DOE Declassifies Declassification of Downblending Move

Last year, the Department of Energy decided to declassify the fact it intended to make 25 metric tons of Highly Enriched Uranium available from “the national security inventory” for downblending into Low Enriched Uranium for use in the production of tritium.

However, the decision to declassify that information was classified Secret.

This year, the Department of Energy decided to declassify the declassification decision, and it was disclosed last week under the Freedom of Information Act.

While the contortions in classification policy are hard to understand, the underlying move to downblend more HEU for tritium production probably makes sense. Among other things, it “delays the urgency — but doesn’t eliminate the eventual need — to build a new domestic enrichment capacity,” said Alan J. Kuperman of the University of Texas at Austin.

There were 160 MT of US HEU downblended by the end of FY 2018, according to the FY 2019 DOE budget request (volume 1, at page 474), and a total of 162 MT was anticipated by the end of FY 2019, as noted recently by the International Panel on Fissile Materials.

“The overall amount of HEU available for down-blending and the rate at which it will be down-blended is dependent upon decisions regarding the U.S. nuclear weapons stockpile, the pace of warhead dismantlement and receipt of HEU from research reactors, as well as other considerations, such as decisions on processing of additional HEU through H-Canyon, disposition paths for weapons containing HEU, etc,” according to the DOE budget request.

Aircraft Interdiction Nets Colombian Cocaine

With the support of U.S. intelligence, the Colombian Air Force last year engaged dozens of aircraft suspected of illicit drug trafficking, leading to the seizure of 4.4 metric tons of cocaine.

In 2017, “Colombia, with the assistance of the United States, responded to 80 unknown assumed suspect (UAS) air tracks throughout Colombia and the central/western Caribbean,” according to the latest annual report on the program. The report does not say how many of the aircraft were actually interdicted or fired upon. There were also 139 aircraft that were grounded by Colombian law enforcement agencies.

See Annual Report of Interdiction of Aircraft Engaged in Illicit Drug Trafficking (2017), State Department report to Congress, January 2018 (released under FOIA, October 2018).

The joint US-Colombia effort dates back at least to a 2003 Air Bridge Denial program involving detection, monitoring, interception, and interdiction of suspect aircraft.

The basic procedures for intercepting, warning, and attacking a suspect aircraft were more fully described in a 2010 version of the annual report. At that time, Brazil was also part of the Air Bridge Denial program.

US support for the Colombia aircraft interdiction program — which includes providing intelligence and radar information, as well as personnel training — was renewed by the President in a July 20, 2018 determination.

To Fix FOIA, “Best Practices” Will Not Be Enough

Many executive branch agencies have significant backlogs of Freedom of Information Act requests that could be reduced by adopting procedural improvements. And some agencies have made such improvements, a new report from the Government Accountability Office says. Yet substantial backlogs remain.

See Freedom of Information Act: Agencies Are Implementing Requirements but Additional Actions Are Needed, GAO-18-365, June 25.

All of the agencies reviewed had “implemented request tracking systems, and provided training to FOIA personnel.” Most of the agencies had also “provided online access to government information, such as frequently requested records…, designated chief FOIA officers, and… updated their FOIA regulations on time to inform the public of their operations.”

Nevertheless, FOIA is still not functioning well system-wide.

What the GAO report should have said but did not explicitly say is that even if all agencies adopted all of the recommended “best practices” for FOIA processing, they would still face substantial backlogs of unanswered requests.

The simple reason for that is that there is a mismatch between the growing demand from individual FOIA requesters — with 6 million requests filed in the past 9 years — and the resources that are available to satisfy them.

In order to bring the system into some rough alignment, it would be necessary either to increase the amount of agency funding appropriated and allocated for FOIA, or else to regulate the demand from requesters by imposing or increasing fees, limiting the number of requests from individual users, or some other restrictive measure.

None of these steps is appealing and none may be politically feasible. Other than a cursory reference to “available resources,” the GAO report does not address these core issues.

But in the absence of some such move to reconcile the “supply and demand” for FOIA, overall system performance is being degraded and seems unlikely to recover any time soon.

Meanwhile, government agencies have identified no fewer than 237 statutes that they say can be used to withhold information under the Freedom of Information Act, according to the GAO report, which tabulated the statutes. Since 2010, agencies have actually used 75 of those statutes. GAO did not venture an opinion as to whether the exemption statutes were properly and justifiably employed.

Another new report from Open the Government finds that “FOIA lawsuits grew steadily across the government by 57 percent overall for a ten year period, from 2006-15, and increased sharply by 26 percent in FY 2017.”

Court Rules in Favor of Selective Disclosure

The Central Intelligence Agency can selectively disclose classified information to reporters while withholding that very same information from a requester under the Freedom of Information Act, a federal court ruled last month.

The ruling came in a FOIA lawsuit brought by reporter Adam Johnson who sought a copy of emails sent to reporters Siobhan Gorman of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times that the CIA said were classified and exempt from disclosure.

“The Director of Central Intelligence is free to disclose classified information about CIA sources and methods selectively, if he concludes that it is necessary to do so in order to protect those intelligence sources and methods, and no court can second guess his decision,” wrote Chief Judge Colleen J. McMahon of the Southern District of New York in a decision in favor of the CIA that was released last week with minor redactions.

The Freedom of Information Act is a tool that can change as it is used, whether for the better or the worse, especially since FOIA case law rests on precedent. That means that a FOIA lawsuit that is ill-advised or poorly argued or that simply fails for any reason can alter the legal landscape to the disadvantage of future requesters. In particular, as anticipated a few months ago, “a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.” That is what has now happened.

The shift is starkly illustrated by comparing the statements of Judge McMahon early in the case, when she seemed to identify with the plaintiff’s perspective, and her own final ruling that coincided instead with the CIA’s position.

“There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including ‘trusted reporters,’ for any purpose, including the protection of CIA sources and methods that might otherwise be outed,” she had previously stated in a January 30 order.

“In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else,” which was exactly the plaintiff’s point.

“I suppose it is possible,” she added in a cautionary footnote, “that the Government does not consider members of the press to be part of ‘the public.’ I do.”

But this congenial (to the plaintiff) point of view would soon be abandoned by the court. By the end of the case, the mere act of disclosure to one or more members of the press would no longer be deemed equivalent to “public disclosure” for purposes of waiving an exemption from disclosure under FOIA.

Instead, Judge McMahon would come to accept, as the CIA argued in a February 14 brief, that “a limited disclosure of information to three journalists does not constitute a disclosure to the public. Where, as here, the record shows that the classified and statutorily protected information at issue has not entered the public domain, there is no waiver of FOIA’s exemptions.”

Plaintiff Johnson objected that “the Government cannot define ‘public’ to mean members of the public it is not disclosing information to.”

“The Government’s position that it may selectively disclose without waiver, if it has the best of intentions, knows no logical limits and would render the FOIA waiver doctrine a nullity,” he wrote. “The CIA’s motive in releasing the information is irrelevant under FOIA. Whether good reason, bad reason, or no reason at all, what matters is that an authorized disclosure took place. If the CIA does not wish to waive its secrecy prerogative, it cannot authorize a disclosure to a member of the public.”

In an amicus brief, several FOIA advocacy groups presented a subtle technical argument in support of the plaintiff. Under the circumstances, they concluded, the court had no choice but to order disclosure. “It does not matter… how much alleged damage the release of the information could cause.”

But these counterarguments proved unpersuasive to the court, and Judge McMahon ended up with a new conception of what constitutes the kind of prior “public disclosure” that would compel release of information under FOIA. Selective disclosure to individual reporters would not qualify.

“For something to be ‘public,’ it has to, in some sense, be accessible to members of the general public,” she now held in her final opinion.

“Selective disclosure of protectable information to an organ of the press… does not create a ‘truly public’ record of that information.” So CIA cannot be forced to disclose it to others. This was exactly the opposite of the view expressed by Judge McMahon earlier in the case.

The ruling was a defeat for the FOIA in the sense that it affirmed and strengthened a barrier to disclosure.

But it might also be considered a victory for the press, to the extent that it enables exchange of classified information with reporters off the record. Had the court compelled disclosure of the classified CIA emails to reporters Gorman, Ignatius and Shane, that would likely have reduced or eliminated the willingness of agencies to share classified information with reporters, as they occasionally do.

But the practice of selective disclosure has risks of its own, wrote plaintiff’s attorney Dan Novack last year. It “allow[s] the government to hypocritically release sensitive national security information when it suits its public relations interests without fear of being held to its own standard later.”

A Forum for Classified Research on Cybersecurity

By definition, scientists who perform classified research cannot take full advantage of the standard practice of peer review and publication to assure the quality of their work and to disseminate their findings. Instead, military and intelligence agencies tend to provide limited disclosure of classified research to a select, security-cleared audience.

In 2013, the US intelligence community created a new classified journal on cybersecurity called the Journal of Sensitive Cyber Research and Engineering (JSCoRE).

The National Security Agency has just released a redacted version of the tables of contents of the first three volumes of JSCoRE in response to a request under the Freedom of Information Act.

JSCoRE “provides a forum to balance exchange of scientific information while protecting sensitive information detail,” according to the ODNI budget justification book for FY2014 (at p. 233). “Until now, authors conducting non-public cybersecurity research had no widely-recognized high-quality secure venue in which to publish their results. JSCoRE is the first of its kind peer-reviewed journal advancing such engineering results and case studies.”

The titles listed in the newly disclosed JSCoRE tables of contents are not very informative — e.g. “Flexible Adaptive Policy Enforcement for Cross Domain Solutions” — and many of them have been redacted.

However, one title that NSA withheld from release under FOIA was publicly cited in a Government Accountability Office report last year:  “The Darkness of Things: Anticipating Obstacles to Intelligence Community Realization of the Internet of Things Opportunity,” JSCoRE, vol. 3, no. 1 (2015)(TS//SI//NF).

“JSCoRE may reside where few can lay eyes on it, but it has plenty of company,” wrote David Malakoff in Science Magazine in 2013. “Worldwide, intelligence services and military forces have long published secret journals” — such as DARPA’s old Journal of Defense Research — “that often touch on technical topics. The demand for restricted outlets is bound to grow as governments classify more information.”

US Gifts to Foreign Individuals Reported

The Obama Administration gave dozens of wrist watches to various foreign leaders in 2014.

A newly released State Department report to Congress lists all of the gifts presented by President Obama, Mrs. Obama, Vice President Biden, Mrs. Biden, and Secretary of State Kerry to foreign individuals.

The 32 page report reflects the fact that the presentation of gifts is a customary feature of personal encounters between US and foreign leaders, as is the recording and reporting of each gift.

Based on the descriptions in the report, most of the gifts seem generic and unimaginative, not reflecting any particularized esteem. The most common gift was a “custom men’s watch in a wooden presentation box with inscription plaque” with a reported value of $465.

One exception was a “custom seed chest… containing nine varieties of American seeds” (declared value $1964.87) that was presented to Pope Francis. Also noteworthy is a rare edition of a book about the 1893 World’s Congress of Religions that featured Swami Vivekananda and other luminaries (declared value $1375 — but now half that price on Amazon) that was given to Indian Prime Minister Narendra Modi.

The report on gifts from the United States to foreign individuals in FY2014 was released under the Freedom of Information Act following a three-year processing delay.

DOE Seeks to End MOX Plutonium Disposal Program

The Trump Administration requested $220 million next year “to continue the orderly and safe closure of the Mixed Oxide (MOX) Fuel Fabrication Facility.”

The MOX Fuel Fabrication Facility was intended to eliminate excess weapons-grade plutonium by blending it with uranium oxide to produce a “mixed oxide” that is not suitable for nuclear weapons. The Administration proposes instead to pursue a “dilute and dispose” approach.

Termination of the MOX Facility in South Carolina had previously been proposed — but not approved — in budget requests for the last two years, due to mounting costs.

“Construction remains significantly over budget and behind schedule,” the Department of Energy said in a November 2017 report to Congress. “The MOX production objective was not met in 2015 or 2016 and will not be met in 2017.”

“Due to the increasing costs of constructing and operating the MOX facility, both the Department’s analysis and independent analyses of U.S. plutonium disposition strategies have consistently and repeatedly concluded that the MOX fuel strategy is more costly and requires more annual funding than the dilute and dispose approach,” the DOE report said. The report was released by DOE under the Freedom of Information Act.

Though disfavored by the Administration, the MOX program has a champion in South Carolina Senator Lindsay Graham. “I will fight like crazy” to preserve it unless he is convinced that a superior alternative exists, he said at a February 8 hearing of the Senate Armed Services Committee.

Detailed background on the MOX program can be found in Mixed-Oxide Fuel Fabrication Plant and Plutonium Disposition: Management and Policy Issues, Congressional Research Service, December 14, 2017.

The latest proposal to terminate the MOX program was reported in “Aiken County legislators unsurprised by Trump’s anti-MOX budget” by Colin Demarest, Aiken Standard, February 19.

CIA Defends Selective Disclosure to Reporters

The Central Intelligence Agency said yesterday that it has the right to disclose classified information to selected journalists and then to withhold the same information from others under the Freedom of Information Act.

FOIA requester Adam Johnson had obtained CIA emails sent to various members of the press including some that were redacted as classified. How, he wondered, could the CIA give information to uncleared reporters — in this case Siobhan Gorman (then) of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times — and yet refuse to give it to him? In an effort to discover the secret messages, he filed a FOIA lawsuit.

His question is a good one, said Chief Judge Colleen McMahon of the Southern District of New York in a court order last month. “The issue is whether the CIA waived its right to rely on otherwise applicable exemptions to FOIA disclosure by admittedly disclosing information selectively to one particular reporter [or three].”

“In this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private,” she wrote. “There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including ‘trusted reporters,’ for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had?”

Judge McMahon therefore ordered CIA to prepare a more rigorous justification of its legal position. It was filed by the government yesterday.

CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from “unauthorized” disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said. “The CIA properly exercised its broad discretion to provide certain limited information to the three reporters.”

“The Court’s supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken,” the CIA response stated. “The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain. For these reasons, the limited disclosures here did not effect any waiver of FOIA’s exemptions.”

A reply from plaintiff Adam Johnson is due March 1. (Prior coverage: Tech Dirt, Intel Today).

Selective disclosure of classified information to uncleared reporters is a more or less established practice that is recognized by Congress, which has required periodic reporting to Congress of such disclosures. See Disclosing Classified Info to the Press — With Permission, Secrecy News, January 4, 2017.

The nature of FOIA litigation is such that a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.

Release of Security Clearance Data Delayed

Recent news stories on security clearances (like these from the Christian Science Monitor and NPR) cite data from 2015 regarding the number of persons cleared for access to classified information (4.2 million at that time).

Why aren’t more current numbers being cited?

More recent information has already been compiled in an annual report to Congress that was completed in October 2017. But its release to the public has been delayed indefinitely by an internal intelligence community dispute over the classification status or sensitivity of some of the more detailed reporting on individual agency statistics that are contained in the report.

In fact, the same detailed reporting was provided in the 2015 report and the same dispute over publication arose. But at that time, Obama Administration intelligence officials told security officers in effect to “knock it off” and to just release the report, which they did in June 2016.

The public disclosure of security clearance data was one of dozens of fundamental changes to national security information policy that were made during the Obama Administration to promote greater transparency. Although the annual report on security clearances was required by Congress (in the FY 10 intelligence authorization act), its public disclosure was a choice made by the Obama Administration. Now a different choice is being made.

A FOIA request for release of the latest report on security clearances is pending.

CSI: Palestine

The U.S. State Department provided crime scene investigation (CSI) equipment to Palestinian security forces to encourage a “move away from a confession-based investigation process,” according to a 2016 report to Congress that was recently released under the Freedom of Information Act.

See U.S. Assistance for Palestinian Security Forces and Benchmarks for Palestinian Security Assistance Funds, FY 2016 report to Congress, US Department of State.

The report provides a snapshot of US security assistance to the Palestinian Authority (PA) in March-August 2016, when the US provided training as well as technical support to enhance the quality and professionalism of Palestinian security practices. The report also describes steps taken by the State Department to ensure that any such assistance would not be diverted to unauthorized purposes.

U.S. support for PA security forces and the criminal justice sector in the West Bank has averaged around $100 million since 2008, according to the Congressional Research Service, though the amount has declined in recent years.

This funding “has been given to train, reform, advise, house, and provide nonlethal equipment for PA civil security forces in the West Bank loyal to President Abbas. This aid is aimed at countering militants from organizations such as Hamas and Palestine Islamic Jihad-Shaqaqi Faction, and establishing the rule of law for an expected Palestinian state.” See U.S. Foreign Aid to the Palestinians by Jim Zanotti, Congressional Research Service, December 16, 2016.

Prior background on the origins of US-Palestinian cooperation was presented by CRS in U.S. Security Assistance to the Palestinian Authority, January 8, 2010.

Some Palestinian critics object to the US security assistance program as an improper intervention in Palestinian politics that effectively strengthens Israeli occupation of the West Bank. See How US security aid to PA sustains Israel’s occupation by Alaa Tartir, Al Jazeera, December 2, 2016.

The current state of implementation of the Freedom of Information Act at the State Department is such that even a request for a specified unclassified document — such as the 2016 report to Congress on security assistance to the Palestinian Authority — took nearly two years to fulfill.

Update: Amir Oren reported on the State Department document in Walla news (in Hebrew).