A Leak Prosecution That Didn’t Happen

Government prosecutors have been aggressively pursuing suspected leakers of classified information:

Reality Winner, accused of disclosing a document “information relating to the national defense” to a news outlet, changed her plea this week from “not guilty” to “guilty.”

Former FBI agent Terry J. Albury likewise pleaded guilty last April to unauthorized retention and disclosure of national defense information.

Former Senate Intelligence Committee security officer James A. Wolfe was indicted this month for allegedly lying to the FBI in the course of a leak investigation.

And also this month, Joshua Adam Schulte was indicted for allegedly disclosing national defense information to a certain “organization that purports to publicly disseminate classified, sensitive, and confidential information.”

But not every leak results in an official leak investigation. And not every leak investigation produces a suspect. Nor is every leak suspect prosecuted.

In its latest semi-annual report, the Office of the Intelligence Community Inspector General describes one recent case of an acknowledged leaker of classified information who was allowed to resign without prosecution.

The IC Inspector General “substantiated allegations that an ODNI cadre officer disclosed classified information without authorization, transmitted classified information via unauthorized means, and disclosed classified information to persons not authorized to receive it.”

“During a voluntary interview, the ODNI cadre officer admitted to transmitting classified information over unclassified (internet) email to recipients not authorized to receive classified national security information.”

But the matter was resolved outside of the criminal justice system.

“The U.S. Attorney’s Office for the Eastern District of Virginia declined prosecution. The officer, who was retirement eligible, retired before termination,” the IC IG report said.

No other details about the episode were disclosed. But the case illustrates that a variety of responses to leak incidents are available to the government short of criminal prosecution.

A House bill to authorize intelligence spending for FY 18 and 19 (HR 6237), introduced yesterday, would require expanded reporting to Congress on unauthorized disclosures of classified information.

CIA Poke at DoD Intelligence Was Not “Substantiated”

In a dispute that pitted member agencies of the U.S. intelligence community against each other, the Central Intelligence Agency claimed that “a questionable intelligence activity” had been carried out in 2014 by agents of the Department of Defense.

But an investigation of the matter by the DoD Inspector General that was partially declassified last week failed to corroborate the CIA claim.

At issue was whether or not an unnamed individual had “conducted unauthorized intelligence activities in Europe on behalf of DoD,” as CIA had alleged.

“We were unable to substantiate the CIA allegation and could not find any evidence that [deleted] traveled to Europe or paid any sources on behalf of the DoD,” the Inspector General concluded.

“We could not find evidence of DoD intelligence tasking,” the IG investigative summary said. “In addition, we verified that [deleted] did not travel to Europe in 2014.”

The IG summary report, which had been classified Secret/Noforn, was partially declassified and released under the Freedom of Information Act last Friday.  See Investigative Results of a Questionable Intelligence Activity (redacted), DoD Inspector General report DODIG-2015-171, September 8, 2015.

Meanwhile, for his part, the alleged DoD culprit “asserts that the CIA fabricated the allegation that [deleted] had been conducting intelligence operations in Europe in order to ensure that [several words deleted] because [deleted] claimed [deleted] had previously identified and revealed analytical flaws within CIA analysis.”

However, that counter-accusation “was outside the scope of our investigation and has been referred to the Intelligence Community Inspector General for review.”

The exact nature of the alleged questionable intelligence activity and the identity of the individual(s) involved were not declassified.

Nor would CIA elaborate on the public record.

“You can say CIA declined to comment,” said CIA spokesperson Ryan Trapani.  “We defer to DOD on the document.”

Secrecy Reduced at Justice Dept, Audit Finds

The Department of Justice has streamlined its national security classification activities over the last several years, resulting in the production of a diminishing number of secrets, according to a new report from the Department’s Inspector General.

Specifically, the IG found:

*     the Department reduced the number of Original Classification Authorities (i.e. officials who are authorized to generate newly classified information) from 64 in FY 2013 to 46 in FY 2016.

*     the Department reduced its original classification decisions (new secrets) from 4,455 in FY 2013 down to zero in FY 2015.

*     the number of derivative classification decisions (involving incorporation of previously classified information into new documents) also declined from 8.4 million in FY 2012 down to 7.7 million in FY 2015.

In short, there has been “a marked shift in classification behavior throughout DOJ,” the IG report said.

See Follow-up Audit of the DOJ’s Implementation of and Compliance with Certain Classification Requirements, second audit under the Reducing Over-Classification Act of 2010, September 2016.

(The IG report also identified some areas for improvement, including more appropriate use of the ORCON dissemination marking, and other classification practices, especially at the Drug Enforcement Administration.)

The reduced scope of national security secrecy at the Justice Department has been paralleled throughout much of the executive branch in recent years, such that the production of new secrets in the last two years is at the lowest levels reported in several decades. (“Number of New Secrets in 2015 Near Historic Low,” Secrecy News, July 29, 2016). By this measure, at least, one might even conclude that the Obama Administration is the most transparent ever.

While the systemic reduction of national security secrecy does not resolve all (or any) remaining disputes over secrecy policy, it does help to clarify them and perhaps to render them somewhat more tractable.

“There’s more work to be done here [on revising classification policy],” said Director of National Intelligence James Clapper last week at a forum of the Intelligence and National Security Alliance. “And at some point, there will need to be, I believe, a fairly fundamental change in the classification system, not just in the I.C. but across the government.”

“The basic structure [of the classification system] is of course born out of a hard copy paper era and the rules we have today really aren’t compatible with the technology and the way we conduct our business. So at some point, I think there’ll be ‐‐ have to be a fundamental change. In the meantime, I’m kind of [doing], you know, what I can within the confines of the current system,” DNI Clapper said.

DoD Use of Domestic Drones Complies with Law, IG Says

The domestic use of unmanned aerial systems (UAS, or drones) by the Department of Defense in support of civil authorities has been conducted in accordance with law and policy, the DoD Inspector General said in a 2015 report of an evaluation that was released last week.

“DoD is fully compliant with laws, regulations, and national policies for UAS support to civil authorities,” the DoD IG report said.

“We found no evidence that any DoD entity using UAS’s or associated PED [processing, exploitation, and dissemination] in support of domestic civil authorities, to date, has violated or is not in compliance with all statutory, policy, or intelligence oversight requirements.”

Oddly, that conclusion was marked “For Official Use Only.”  See Evaluation of DoD Use of Unmanned Aircraft Systems (UAS) for Support to Civil Authorities, DoD Inspector General report DODIG-2015-097, March 20, 2015. The partially redacted report was released last week in response to a Freedom of Information Act request.

DoD support to civil authorities using drones can be provided, given proper authorization, for domestic emergencies, support to law enforcement, or to provide added security for high-profile “special events.”

Domestic use of drones by DoD for such purposes is comparatively rare. The DoD Inspector General reported that between 2006 and 2015 there were “less than twenty events that could be categorized as DoD UAS support to domestic civil authorities,” and that that number included “both approved and disapproved requests.”

The Department of Defense provided updated Guidance for the Domestic Use of Unmanned Aircraft Systems last year in a February 17, 2015 policy memorandum.

“Armed DoD UAS may not be used in the United States for other than training, exercises, and testing purposes,” the memo said.

Afghanistan Contracting Flawed, DoD IG Says (FOUO)

The Government of Afghanistan is not equipped to manage contracts and “as a result, future direct assistance funds are vulnerable to increased fraud and abuse,” the Department of Defense Inspector General said in a report last month. The IG report was marked “For Official Use Only” and was not publicly released.

See The Government of Islamic Republic of Afghanistan’s Controls Over the Contract Management Process for U.S. Direct Assistance Need Improvement, DoD Inspector General, February 26, 2015.

The Inspector General assessment was reported by Bloomberg News yesterday (“Afghanistan Can’t Manage Billions in Aid, U.S. Inspector Finds” by Anthony Capaccio, March 10).

Also yesterday, the Department of Defense reissued guidance specifying that unclassified geospatial intelligence products may be withheld from public release under certain conditions, including international restrictions or operational security concerns. See DoD Instruction 5030.59, National Geospatial-Intelligence Agency (NGA) Limited Distribution Geospatial Intelligence (GEOINT), March 10, 2015.

IC Inspector General Oversees the Intelligence Community

Updated below

The Intelligence Community Inspector General (IC IG) received a tip last year that the Intelligence Community might have assembled a database containing US person data in violation of law and policy.

“A civilian employee with the Army Intelligence and Security Command made an IC IG Hotline complaint alleging an interagency data repository, believed to be comprised of numerous intelligence and non-intelligence sources, improperly included U.S. person data,” the IC IG wrote. “The complainant also reported he conducted potentially improper searches of the data repository to verify the presence of U.S. persons data. We are researching this claim.”

The resolution of that complaint concerning improper collection of U.S. person data was not disclosed. But the IC IG evidently found it credible enough to justify a rare report to the White House Intelligence Oversight Board (IOB).

Update, 12/04/14: The IC IG said it did not corroborate the complaint. “We researched this allegation to determine whether the data repository was operating with sufficient internal controls to provide reasonable assurance that the collection, retention and dissemination of information complied with applicable laws, executive orders, policies, and regulations. We reached a preliminary conclusion that this was the case and thus had no basis for further review.” The case was closed on June 4, 2014.

The report to the IOB was noted in the IC Inspector General’s Semi-Annual report for October 2013 to March 2014 that was released this week (in redacted form) under the Freedom of Information Act.

The IC Inspector General, I. Charles McCullough III, has oversight responsibility both for the Office of the Director of National Intelligence (ODNI) and for the Intelligence Community as a whole (but not for its individual member agencies). In addition to monitoring compliance with the law, the IC IG deals with a broad range of administrative, budgetary and personnel issues, several of which are described in the new report.

So, for example, “[An intelligence] contractor misconduct investigation substantiated that a contractor employee routinely misused government equipment and systems to engage in inappropriate and prurient Internet chat over an extended period of time.”

Judging from the Semi-Annual Reports, the IG is also capable of challenging senior ODNI leadership when there is cause to do so.

“An ODNI Senior Official engaged in conduct unbecoming a federal employee while on TDY [temporary duty] conducting official ODNI business,” according to the Semi-Annual Report for March-September 2013, which was also released this week.

“The Senior Official exhibited poor personal judgment that created circumstances which reflected poorly on the ODNI and potentially impaired his ability to perform his duties,” the IG report said. The case was referred to the ODNI Chief Management Officer, but further details such as the identity of the Senior Official were not divulged.

In the concentric circles of U.S. intelligence oversight, Inspectors General are close to the center — receiving allegations, interviewing witnesses, formulating responses, and taking appropriate action.

Though heavily redacted, the new Semi-Annual Reports include multiple points of interest, including these:

**    During the six-month period ending in March 2014, the IC IG processed 5 whistleblower complaints of waste, fraud or abuse, 3 “urgent concern” complaints, 2 requests for external review under the provisions of Presidential Policy Directive 19, and 1 whistleblower reprisal complaint. The outcomes of these cases were not described.

**    During the six-month period ending September 2013, the IC IG investigated two cases of unauthorized disclosures, neither of which was substantiated. There were no such investigations in the following six-month period.

**    “ODNI does not have a policy or process for notifying CIA Covert Capabilities Center when an employee or detailee separates from ODNI or is reassigned,” the IC IG reported. The CIA “Covert Capabilities Center” is not a familiar entity.

**    “An adverse work environment exists” in the IC Equal Employment Opportunity and Diversity Office.

**    In the six-month period ending last March, the IC IG complaint hotline “received 135 contacts, 48 internal contacts and 87 external contacts from the general public. ”

**    And while most ODNI and IC employees are directed to have no contacts with the media without prior authorization, the IC Inspector General made special arrangements for himself and his staff:  “We worked with PAO [ODNI Public Affairs Office] so they understood the need for the IC IG to work independently with media contacts to preserve IC IG objectivity and independence.”

In a four-part series this week, the Washington Examiner reported allegations that some agency Inspectors General are improperly subservient to, and protective of, their agency leadership.

Army Equipment Lost in Afghanistan (FOUO)

Hundreds of millions of dollars worth of U.S. Army equipment and supplies in Afghanistan have been lost or are unaccounted for, a report from the Department of Defense Inspector General said.

“Since 2010, 309 forward operating bases [in Afghanistan] have closed and only a fraction of lost items from previous [inventory loss investigations] have been located. For example, between 2006 and 2010, there were 174,247 pieces of equipment listed as unaccounted for […], valued at $429.5 million…. As of May 30, 2014, only 40,690 (23 percent) of the total pieces of equipment and $191.1 million (44 percent) of the total dollar amount have been recovered,” the IG report said.

That paragraph in the report was marked “For Official Use Only,” as was the report as a whole.  Accordingly, the report has not been officially released to the public. (The findings of the report were previously reported by Bloomberg News).

The October 30 report is entitled “The Army Needs to Improve the Processes for Reporting Inventory Losses in Afghanistan.”

In the Department of Defense, “For Official Use Only” applies to unclassified records that may be exempt from mandatory disclosure under the Freedom of Information Act. It is not clear how the FOUO marking might be justified in this case.