2017 Intelligence Bill Passes the House

The Director of National Intelligence shall “review the system by which the Government classifies and declassifies information” and shall “develop recommendations… to make such system a more effective tool… and to support the appropriate declassification of information.”

That’s just one of the many requirements included in the Fiscal Year 2017 Intelligence Authorization Act (in section 708) that was approved by the House of Representatives on November 30, following negotiations with the Senate.

The House and Senate Intelligence Committees also produced an Explanatory Statement that presents extensive “unclassified congressional direction” on all kinds of intelligence policy matters high and low.

The joint Statement, included in the Congressional Record, notably adopts House language on reforming the pre-publication review requirement that current and former intelligence community employees (and certain others) must comply with. The Statement requires the DNI to “issue an IC-wide policy regarding pre-publication review” within 180 days that includes various specified elements that should improve the timeliness, clarity, and fairness of the review process.

The intelligence bill was crafted in response to Obama Administration policies and, in all likelihood, in anticipation of a Hillary Clinton Administration. But assuming that it is enacted into law, it will come into full effect in a Trump Administration of uncertain character and composition.

“There are many unknowns about the incoming administration, particularly how it will utilize and interact with the IC,” said Rep. Adam Schiff (D-CA), the Ranking Member of the House Intelligence Committee.

“It is now more important than ever that we give the IC the tools it needs to keep us safe and provide the necessary oversight required to ensure that they act in a manner consistent with our values and at all times,” he said on the House floor.

Intelligence Spending Increased in 2016

The amount of money appropriated for U.S. intelligence increased in 2016 by about 5 percent to a total of $70.7 billion, up from $66.8 billion the year before.

The total includes FY 2016 appropriations for both the National Intelligence Program (NIP) and the Military Intelligence Program (MIP), which were officially disclosed on October 28, as they have been each year since 2007.

Opponents of intelligence budget disclosure had argued for decades that release of the total budget figures would lead inexorably to further uncontrolled disclosures.

In 1976, former Director of Central Intelligence James Schlesinger told the Church Committee that “One of the problems here is the camel’s nose under the edge of the tent, and I think that that is the fundamental problem in the area. There are very few people who can articulately argue that the publication of those [budget] figures in and of themselves, if it stopped there, would be harmful. The argument is that then the pressure would build up to do something else, that once you have published for example the… budget, that the pressures would build up to reveal the kinds of systems that are being bought for that money, and it is regarded as the first step down a slippery slope for those who worry about those kinds of things.”

But that concern about a “slippery slope” appears to have been refuted in practice, and — aside from unauthorized disclosures — additional budget secrets have been effectively preserved.

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.”

A New Intelligence Award for “Reporting Wrongdoing”

Organizations give out awards not only in order to recognize individual excellence, but also to advance and reinforce values prized by their sponsors.

So it is both telling and somewhat unexpected that the U.S. intelligence community is creating a new award for certain kinds of dissidents and whistleblowers.

“The intelligence community has […] committed to establishing a National Intelligence Professional Awards program to recognize superior service by an intelligence professional in effectuating change by speaking truth to power, by exemplifying professional integrity, or by reporting wrongdoing through appropriate channels,” according to a new Self-Assessment Report on the Third Open Government National Action Plan that was released by the White House last week.

Professional integrity may be welcome everywhere, but “speaking truth to power” is rarely welcomed by “power.” Often it is not even acknowledged as “truth.” (Apparently, the IC envisions itself here as the domain of truth, and not of power. Or will those who challenge the IC leadership itself be eligible for the new award?) Meanwhile, “reporting wrongdoing” often seems to end badly for the reporter, as the frequency of whistleblower reprisal claims indicates.

Just last week, the DoD Inspector General released a redacted report on a whistleblower reprisal case at the Defense Information School at Fort Meade. According to a summary, “We substantiated the allegation that [name deleted] downgraded Complainant’s FY14 performance appraisal in reprisal for Complainant’s disclosures….”

But perhaps that is the point. Whether or not the IC intends to celebrate its own internal critics, it seems to want to encourage and now incentivize them, providing improved channels for dissent and whistleblowing that will not inevitably be career-enders or needlessly disruptive in other ways.

“ODNI has developed a new training curriculum concerning protections for whistleblowers with access to classified information. ODNI will coordinate the training curriculum with the relevant government departments and agencies. ODNI has met with civil society members to gather input,” the White House report said.

More than a dozen official intelligence awards already exist, as described in Intelligence Community Directive 655, National Intelligence Awards Program, amended February 9, 2012. But none of those existing awards explicitly encompasses “speaking truth to power” or “reporting wrongdoing.”

The House Intelligence Committee receives dozens of whistleblower complaints each year, The Intercept reported last week. The consequences of those complaints, if any, were not disclosed.

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The new White House report on the Third Open Government National Action Plan identified a series of intelligence-related transparency measures that will be taken to “make information regarding foreign intelligence activities more publicly available while continuing to protect such information when disclosure could harm national security.”

So, for example, “ODNI is building out content for the Intelligence.gov website and will launch the site by January 2017.”

More generally, “ODNI has coordinated and participated in ongoing engagement with civil society stakeholders including open government organizations, privacy and civil liberties advocates, community organizations, and academia. Representatives from the intelligence community also regularly participate in public events. ODNI continues to develop avenues to make such engagements a more institutionalized part of the intelligence community’s work.”

The White House report and a companion report on New Open Government Initiatives identified various other incremental steps that are planned or already in progress.

In order to “increase [the] transparency and quality of [U.S.] foreign aid data,” the ForeignAssistance.gov website has recently been established. It is already quite informative, and it is expected to grow in depth and coverage, with several additional agencies contributing new data fields.

Among other initiatives, the U.S. has also been releasing new data related to climate change, and on the Arctic.

“More than 250 high-value, Arctic-related datasets are now easily and openly available. In addition, more than 40 maps, tools, and other resources designed to support climate-resilience efforts in Alaska and the Arctic are also available.”

Publishing such information should be comparatively easy, since doing so does not directly threaten any institutional interests. But it doesn’t happen by itself, and so credit is due to the agencies involved for making it happen.

Sorting Through the Snowden Aftermath

Public discussion of the Edward Snowden case has mostly been a dialog of the deaf, with defenders and critics largely talking past each other at increasing volume. But the disagreements became sharper and more interesting over the past week.

“Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal,” wrote the members of the House Intelligence Committee in a startling September 15 letter to the President, urging him not to pardon Snowden, contrary to the urging of human rights groups.

“The public narrative popularized by Snowden and his allies is rife with falsehoods, exaggerations, and crucial omissions,” the House Intelligence Committee wrote in the executive summary of an otherwise classified report on Snowden’s disclosures.

Remarkably, however, the House Committee report itself included numerous false statements and misrepresentations, according to an analysis by Barton Gellman, who had reported on Snowden’s disclosures for the Washington Post.

“The report is not only one-sided, not only incurious, not only contemptuous of fact. It is trifling,” wrote Gellman, who identified several apparent errors and falsehoods in the House Committee summary.

What is perhaps worse than what’s contained in the House document, though, is what is missing from it: Congressional intelligence overseers missed the opportunity to perform any reflection or self-criticism concerning their own role in the Snowden matter.

The fact that U.S. intelligence surveillance policies had to be modified in response to the public controversy over Snowden’s disclosures was a tacit admission that intelligence oversight behind closed doors had failed to fulfill its role up to that point. But since the Committee has been unwilling to admit any such failure, it remains unable to take the initiative to rectify its procedures.

Last week, a coalition of non-governmental organizations proposed various changes to House rules that they said would help to improve the quality of intelligence oversight and make it more responsive to congressional needs and to the public interest.

Meanwhile, several human rights organizations launched a campaign to urge President Obama to pardon Snowden.

“Thanks to his act of conscience, America’s surveillance programs have been subjected to democratic scrutiny, the NSA’s surveillance powers were reined in for the first time in decades, and technology companies around the world are newly invigorated to protect their customers and strengthen our communications infrastructure,” the petition website said. “Snowden should be hailed as a hero. Instead, he is exiled in Moscow, and faces decades in prison under World War One-era charges that treat him like a spy.”

However, aside from that oblique reference to the Espionage Act of 1917, the petition campaign does not acknowledge any defect in Snowden’s conduct or weigh counterarguments. (A somewhat more nuanced defense of a pardon was presented by Tim Edgar in Lawfare. A substantial rebuttal to the pardon proposal was offered by Jack Goldsmith also in Lawfare.)

But of course what complicates the Snowden matter is that his disclosures exceeded the boundaries of “democratic scrutiny” and went well beyond any identifiable “act of conscience.”

“The fact is, many of Snowden’s documents bore no resemblance to whistleblowing as the phrase is broadly understood,” wrote Fred Kaplan in a review of the new Oliver Stone movie about Snowden in Slate. Rather, he said, they represented “an attempt to blow U.S. intelligence operations.”

Advocacy journalist Glenn Greenwald replied with a debater’s point that Snowden is innocent of any such offense since he (Snowden) did not directly disclose anything at all to the public! Instead, he gave documents to newspapers that reported on his material, and those papers are responsible for any inappropriate disclosures.

“Snowden himself never publicly disclosed a single document, so any programs that were revealed were the ultimate doing of news organizations,” according to Greenwald.

In an oddly mercenary argument, he also wrote that it was hypocritical of the Washington Post editorial board to oppose a pardon for Snowden, considering that the Post had gained “untold millions of clicks” from his disclosures, and therefore somehow owed him a debt of loyalty.

But an effort to shift responsibility away from Snowden on to news reporters and editors proves too much. It implies that Snowden is not a whistleblower at all, since he himself didn’t blow any whistles, his journalistic collaborators did.

It seems more sensible to conclude that Snowden is responsible for his own actions as well as for the directly foreseeable consequences of those actions.

In an interesting response to Jack Goldsmith, Marcy Wheeler wrote that it is possible to comprehend — if not to reconcile — the sharply opposing views of the Snowden case if they are understood as a clash between professed American values (such as openness, privacy, and internet freedom) and American interests and actions (such as global surveillance and projection of military power). The former, “cosmopolitan” view presumes, however, that the favored values transcend, and can be sustained apart from, their national and institutional roots.

On Covert Action in Angola in the Carter Years

U.S. covert action in Angola during the Carter Administration is among the topics documented in a new volume of the official Foreign Relations of the United States (FRUS) series that was released yesterday. See Foreign Relations of the United States, 1977–1980, Volume XVI, Southern Africa.

The CIA had secretly intervened in Angola in 1975, during the Ford Administration. But in 1976, Congress enacted legislation known as the Tunney-Javits Clark Amendment to prohibit any such paramilitary involvement in that country, even on a covert basis. (William Blum, an often acerbic critic of U.S. policy, wrote that this was “one of the infrequent occasions in modern times that the US Congress has exercised a direct and pivotal influence upon American foreign policy,” thereby avoiding “the slippery slope to another Vietnam.”)

In the wake of the congressional prohibition, the Carter Administration struggled to determine whether further covert action in Angola was feasible, desirable, or lawful.

Officials settled on a covert propaganda operation to focus on criticizing the Cuban presence in Angola. The new FRUS volume “contains inter-departmental records pertaining to the development and implementation of the covert operation in Angola.”

The new collection details the mechanics of covert propaganda with unusual clarity. “We […] need to get the story out in the open so that our controlled assets can use it,” wrote DCI Stansfield Turner in a 1977 memorandum (document 16).

The effectiveness of legislation as a constraint on CIA covert action was notable, and the new assertiveness of Congress regarding intelligence policy was recognized and largely accepted by intelligence officials. “Before embarking on a covert action program involving direct or indirect paramilitary support, it would be wise to ascertain the sense of Congress.”

“Our previous covert paramilitary support of UNITA in Angola [in 1975] generated a great deal of controversy. Angola may be a poor choice as to the place where we try to engage in some further covert paramilitary action. An abortive attempt to reopen the issue of covert paramilitary support of UNITA–even indirect–could lead to damage to our capability and flexibility to undertake any covert action in the future,” wrote DCI Turner. (document 21)

During the Carter years, there were several innovations in the execution of covert action policy, detailed in the new FRUS volume.

For example, a new category of presidential findings known as “Perspectives” was adopted for “worldwide” or “generic” covert operations, the FRUS editors wrote.

“Perspectives were drafted by the CIA and cleared by the Department of State, so that the CIA could vet the operational feasibility and risks of the program while State could assess the diplomatic risks and verify that the program was consistent with overall foreign policy goals.”

Another covert action document category that was first introduced in the Carter years was the “Memorandum of Notification” (MON).

“MONs were initially used to introduce higher-risk, significantly higher-cost, or more geographically-specific operations under a previously-approved world-wide or general objective outlined in a Perspectives document…. MONs subsequently came to be used for significant changes to any type of [covert action] finding, not just worldwide ones.”

However, “Entirely new covert actions continued to require new presidential findings.”

The Foreign Relations of the United States series, which now includes more than 450 volumes, is produced by the Office of the Historian of the State Department with the oversight of the Advisory Committee on Historical Diplomatic Documentation. FRUS is required under a 1992 law to present a “thorough, accurate, and reliable documentary record of major United States foreign policy decisions.”

Among other issues concerning Southern Africa, the new FRUS volume notably includes discussion of a suspected South African nuclear weapons test that may have occurred in September 1979.

FRUS Volume on Iran 1953 Still Unreleased

Meanwhile, a long-delayed retrospective FRUS volume on Iran in 1953, based on official Eisenhower Administration records of CIA involvement in the coup against the Mossadegh government, remains held up.

A decision on whether to proceed with publication of the 1953 Iran volume was elevated in the past year to Secretary of State Kerry, who decided to block its release. The logic of his decision is obscure, but presumably it is based on a belief that publication would somehow perturb relations with Iran in an unfavorable way. (A plausible argument could be made that the opposite would more likely be the case, and that an honest reckoning with the past is a prerequisite to improved relations in the future.)

Although many relevant records are thought to have been destroyed and others have already been released, the withheld volume on Iran 1953 includes “a lot of new material,” according to an historian who is familiar with its contents.

Security for Domestic Intelligence Facilities Revised

On June 13, a mentally ill man rammed his car into the gate at CIA headquarters, causing some damage and disruption (See “CIA Gate Crasher Gets 30-day Sentence” by Rachel Weiner, Washington Post, August 16).

Three days later, Director of National Intelligence James Clapper issued a new directive on Security Standards For Protecting Domestic IC Facilities. A copy of the unclassified Intelligence Community Directive 706, dated June 16, 2016, was recently made available by the Office of the Director of National Intelligence.

The new intelligence directive sets security standards for “planning and designing new facilities and renovation of existing facilities.”

“The protection of facilities is a preeminent concern for the IC. Applying baseline physical security standards to manage risks and mitigate threats enables the IC to effectively protect facilities and reduce vulnerabilities.”

However, while facility security is “a” preeminent concern, it is not “the” preeminent concern. Security remains subordinate to the intelligence mission:

“IC facilities shall comply with the appropriate physical security standards… except where that compliance would jeopardize intelligence sources and methods,” the directive states.

Improved Coordination of HUMINT Collection Sought

The Director of National Intelligence issued — and last week published — a pair of Intelligence Community Directives (here and here) that aim to improve the coordination of human intelligence collection for foreign intelligence and counterintelligence purposes.

The directives are intended “to ensure the deconfliction, coordination, and integration of intelligence activities,” including liaison with foreign intelligence services, in order “to significantly enhance the security of the nation by effectively and efficiently allocating resources.”

The basic idea seems to be to make sure that HUMINT collection agencies are not stepping on each other’s toes and that, to the contrary, they are actively assisting one another in their operations. The desired coordination “should not be pro forma,” the directives both said. “It should include the timely exchange by IC elements of pertinent and necessary information to facilitate operational success.”

See Coordination of Clandestine Human Source and Human-Enabled Foreign Intelligence Collection and Counterintelligence Activities Outside the United StatesIntelligence Community Directive 310, June 27, 2016, and

Coordination of Clandestine Human Source and Human-Enabled Foreign Intelligence Collection and Counterintelligence Activities Inside the United StatesIntelligence Community Directive 311, June 27, 2016.

The new Directives do not disclose any classified operations or intelligence methods. Yet they are revealing and interesting in several ways.

First, their public availability is a sign of the shifting boundaries of intelligence-related secrecy. The directives were prepared as unclassified documents and were made public on the ODNI website. By contrast, their precursor — Director of Central Intelligence Directive 5/1P on Espionage and Counterintelligence Activities Abroad(which is now rescinded) — was not publicly released.

Second, the new releases conform to and advance the DNI’s transparency policy, which promised to increase public disclosure of the IC’s “governance framework–the rules, authorities, compliance mechanisms, and oversight that guide its activities.” This is not the stuff of headlines (except in Secrecy News). There is nothing scandalous about the directives; to non-specialists, they may actually be kind of boring. But they are part of an ongoing adaptation to public expectations of greater intelligence transparency. They also represent a notable step away from “secret law,” i.e. the reliance on undisclosed mandates or internal regulations that are inaccessible to the public.

The directives, which feature lots of “if…, then…” clauses, show the emphatically rule-based character of much of intelligence policy. The directives were plainly written by lawyers. (A sample sentence: “For purposes of this Directive, the term ‘coordination’ is understood to encompass ‘deconfliction’ and ‘integration’.”). A human intelligence collector in the field may need a lawyer standing by to explain their full meaning and implications.

Apparently, though, this is nothing new.

When he joined the CIA in 1975, wrote former CIA attorney John Rizzo in his 2014 book Company Man, “I was struck by how much scope and impact CIA lawyers, even one as wet behind the ears as I was, had on the day-to-day mission of the Agency.”

Russia Foreign Intelligence Service Expands

The headquarters complex of the Foreign Intelligence Service (SVR) of the Russian Federation has expanded dramatically over the past decade, a review of open source imagery reveals.

Since 2007, several large new buildings have been added to SVR headquarters, increasing its floor space by a factor of two or more. Nearby parking capacity appears to have quadrupled, more or less.

The compilation of open source imagery was prepared by Allen Thomson. See Expansion of Russian Foreign Intelligence Service HQ (SVR; Former KGB First Main Directorate) Between 2007 and 2016, as of July 11, 2016.

Whether the expansion of SVR headquarters corresponds to changes in the Service’s mission, organizational structure or budget could not immediately be learned.

Russian journalist and author Andrei Soldatov, who runs the Agentura.ru website on Russian security services, noted that the expansion “coincides with the appointment of the current SVR director, Mikhail Fradkov, in 2007.” He recalled that when President Putin introduced Fradkov to Service personnel, he said that the SVR should endeavor to help Russian corporations abroad, perhaps indicating a new mission emphasis.

2017 Intelligence Bill Would Constrain Privacy Board

The jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB) would be restricted for the second year in a row by the Senate Intelligence Committee version of the FY2017 Intelligence Authorization Act (S.3017). Section 603 of the Act would specifically limit the scope of PCLOB’s attention to the privacy and civil liberties “of United States persons.”

Internal disagreements over the move were highlighted in the Committee report published last week to accompany the text of the bill, which was reported out of Committee on June 5.

“While the PCLOB already focuses primarily on U.S. persons, it is not mandated to do so exclusively,” wrote Senators Martin Heinrich and Mazie K. Hirono in dissenting remarks appended to the report. “Limiting the PCLOB’s mandate to only U.S. persons could create ambiguity about the scope of the PCLOB’s mandate, raising questions in particular about how the PCLOB should proceed in the digital domain, where individuals’ U.S. or non-U.S. status is not always apparent. It is conceivable, for example, that under this restriction, the PCLOB could not have reviewed the NSA’s Section 702 surveillance program, which focuses on the communications of foreigners located outside of the United States, but which is also acknowledged to be incidentally collecting Americans’ communications in the process,” they wrote.

“Over the past three years, the Privacy and Civil Liberties Oversight Board has done outstanding and highly professional work,” wrote Sen. Ron Wyden in his own dissent. “It has examined large, complex surveillance programs and evaluated them in detail, and it has produced public reports and recommendations that are quite comprehensive and useful. Indeed, the Board’s reports on major surveillance programs are the most thorough publicly available documents on this topic. My concern is that by acting to restrict the Board’s purview for the second year in a row, and by making unwarranted criticisms of the Board’s staff in this report, the Intelligence Committee is sending the message that the Board should not do its job too well.”

In support of the provision, the report said that “The Committee believes it is important for the Board to consider the privacy and civil liberties of U.S. Persons first and foremost when conducting its analysis and review of United States counterterrorism efforts.”

But the PCLOB already considers U.S. person privacy “first and foremost.” And the language of the Senate bill does not appear to permit even “secondary” consideration of the privacy of non-U.S. persons. Last year, the FY2016 intelligence authorization bill barred access by the Board to information deemed relevant to covert action.

On June 16, Sen. Patrick Leahy paid tribute to retiring PCLOB chair David Medine on the Senate floor. “[PCLOB] reports and Mr. Medine’s related testimony before the Senate Judiciary Committee have been tremendously beneficial to Congress and the American people in examining government surveillance programs,” he said.