ODNI Erects Cost Barrier to Mandatory Declassification

Updated below, twice

Anyone who submits a mandatory declassification review request to the Office of the Director of National Intelligence seeking release of classified records “shall be responsible for paying all fees” resulting from the request, according to a new ODNI regulation.

And those fees are considerable.

A search for a requested document costs from $20-$72 per hour. Document review runs $40-$72 per hour. And photocopying costs fifty cents per page, the new ODNI regulation said. It was published in the Federal Register on Friday, with a request for public comments.

The mandatory declassification review (MDR) process was established by executive order 13526 to permit requests for declassification of information that no longer meets the standards for national security classification. The executive order’s implementing directive states that fees may be charged for responding to MDR requests for classified records.

But the proposed ODNI fees seem extravagant on their face. No commercial enterprise charges anything close to fifty cents to photocopy a single page. Neither do most of ODNI’s peer agencies.

The Department of Defense permits (though it does not require) DoD agencies to charge fees for search, review and reproduction (pursuant to DoD Manual 5230.30-M). But the DoD schedule of fees is well below the proposed ODNI rate.

Instead of fifty cents per page, DoD charges thirteen cents. Instead of up to $72 per hour for search and review, DoD charges no more than $52.60 per hour. ODNI wants $10 for a CD, but DoD asks only $1.25. (See DoD 7000.14-R, Volume 11A, Chapter 4, Appendix 2, Schedule of Fees and Rates, at page 4-13).

And while ODNI would make requesters liable for “all fees,” DoD says that “Fees will not be charged if the total amount to process your request is $30.00 or less.”

Similarly, at the Department of State, “Records shall be duplicated at a rate of $.15 per page.”

In a 2011 rule, the Central Intelligence Agency did mandate a fifty cent per page photocopy fee for MDR requests, as well as a $15 minimum charge. But the CIA policy was suspended in response to public criticism and a legal challenge from the non-profit National Security Counselors. That challenge is still pending.

“There is nothing unusual about these [search and review] fees,” CIA told a court in 2014 in response to the legal challenge. “And the reproduction costs are similar to those employed by other agencies.” CIA noted that a National Archives regulation sets reproduction costs as high as 75 cents per page. (Last year it reached 80 cents, although a self-service copier is sometimes available for 25 cents per page.)

Furthermore, CIA said in 2014, “neither set of costs reimburses the CIA for the full cost of providing the declassification review service to the requester.”

Public comments on the new ODNI rule are due by March 28.

Update, 3/3/16: FAS comments on the ODNI rule are available here.

Update, 3/4/16: ODNI agreed to amend its MDR fee structure and to replace it with the same fee policy used in its Freedom of Information Act program.

“Fact of” Nuclear Weapons on Okinawa Declassified

Updated below

The Department of Defense revealed this week that “The fact that U.S. nuclear weapons were deployed on Okinawa prior to Okinawa’s reversion to Japan on May 15, 1972” has been declassified.

While this is indeed news concerning classification policy, it does not represent new information about Okinawa.

According to an existing Wikipedia entry, “Between 1954 and 1972, 19 different types of nuclear weapons were deployed in Okinawa, but with fewer than around 1,000 warheads at any one time” (citing research by Robert S. Norris, William M. Arkin and William Burr that was published in 1999 in the Bulletin of the Atomic Scientists). As often seems to be the case, declassification here followed disclosure, not the other way around.

If there is any revelation in the new DoD announcement, it is that this half-century-old historical information was still considered classified until now. As such, it has been an ongoing obstacle to the public release of records concerning the history of Okinawa and US-Japan relations.

Because this information had been classified as “Formerly Restricted Data” under the Atomic Energy Act rather than by executive order, its declassification required the concurrence of the Department of Defense, the Department of Energy, and (in this case) the Department of State. Any one of those agencies had the power to veto the decision to declassify, or to stymie it by simply refusing to participate.

Instead, the information was declassified as a result of a new procedure adopted by the Obama Administration to coordinate the review of nuclear weapons-related historical material that is no longer sensitive but that has remained classified under the Atomic Energy Act by default. The new procedure had been recommended by a 2012 report from the Public Interest Declassification Board, and was adopted by the White House-led Classification Reform Committee.

Also newly declassified and affirmed this week was “The fact that prior to the reversion of Okinawa to Japan that the U.S. Government conducted internal discussion, and discussions with Japanese government officials regarding the possible re-introduction of nuclear weapons onto Okinawa in the event of an emergency or crisis situation.”

Such individual declassification actions could go on indefinitely, since there are innumerable other “facts” whose continued classification cannot reasonably be justified by current circumstances. A more systemic effort to recalibrate national security classification policy government-wide is to be performed over the coming year.

Update: The National Security Archive posted the first officially declassified document on nuclear weapons in Okinawa, which was released in response to its request. See Nuclear Weapons on Okinawa Declassified, February 19, 2016.

Streamlining Declassification: Imagery and Image Products

A 2014 memorandum from Director of National Intelligence James R. Clapper, released this week under the Freedom of Information Act, drew a new distinction between intelligence satellite images and the intelligence products that are derived from those images.

The subtle new distinction affects the classification and declassification of the two categories of information, and may help to facilitate the release of a growing volume of imagery-related material by US intelligence agencies.

The new policy affirms that original satellite images retain their privileged status as a subset of protected intelligence sources and methods that can only be declassified by the Director of National Intelligence (pursuant to executive order 12951). However, the declassification of intelligence products based on those images is now delegated to the Director of the National Geospatial-Intelligence Agency.

Adopting this distinction will mean “streamlining our procedures,” the DNI memo said, and “enabling the overall process to be more responsive to future Freedom of Information Act requests.”

See “Classification and Marking of Imagery Derived from Space-based National Intelligence Reconnaissance Systems,” memorandum from DNI James R. Clapper to NGA Director Robert Cardillo, November 12, 2014.

Whether the policy shift has already enabled more disclosure of intelligence imagery through the Freedom of Information Act is doubtful. We haven’t seen evidence of it.

But what is true is that the National Geospatial-Intelligence Agency has undertaken to provide an increasing amount of unclassified imagery and mapping products to the public, including online resources concerning the Arctic, the Nepal earthquake, and the Ebola outbreak, as well as various disaster relief packages. Though it is easy to take the availability of this material for granted, it shouldn’t be; an affirmative decision and something of a cultural shift by the intelligence community (or at least by NGA) was required in order to accomplish it.

The indiscriminate use of the term “intelligence sources and methods” to justify withholding of intelligence-related information from the public has long been a source of frustration and a cause for criticism.

The 1997 Moynihan Commission on secrecy said that “this very general language has come to serve as a broad rationale for declining to declassify a vast range of information about the activities of intelligence agencies” and that it “appears at times to have been applied not in a thoughtful way but almost by rote.”

The Commission recommended that the scope of the term be clarified so as to limit its application.

DNI Clapper’s 2014 memorandum on intelligence image products may be understood as a step in that direction.

In 1963, CIA Said It Had Copies of Soviet Spysat Images

In a newly disclosed memorandum from 1963, the Director of Central Intelligence advised the Secretary of State that the CIA had “good reproductions” of Soviet satellite imagery.

This puzzling remark appears to suggest a previously unrecognized capability of the CIA.

The declassified memo summarizes a July 3, 1963 telephone conversation between DCI John McCone and Secretary of State Dean Rusk. It was discovered by researchers David M. Barrett and Eric P. Swanson.

According to the memo, McCone said that the U.S. had “for some time tried to determine whether the Soviets were actually photographing and the extent they were from satellites.” The DCI said “it has been determined they have been and we have good reproductions of what they are getting.” The DCI was to brief the President on the subject the following week.

In an article discussing the memo in the journal Intelligence & National Security, Barrett and Swanson wrote that they found “no references in the intelligence literature to the United States having had the capability to see what the Soviet satellites were seeing, much less any treatment of how the CIA obtained the ‘good reproductions’.”

Assuming the McCone statement is accurate, it would seem to imply one of a few possibilities. It could mean that the US was somehow intercepting the Soviet images (which seems improbable), or that it was replicating the images through US overflights, or else that it was simply modeling the images based on the presumed capabilities of the Soviet satellites and their orbital parameters.

Prof. Barrett added that the fact that the matter was to be briefed to the President indicated that it was of more than ordinary significance. He also noted that the 1963 memo was located in State Department records at the National Archives, and was not released by CIA.

The import of the memo remains uncertain.

Reproductions of Soviet satellite imagery were “not anything I ever came across some ten years later,” said former CIA analyst Allen Thomson, “and I was in a decent position to see such (Office of Weapons Intelligence).”

“At a guess, perhaps the ‘reproductions’ were simulations based on the technical state of the art at the time (film) and estimates of the camera aperture. That would have been easy enough to do and useful as an aid to orient consumers to what might be in the imagery. Or it could just have meant looking at the ground tracks to see what the satellites overflew,” Mr. Thomson said.

Dino Brugioni, who was a pioneering figure in U.S. imagery intelligence and a CIA official at the time of the McCone memo, passed away in September with little public notice.

Intelligence Lessons from the 2009 Fort Hood Shooting

In 2010, then-Director of National Intelligence Dennis C. Blair convened a panel to review the November 2009 Fort Hood shooting committed by Army Maj. Nidal Hasan and the Christmas Day bombing attempt by Umar Farouk Abdulmutallab aboard Northwest Flight 253.

A redacted version of the resulting panel report was finally declassified and released this week. See Report to the Director of National Intelligence on the Fort Hood and Northwest Flight 253 Incidents, Intelligence Community Review Panel, 15 April 2010.  The panel was led by former Acting DCI John E. McLaughlin.

In a nutshell, the report found, “There were several missed opportunities that could have increased the odds of detecting Abdulmutallab or Hasan. The causes of the missteps ranged from human error to inadequate information technology, inefficient processes, unclear roles and responsibilities, and an occasional lack of individual inquisitiveness.”

Beyond a detailed recounting of what was known by U.S. intelligence about the perpetrators, much of which has been withheld, the report fills a gap in the literature of intelligence reform with a look at systemic issues such as the state of information technology in the intelligence community (as of 2011), the process of watch-listing, and disagreements over the handling of U.S. person information.

“Inadequate information technology runs through both the Fort Hood and the NW Flight 253 narratives, particularly the inability of IT systems to help analysts locate relevant reporting in a sea of fragmentary data or to correct for seemingly minor human errors.”

“NCTC [National Counterterrorism Center] analysts, for example, have access to more than 28 separate databases and systems, each of which, for the most part, has a separate log-on. This means analysts have to search each database separately before trying to identify connections among their results.”

The existing search capacity “is intolerant of even simple mistakes in the queries and does not enable questions like: list everyone that is potentially affiliated with AQAP and has a passport or visa that would permit entry to the United States or UK.”

But the problem is not purely one of technology, the report said. “The Community cannot realize the potential of information technology to assist the counterterrorism mission without clarifying… procedures for sharing information on US persons.”

The report reflects a view that restrictions on collecting and disseminating US person information had become onerous and counterproductive.

“Many of the people we interviewed assessed that policy on handling US Persons data… was limiting the Intelligence Community’s ability to aggregate and exploit available data, especially information pertaining to critical domestic-foreign nexus issues.”

“We noticed a strong belief among collectors and analysts that restrictions on collecting, disseminating, accessing, and analyzing data on US Persons impede mission performance…. We also saw a surprising level of disagreement — even among experienced practitioners — on whether current US Person authorities allow intelligence officers to accomplish their missions, or whether new legal authorities are needed.”

(“Sharing US Person information with foreign partners, and tasking them to collect on US Persons appeared at various points,” the report says at the start of an otherwise redacted paragraph.)

“We see a need to simplify, harmonize, update, and modify the Community’s procedures relating to US persons,” the McLaughlin panel wrote.

What exactly this might mean in practice was not spelled out, but it didn’t seem to entail tightening, narrowing or curtailing the use of US person information, or increasing oversight of it.

“The report’s finding on the Intelligence Community’s ‘caution’ and ‘risk aversion’ in the collection of US persons information is particularly notable,” said Christian Beckner, Deputy Director, GW Center for Cyber & Homeland Security, “leading the review group to worry that ‘the next terrorist surprise could be the result of confusion or excessive caution about how to manage this issue.’  This finding is in striking contrast to much of the public dialogue following the Snowden leaks about intelligence activities related to US persons.”

The panel report also includes various incidental observations of interest.

“The panel is concerned that the overlap between CTC [the CIA Counterterrorism Center} and NCTC [the National Counterterrorism Center] extends beyond healthy competition and that the turf battles, duplications, and clashes are a drain on the resources and creative energy of both organizations.”

Furthermore, “It appears that much of the tension between the two organizations centers on issues related to the President’s Daily Brief (PDB) — everything from who takes the lead to what is said in the articles.”

The report cites inaccuracies in news media coverage of the Fort Hood shootings and Christmas Day bombing “that have skewed the discussions.” For example, contrary to some accounts, “There is no evidence indicating that [Anwar al] Aulaqi directed Hasan.”

The report also presents a previously unreleased 2010 DNI directive on “lanes in the road” (included as Appendix D to the report) that “establishes the responsibilities and accountability of leaders of major organizations with counterterrorism analytic missions.” In other words, it assigned specific counterterrorism roles to each of the relevant intelligence agencies.

“Each organization within the IC with a significant counterterrorism analytic effort is expected to work seamlessly with its counterparts, drawing on the specific strengths and advantages of partners, but is also expected to place particular emphasis on those missions they are uniquely positioned to conduct,” wrote DNI Dennis C. Blair in the April 7, 2010 memorandum.

Tolman Reports on Declassification Now Online

This week the Department of Energy posted the first declassification guidance for nuclear weapons-related information, known as the Tolman Committee reports, prepared in 1945-46. The Tolman reports were an early and influential effort to conceptualize the role of declassification of atomic energy information and the procedures for implementing it. Though the reports themselves were declassified in the 1970s, they have not been readily available online until now.

Nuclear Weapon Declassification Decisions, 2011-2015

The Department of Energy issued twenty “declassification determinations” between April 2011 and March 2015 to remove certain specified categories of nuclear weapons-related information from classification controls.

“The fact that a mass of 52.5 kg of U-235 is sufficient for a gun-assembled weapon” was formally declassified in a written decision dated August 19, 2014.

The “total inventory of thorium at DOE sites for any given time period” was removed from the Restricted Data category on March 20, 2013.

The “existence of unlimited life neutron generators” was declassified on October 24, 2013.

As a result of such determinations, the specified information need no longer be redacted from documents undergoing declassification review, and it can also be incorporated freely in new unclassified documents.

So, for example, the fact that “The total United States Government inventory of plutonium on September 30, 2009 was 95.4 metric tons” was declassified on December 20, 2011.

This decision enabled the release of The United States Plutonium Balance, 1944-2009, a report published in June 2012. (“The aim of this publication is to provide, in a transparent manner, comprehensive and up-to-date data to regulators, public interest organizations, and the general public. Knowledge of the current U.S. plutonium balance and the locations of these materials is needed to understand the Department’s plutonium storage, safety, and security strategies.”)

The Department of Energy’s declassification determinations from 2011-2015 were released by DOE this week under the Freedom of Information Act. They are posted here in reverse chronological order, along with previous DOE declassification decisions.

The DOE declassification actions were performed in compliance with the Atomic Energy Act of 1954, in which Congress mandated a “continuous review of Restricted Data… in order to determine which information may be declassified and removed from the category of Restricted Data without undue risk to the common defense and security.”

House Defense Bill Seeks Expedited Declassification of POW Records

The House Armed Services Committee is asking the Secretary of Defense to identify “specific inefficiencies with regard to the process for the declassification of documents” pertaining to prisoners of war and missing in action personnel, and ways to expedite the release of such documents. The directive was included in the new Committee report on the FY 2016 defense authorization act.

Declassification of POW/MIA records is a niche issue of intense personal interest to some, and of no particular interest to others. But because such niche issues embody systemic problems, they have the potential to drive changes in policy that can have ripple effects throughout the national security classification process, as disputes over release of JFK assassination records have done in the past.

Thus, the Committee asked the Secretary to report on “challenges in current declassification procedures; recommendations to expedite procedures for interagency declassification; recommendations for procedures to declassify redacted portions of previously released documents;…” and so forth.

In a separate provision, the House Committee responded to a Department of Energy Inspector General finding this year that information had sometimes been misclassified and/or improperly disclosed at Los Alamos National Laboratory. The Committee instructed the National Nuclear Security Administration to report on “the measures taken to improve the effectiveness of the classification process and related oversight.”

Declassification of Nuclear Warhead Build Rate Sought

The Federation of American Scientists this week petitioned the Department of Energy to declassify the annual rate at which the United States built new nuclear weapons throughout the cold war.

“The proposed declassification would enrich public understanding of the historical development of the U.S. stockpile. Disclosure of the actual build rate per year would add a dimension to the cold war historical narrative and bolster transparency in nuclear policy,” the FAS request said.

Total annual build rates have previously been declassified for the years 1945 through 1961.

The last completely new nuclear weapon in the U.S. arsenal was assembled on July 31, 1990, according to Stephen I. Schwartz of the Middlebury Institute of International Studies at Monterey.

Dept of State Delays Release of Iran History

The U.S. Department of State has blocked the publication of a long-awaited documentary history of U.S. covert action in Iran in the 1950s out of concern that its release could adversely affect ongoing negotiations over Iran’s nuclear program.

The controversial Iran history volume, part of the official Foreign Relations of the United States (FRUS) series, had been slated for release last summer. (“History of 1953 CIA Covert Action in Iran to be Published,” Secrecy News, April 16, 2014).

But senior State Department officials “decided to delay publication because of ongoing negotiations with Iran,” according to the minutes of a September 8, 2014 meeting of the Advisory Committee on Historical Diplomatic Documentation that were posted on the Department of State website this week.

Dr. Stephen P. Randolph, the Historian of the State Department, confirmed yesterday that the status of the Iran volume “remains as it was in September” and that no new publication date has been set. The subject was also discussed at an Advisory Committee meeting this week.

The suppression of this history has been a source of frustration for decades, at least since the Department published a notorious 1989 volume on U.S. policy towards Iran that made no mention of CIA covert action.

But the latest move is also an indirect affirmation of the enduring significance of the withheld records, which date back even further than the U.S. rupture with Cuba that is now on the mend.

It seems that the remaining U.S. records of the 1953 coup in Iran are not only of historical interest but they evidently hold the power to move whole countries and to alter the course of events today. Or so the State Department believes.

“The logic, as I understand it, is that the release of the volume could aggravate anti-U.S. sentiment in Iran and thereby diminish the prospects of the nuclear negotiations reaching a settlement,” said Prof. Richard H. Immerman, a historian at Temple University and the chair of the State Department Historical Advisory Committee.

“I understand the State Department’s caution, but I don’t agree with the position,” he said. “Not only is the 1953 covert action in Iran an open secret, but it was also a motive for taking hostages in 1979. The longer the U.S. withholds the volume, the longer the issue will fester.”

Besides, if the documents do have an occult power to shape events, maybe that power could be harnessed to constructive ends.

“I would argue that our government’s commitment to transparency as signaled by the release of this volume could have a transformative effect on the negotiations, and that effect would increase the likelihood of a settlement,” Prof. Immerman suggested.

“At least some in the Iranian government would applaud this openness and seek to reciprocate. Further, the State Department of 2014 would distinguish this administration from the ‘Great Satan’ image of 1953 and after,” he said.

Continued secrecy has become an unnecessary obstacle to the development of US-Iran relations, argued historian Roham Alvandi in a similar vein in a New York Times op-ed (“Open the Files on the Iran Coup,” July 9, 2014).

“Moving forward with a new chapter in American-Iranian relations is difficult so long as the files on 1953 remain secret,” he wrote. “A stubborn refusal to release them keeps the trauma of 1953 alive in the Iranian public consciousness.”

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The State Department published a new Foreign Relations of the United States volume today on the Arab-Israeli Dispute, 1978-80. It is the ninth FRUS volume of the year, and it came out “a little ahead of schedule,” said Dr. Randolph, the Department Historian.