. Such as:

*  What if agency “equity” in older records, requiring review by those agencies, simply lapsed at some point in time, eliminating the need for such review?

*  What if certain defunct intelligence compartments could be altogether excused from multi-agency referral and review?

*  What if a fixed fraction of agency information security expenditures were routinely and predictably allocated to performing declassification?

*  What if new metrics could be devised to measure the success of declassification programs based on requester demand and disclosure impact, not just on number of pages processed?

*  Fundamentally, what if intelligence community tolerance for risk were recalibrated to facilitate more expeditious declassification of both current and historically valuable records?

Interestingly, the report notes that agencies favor numerous revisions to President Obama’s executive order 13526 on classification policy, so that “updating the E.O. will be a major undertaking.”

But those revisions mainly seem geared toward relaxing existing declassification requirements, not strengthening them. So, for example, IC officials believe they could place increased emphasis on declassifying historical records of broad public interest if they could be assured that other records of lesser interest would not be automatically declassified as they become 25 years old, as the Obama order nominally directs.

Revisiting Intelligence History

Earlier this month the Director of National Intelligence asked intelligence community historians to recommend topics in the history of intelligence which, if declassified and disclosed, “would help the public better understand the work of the IC and contribute to a public dialogue surrounding significant historical events.”

DNI James R. Clapper directed that historical topics shall be provided to the DNI for proposed declassification review “on a semi-annual basis.” IC historians are to “collaborate with other public historians or private subject-matter experts to solicit input for such topics,” he wrote in a December 9 memorandum.

In itself, this DNI directive is not a very significant step. It does not make any specific commitments, it is not enforceable, and it does not allocate any new resources. Above all, it does not set forth new criteria for declassification of historical materials. This is a serious omission, since records which qualify for declassification under existing criteria are supposed to be declassified anyway, without the need for a new procedure.

Nevertheless, the latest memorandum adds at least a dash of momentum to a series of steps that have been taken by DNI Clapper to advance intelligence-related transparency, and that cumulatively may help to keep it alive as a topic of policy deliberation. Those other steps include the creation of IC on the Record (where the new memorandum first appeared), the issuance of IC “Transparency Principles,” the creation of an IC Transparency Council, and especially the DNI’s active embrace of the Fundamental Classification Guidance Review process, which should pay dividends in the months and years to come. Meanwhile, “over-classification” has recently been flagged by the President’s Intelligence Advisory Board as an issue requiring the attention of the next Administration.

*

These days, intelligence history is not just for historians. One historical topic that is timely and that might be fitting for comprehensive treatment by declassifiers concerns the role of intelligence agencies in tampering with foreign elections.

“The United States cannot in good faith decry what has been done to its decent citizens until it is ready to face what it did so often to the equally decent citizens of other nations,” wrote Ariel Dorfman, referring to the CIA intervention in Chile’s elections in the 1970s (“Now, America, You Know How Chileans Felt,” New York Times, December 16).

“The C.I.A. got its start trying to influence the outcome of Italy’s elections in 1948, as the author Tim Weiner documented in his book ‘Legacy of Ashes,’ in an effort to keep Communists from taking power,” wrote David Sanger, also in the Times. The US went on to interfere in elections in Iran, Guatemala, and Japan, he noted.

In Indonesia, the CIA reportedly made a pornographic film in 1957 featuring an actor disguised as the disfavored leader Sukarno that was intended to embarrass him, according to the 1976 book Portrait of a Cold Warrior by former CIA officer Joseph Burkholder Smith.

*

The current classification system “is broken,” wrote Sen. Dianne Feinstein in the Washington Post. It is too complicated, too expensive, and rewards overclassification.

“We… must do what we can to change incentives to further encourage government personnel to classify at the lowest appropriate levels and for the shortest durations,” she wrote. See “How to rethink what’s ‘top secret’ for the Internet age,” December 16.

While official attention to classification policy is most welcome, the fact that a senior legislator like Sen. Feinstein would resort to writing an op-ed on the subject might be understood as a tacit signal that a legislative solution is currently out of reach.

But that is not necessarily true. I suggested some (comparatively) easy incremental steps that Congress could take to begin to combat overclassification in a statement presented at a hearing of the House Oversight and Governmental Reform Committee on December 7.

Overclassification, Declassification At Issue

The enduring problem of overclassification and the challenge of effective declassification are the subject of two public events this week.

The House Committee on Government Oversight and Reform, chaired by Rep. Jason Chaffetz (R-UT), will hold a hearing on Wednesday, December 7 on “examining the costs of overclassification on transparency and security.” The witnesses include former Information Security Oversight Director Bill Leonard, National Security Archive director Tom Blanton, Scott Amey of the Project on Government Oversight, and myself.

The Public Interest Declassification Board, chaired by Prof. Trevor Morrison, will hold a meeting on Thursday, December 8 to discuss potential changes that could be adopted in a future executive order on classification. More information, including advance copies of several presentations to be made at the meeting, can be found here.

CIA Will Place Its CREST Database Online

The Central Intelligence Agency said this week that it will post its database of declassified CIA documents online, making them broadly accessible to all interested users.

The database, known as CREST (for CIA Records Search Tool), contains more than 11 million pages of historical Agency records that have already been declassified and approved for public release.

Currently, however, CREST can only be accessed through computer terminals at the National Archives in College Park, MD. This geographic restriction on availability has been a source of frustration and bafflement to researchers ever since the digital collection was established in 2000. (See CIA’s CREST Leaves Cavity in Public Domain, Secrecy News, April 6, 2009; Inside the CIA’s (Sort of) Secret Document Stash, Mother Jones, April 3, 2009).

But that is finally going to change.

The entire contents of the CREST system will be transferred to the CIA website, said CIA spokesperson Ryan Trapani on Tuesday.

“When loaded on the website they will be full-text searchable and have the same features currently available on the CREST system at NARA,” he said.

CIA was not able to provide a date for completion of the transfer, but “we are moving out on the plan to make the transition,” Mr. Trapani said.

In the meantime, “The CREST database housed at NARA will remain up and running at least until the website is fully functioning,” he said.

Nuclear Weapons Secrecy Policy Relaxed, a Bit

The fact that a now-retired nuclear weapon was once located at a now-closed location in the United States shall no longer be considered classified information, the Department of Defense announced last week.

This may seem so trivial and insignificant as to be hardly worth deciding or announcing, but it could have positive practical consequences for current and future declassification efforts.

“The repeated discoveries of this kind of [information] in numerous records [have] impeded the prompt declassification of many documents,” the National Declassification Center said last week, praising the move.

So with the categorical declassification of such information, the declassification of some historical records should now be facilitated and accelerated.

“Secrecy itself is more dangerous than the possession of atomic weapons,” said Edward Teller in a 1989 presentation at Lawrence Livermore National Laboratory. The Department of Energy posted a transcript of his remarks last week.

Number of New Secrets in 2015 Near Historic Low

The production of new national security secrets dropped precipitously in the last five years and remained at historically low levels last year, according to a new annual report released today by the Information Security Oversight Office.

There were 53,425 new secrets (“original classification decisions”) created by executive branch agencies in FY 2015. Though this represents a 14% increase from the all-time low achieved in FY 2014, it is still the second lowest number of original classification actions ever reported. Ten years earlier (2005), by contrast, there were more than 258,000 new secrets.

The new data appear to confirm that the national security classification system is undergoing a slow-motion process of transformation, involving continuing incremental reductions in classification activity and gradually increased disclosure.

Thus, the number of officials who are authorized to generate new national security secrets (“original classification authorities”) dropped to an all-time reported low of 2,199, the new ISOO report said.

Meanwhile, “derivative classification activity,” or the incorporation of existing secrets into new forms or products, dropped by 32%.

The number of pages declassified increased by 30% over the year before.

Of particular interest, the number of internal ”classification challenges” — in which government employees who are authorized holders of classified information themselves challenged the classification status or level of the information — reached an all-time high of 952 formal challenges in FY 2015. Of those, 411 (or 43%) were granted in whole or in part, ISOO reported. This internal challenge procedure has the potential to create an entire new dynamic of self-correction within the classification system.

See 2015 Report to the President, Information Security Oversight Office, transmitted by ISOO Acting Director William A. Cira, July 15, 2016.

Not all is well, however.

The cost of the national security secrecy system reached an all-time high of $17.44 billion in FY 2015, up 8% from the year before — a rate of growth that seems hard to sustain.

The average number of days to respond to a mandatory declassification request increased to 270 days, and the number of MDR requests that have gone unresolved for more than a year increased significantly to more than 14,000.

The use of the “declassify in ten years or less” instruction on newly classified documents dropped sharply down to 15%, making it harder to implement automatic declassification procedures in the future.

Overall, however, the good news — a reduced scope for secrecy and increased disclosure activity — seems to dominate. The sustained reductions in new classification activity are likely to be extended further with the implementation of the second Fundamental Classification Guidance Review that is now underway.

Interestingly, the impressive changes in national security classification policy over the past several years have occurred primarily at the agency level. The White House seems barely cognizant of those changes, and did not mention them at all in a recent description of the Obama Administration’s efforts “to drive openness and transparency in government.”

Intelligence Reform in the Jimmy Carter Era

“Public trust and confidence in the Intelligence Community have been seriously undermined by disclosures of activities in the past that were illegal, injudicious or otherwise improper by today’s standards,” according to a 1977 interagency memorandum circulated by National Security Advisor Zbigniew Brzezinski.

“Moreover, many disillusioned persons who have come to believe the worst of their government tend to accept at face value exaggerated imputations of impropriety to legitimate foreign intelligence activities. In some quarters there is a persistent belief that U.S. foreign intelligence activities have still not been brought under adequate control. Clearly the Intelligence Community must earn wider acceptance of its legitimacy and role within our democratic form of government if a viable U.S. foreign intelligence effort is to be sustained over the longer term.”

These observations were included in an impressive collection of declassified documents on intelligence reform in the Jimmy Carter administration that was published by the State Department yesterday as part of a new volume of the Foreign Relations of the United States series (Organization and Management of Foreign Policy: 1977-80, volume 28).

The 365-page section on Intelligence Policy and Reform presents often-candid discussion of topics such as: the role and authority of the Director of Central Intelligence, the perennial problem of leaks of classified information, the vexed relations between ambassadors and CIA chiefs of station abroad, covert action, the role of PFIAB and the Intelligence Oversight Board, and more. While some of the documents have appeared previously, many of them were declassified for this volume in 2012-2014.

A few samples:

A 1977 memorandum from CIA General Counsel Anthony Lapham stated that when it comes to prosecuting leaks of classified information to the press, “It is extremely doubtful that the provisions [of the Espionage Act] were intended to have application in such situations, and as a matter of historical fact, leaving aside the unsuccessful Ellsberg prosecution and possibly one or two other cases, they never have been so applied.”

Moreover, added Lapham, “Under current Justice Department procedures, unauthorized disclosures of national security information, in other than espionage situations, are almost never even investigated, let alone prosecuted.”

“It seems to us that the universe of classified information is quite simply too large, and encompasses such a great variety of material of so many different degrees of importance to the national security, as to make impractical the idea of extending criminal sanctions to the unauthorized disclosure of all such information,” he wrote (document 34, pp. 156, 159).

*

In one particularly thoughtful and reflective document in the new collection, NSC staffer Paul Henze observed: “While we now enjoy nearly real-time photography from satellites [less than 1 line not declassified] we are not much closer than we were thirty years ago to knowing what goes on in the minds of the top men in Moscow or Madrid, Peking, Algeria or Brasilia, what Arab leaders say to each other when they get together or how French elections are going to come out.”

“CIA greeted the Carter Administration with a keen expectation that with new leadership it would leave behind a period of strain and controversy and be able to rebuild its own capabilities and redirect its energies to real USG priorities. . . . Eight months later all this sense of excitement and optimism has dissipated. The prevailing mood of CIA, both on the operational and analytical sides of the agency is apprehension, depression, frustration,” Henze wrote (document 63 at p. 321).

*

In a remarkable 1978 memorandum “On the Psychology of President Power,” National Security Advisor Brzezinski advised President Carter that he should demonstrate a capacity for irrational and impulsive behavior (document 13, page 45).

“I suspect that an impression has developed that the Administration (and you personally) operates very cerebrally, quite unemotionally. In most instances this is an advantage; however, occasionally emotion and even a touch of irrationality can be an asset. Those who wish to take advantage of us ought to fear that, at some point, we might act unpredictably, in anger, and decisively. If they do not feel this way, they will calculate that simply pressing, probing, or delaying will serve their ends. I see this quite clearly in [Israeli prime minister Menachem] Begin’s behavior, and I suspect that Brezhnev is beginning to act similarly.”

“This is why I think the time may be right for you to pick some controversial subject on which you will deliberately choose to act with a degree of anger and even roughness, designed to have a shock effect,” Brzezinski suggested.

According to the new book “Jimmy Carter in Africa: Race and the Cold War” by Nancy Mitchell of North Carolina State University, this advice was prompted by Brzezinski’s alarm at the scale of Soviet and Cuban intervention in Ethiopia.

Updated Nuclear Stockpile Figures Declassified

The size of the U.S. nuclear stockpile as of September 30, 2015 — 4,571 weapons — and the number of U.S. nuclear weapons that were dismantled in FY 2015 — 109 of them — were declassified and disclosed last week.

The latest figures came as a disappointment to arms control and disarmament advocates who favor sharp reductions in global nuclear inventories.

The new numbers “show that the Obama administration has reduced the U.S. stockpile less than any other post-Cold War administration, and that the number of warheads dismantled in 2015 was lowest since President Obama took office,” wrote Hans M. Kristensen in the FAS Strategic Security blog.

But precisely because the new disclosure casts an unflattering light on the Obama Administration, it also represents a triumph of transparency. Since it is at odds with the Administration’s own declared agenda, the release enables the press and the public to exact a measure of accountability.

“The new figures […] underscored the striking gap between Mr. Obama’s soaring vision of a world without nuclear arms, which he laid out during the first months of his presidency, and the tough geopolitical and bureaucratic realities of actually getting rid of those weapons,” wrote William J. Broad in the New York Times on May 26.

“Obama calls for end to nuclear weapons, but U.S. disarmament is slowest since 1980,” as a Washington Post headline put it on May 27.

News stories credited the Department of Defense for the “annual public release” of the stockpile information. But it is a bit more complicated than that.

The nuclear stockpile size was classified as “Formerly Restricted Data” (FRD) under the Atomic Energy Act. As such, it had to be cooperatively declassified by both the Department of Defense and the Department of Energy. And the declassification of FRD does not occur regularly or spontaneously.

“It is not the policy of the DoD/DOE to release such numbers automatically,” said Andrew Weston-Dawkes, the director of the DOE Office of Classification. Instead, consideration is given to declassification of specific information as it is requested. In this case, release of the 2015 stockpile figures was requested by the Federation of American Scientists in an October 2015 petition.

“The declassification of stockpile numbers was a direct result of your request for the information,” Dr. Weston-Dawkes wrote in an email. “Your request was reviewed by the DoD-FRD working group and in turn approved by the DoD and the DOE.”

Until the Obama Administration declassified it for the first time in 2010, the current size of the U.S. nuclear arsenal had never been officially made public. (Historical stockpile numbers up to 1961 were released in the 1990s.)

Columnists and commentators are in the habit of mocking President Obama’s promise that his would be the most transparent Administration in history. But when it comes to nuclear stockpile information, that promise has been fulfilled.

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.”

DoD Directs “Equal Attention” to Secrecy, Declassification

Declassification of national security information should be pursued on a par with classification, according to a Department of Defense directive that was reissued yesterday.

“Declassification of information will receive equal attention as the classification of information so that information remains classified only as long as required by national security considerations,” said DoD Instruction 5200.01, dated April 21 and signed by Marcel Lettre, the Under Secretary of Defense for Intelligence.

This seems commendable as an aspirational goal, but it is hard to consider it an accurate description of existing DoD policy. (The “equal attention” language has been in force since 2008, when it appeared in a prior iteration of the Instruction.)

Nor is it clear what DoD means by “equal attention” in this context. Equal resources devoted to classification- and declassification-related activities? Surely not. Equal numbers of personnel engaged in classification and declassification? No. Equivalent quantities of records being classified and declassified? Also no.

Still, in a rules-based bureaucracy like the Pentagon, a directive from the Under Secretary of Defense has some intrinsic weight and cannot be entirely dismissed.

It is also noteworthy that the Instruction goes beyond requiring some sort of equilibrium between classification and declassification and calls for an actual reduction in the amount of classified material: “The volume of classified national security information and CUI [controlled unclassified information], in whatever format or media, will be reduced to the minimum necessary to meet operational requirements.”

In a new provision, the Instruction emphasizes the need to address unauthorized disclosures of classified information:

“Commanders and supervisors at all levels must consider and, at their discretion, take appropriate administrative, judicial, contractual, or other corrective/disciplinary action to address negligent discharges of classified information commensurate with the seriousness of the security violation.”

A “negligent discharge” sounds like something that is frowned upon in the Book of Leviticus. But it is actually an officially-sanctioned DoD term for certain types of unauthorized disclosures. An August 14, 2014 memorandum from the Deputy Secretary of Defense explains its origin:

“A negligent spillage or unauthorized disclosure of classified information is categorized as a Negligent Discharge of Classified Information (NDCI), which is based on the familiar firearms term ‘Negligent Discharge,’ to connote its seriousness.”