PCLOB Releases Its Oversight Agenda

The Privacy and Civil Liberties Oversight Board is conducting oversight in nearly a dozen areas broadly related to intelligence and counterterrorism. The PCLOB oversight agenda was detailed in a statement this week.

“This document describes the Board’s active oversight projects and other engagements. . . .The shorthand descriptions below are intended to provide public transparency, consistent with the protection of classified information and other applicable law,” the July 1 statement said.

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Meanwhile, the Department of Defense issued a new directive outlining how it will obtain and make use of public information. See DoD Access to and Use of Publicly Available Information (PAI), DoD Directive 3115.18, June 11, 2019.

The directive said that DoD will collect public information in an open and transparent way — except when it is authorized to employ deception.

As a general matter, “DoD personnel will not use false assertions of identity or organizational affiliation for official purposes to access, acquire, or use PAI without complying with cover policies . .  and other DoD guidance and issuances on the use of cover,” the directive said.

“Cover” is defined as “The concealment of true identity or organizational affiliation with assertions of false information as part of, or in support of, official duties to carry out authorized activities or lawful operations.”

Administrative Subpoenas for Leak Investigations?

The possibility of using subpoenas to compel testimony from reporters or others in leak investigations outside of a criminal prosecution is being floated by the Intelligence Community Inspector General.

But such authority would have to be granted legislatively, and so far there is no sign that Congress is considering doing so.

The government’s interest in using administrative subpoenas was mentioned in the latest semi-annual report of the IC Inspector General:

 “In March 2019, [IC] Inspector General Atkinson and the Inspector General of the Department of Justice met a second time with the President’s Intelligence Advisory Board to discuss, among other things, legislative approaches to reduce unauthorized disclosures, including testimonial subpoena authority for OIGs to compel non-agency individuals to provide testimony in administrative investigations.” (page 19)

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Administrative investigations of leaks may occur before a criminal proceeding has been initiated, or after the Justice Department has declined criminal prosecution, as it often does. (In 2017-2018 there were over 200 referrals to the Justice Department of suspected criminal leaks, but only a handful of actual prosecutions ensued.)

As an alternative to criminal prosecution, administrative investigations can result in punishment of suspected leakers in the form of loss of security clearance, termination of employment, or monetary penalties.

In a criminal case, prosecutors can subpoena witnesses such as reporters and seek to compel their testimony. In the case of accused leaker Jeffrey Sterling, an appeals court concluded in a 2013 opinion that the government was within its rights to subpoena reporter James Risen. Although Risen did not ultimately testify in that case, the ruling authorizing a subpoena for a reporter in such circumstances remains in place after the US Supreme Court declined to review it.

But in internal administrative leak investigations, subpoena authority is not currently available (outside of espionage investigations involving a foreign power). It is this power which the IC Inspector General has now raised for discussion.

Trump Demotes DNI to Empower AG Barr

President Trump issued a memorandum last week that transfers to the Attorney General the authority of the Director of National Intelligence to declassify intelligence information concerning the 2016 election.

The memorandum effectively amends Executive Order 13526 on classification on national security information, but in a highly customized way: It applies only to Attorney General William Barr (not any successors) and only to the investigation of the 2016 presidential campaigns. The memorandum was published in the Federal Register today.

Even so, the move represents a functional demotion of the Director of National Intelligence and a partial transfer of his authority to the Attorney General.

Executive Order 13526 gave sweeping authority over declassification of intelligence information to the DNI, who was authorized to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities.” (sect. 3.1c)

The new presidential memorandum adopts the same language but modifies the provision to state that it is Attorney General Barr who may now “declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates to the Attorney General’s review.”

No rationale for the change was provided, though it was understood to support the Attorney General’s investigation into what he called U.S. government “spying” on the Trump campaign.

Senator Mark Warner (D-VA) warned that the move threatened to politicize intelligence. “Selectively declassifying sources and methods in order to serve a political agenda will make it harder for the intelligence community to do their jobs protecting this country from those who wish to do us harm,” he said.

For his part, DNI Dan Coats said that “I am confident that the Attorney General will work with the IC in accordance with the long-established standards to protect highly-sensitive classified information that, if publicly released, would put our national security at risk.”

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There is some precedent for overriding the judgment of the DNI concerning the protection of sources and methods.

A 1999 decision of the Justice Department Office of Legal Counsel concluded that the presidentially-established Interagency Security Classification Appeals Panel could declassify intelligence information over the objections of the Director of Central Intelligence.

While it is true that the DCI, and now the DNI, is obliged by the National Security Act to protect intelligence sources and methods from unauthorized disclosure, the Director’s authority in this area is not absolute or exclusive.

Specifically, “If the President concludes that information concerning intelligence sources and methods should not be classified, the disclosure of such information simply is not ‘unauthorized’ within the meaning of the [National Security Act],” wrote Randolph D. Moss of the Office of Legal Counsel in his 1999 opinion.

Still, this OLC conclusion may not be correct (said a non-lawyer) because “declassification” is not the same as “disclosure.” Even intelligence information that is declassified or unclassified may still be, and often is, protected from public disclosure by the DNI under the provisions of the National Security Act.

The new presidential memorandum does not address the question of disclosure at all.

DNI: IC Should be “Model Employer” for Disabled Persons

New policy guidance from the Director of National Intelligence directs the U.S. intelligence community to provide equal opportunities “for the hiring, placement, and advancement of qualified individuals with disabilities,” as required by law.

“IC elements shall be model employers for individuals with disabilities,” wrote DNI Dan Coats. See Employment of Individuals with Disabilities, Intelligence Community Policy Guidance 110.1, February 26, 2019.

As of 2017, 7.9% of the U.S. intelligence community workforce was made up of persons with disabilities, compared to an 8.99% disability rate in the federal workforce and 17.5% in the overall civilian labor force. (A disability is “a physical or mental impairment that substantially limits one or more of the major life activities of an individual.”)

“Persistent workplace challenges continue to exist for women, minorities, and persons with disabilities in the IC. Unfortunately, the IC’s aggressive efforts to improve diversity and inclusion are not having their intended effects,” according to a 2017 ODNI report on the subject (that pre-dated the appointment of Gina Haspel as CIA Director).

While many of the challenges facing disabled persons are generic and widespread, some are unique to intelligence agencies.

“Employees with disabilities may… be specifically challenged by sitting for a polygraph. Participants expressed concern that certain disabilities, such as mobility limitations or respiratory impairments, may impact polygraph testing results.”

The premise of the declared IC policy on diversity and inclusion is that it benefits the country by enabling the employment of qualified persons who would otherwise be excluded from the workforce or denied full participation. Of all disfavored groups, disabled persons reflect the broadest cross section of the public.

“A disability can happen to anyone, at any point in life, and is the one variable that crosses all demographic lines,” the ODNI study said. “Greater diversity exists among persons with disabilities than for any other demographic group, but they may be the least understood by society at large, and by extension, by decision makers and the general workforce within the IC.”

Declassified U2 Photos Open a New Window into the Past

Updated below

Archaeologists are using declassified imagery captured by U2 spy planes in the 1950s to locate and study sites of historical interest that have since been obscured or destroyed.

This work extends previous efforts to apply CORONA spy satellite imagery, declassified in the 1990s, to geographical, environmental and historical research. But the U2 imagery is older and often of higher resolution, providing an even further look back.

“U2 photographs allowed us to present a more complete picture of the archaeological landscape than would have otherwise been possible,” wrote archaeologists Emily Hammer and Jason Ur in a new paper. See Near Eastern Landscapes and Declassified U2 Aerial ImageryAdvances in Archaeological Practice, published online March 12, 2019.

The exploitation of U2 imagery required some ingenuity and entrepreneurship on the authors’ part, especially since the declassified images are not very user-friendly.

“Logistical and technical barriers have for more than a decade prevented the use of U2 photography by archaeologists,” they noted. “The declassification included no spatial index or finding aid for the planes’ flight paths or areas of photographic coverage. The declassified imagery is not available for purchase or download; interested researchers must photograph the original negatives at the NARA II facility in College Park, Maryland.”

Since no finding aids existed, the authors created them themselves. Their paper also contains links to web maps to help other researchers locate relevant film cans and order them for viewing in College Park.

“These [U2] photographs are a phenomenal historical resource,” said Professor Ur. “Have a look at Aleppo in 1959 and Mosul in 1958. These places are now destroyed.”

Update: Related work involving declassified aerial imagery in the UK was described in “Use of archival aerial photographs for archaeological research in the Arabian Gulf” by Richard N. Fletcher et al, Proceedings of the Seminar for Arabian Studies 48 (2018): 75–82:

    Summary
    A valuable archaeological and historical resource is contained within recently declassified aerial imagery from the UK’s Joint Aerial Reconnaissance Intelligence Centre (JARIC), now held at the National Collection of Aerial Photography in Edinburgh (NCAP). A project at UCL-Qatar has begun to exploit this to acquire and research the historical aerial photography of Qatar and the wider Gulf region. The JARIC collection, comprising perhaps as many as 25 million photographs from British intelligence sources in the twentieth century, mainly from Royal Air Force reconnaissance missions, is known to include large quantities of aerial photography from the Gulf that have never been seen outside intelligence circles, dating from 1939 to 1989. This paper will demonstrate how others may gain access to this valuable resource, not only for the Gulf but for the entire MENA (Middle East and North Africa) region. We will explore the research value of these resources and demonstrate how they enrich our understanding of the area. The archive is likely to be of equal value to archaeologists and historians of other regions.

Intelligence Transparency– But For What?

The new National Intelligence Strategy released last week by DNI Dan Coats affirms transparency as a value and as a strategic priority for U.S. intelligence.

The declared purpose of intelligence transparency is to raise public esteem for intelligence and to engender public trust. But because the policy is framed primarily as a public relations effort, the resulting transparency is limited unnecessarily.

“Through transparency we will strengthen America’s faith that the Intelligence Community seeks the truth, and speaks the truth,” DNI Coats said.

“This will be our hallmark, and I cannot stress this enough — this is not a limitation on us. This will make us stronger. It earns trust. It builds faith, and boosts our credibility around the world for our mission. It is the right thing to do,” he said on January 22.

The latest iteration of intelligence transparency was strongly shaped by the immediate post-Snowden environment, and it began, under then-DNI James Clapper, as an effort to restore public confidence which had been shaken by his disclosures. The legitimacy and legality of U.S. intelligence surveillance activities had been called into question, and the scope of domestic intelligence collection was revealed to a surprising new extent. In response, the intelligence transparency initiative therefore emphasized disclosure of IC legal authorities, oversight mechanisms, and the nature of IC electronic surveillance programs.

(Similar transparency has not extended to covert action, overhead reconnaissance, procurement, contracting, or numerous other areas. Declassification has been highlighted but has been preferentially focused on topics that are historically and substantively remote, such as the 1968 Tet Offensive.)

Has such transparency actually led to increased public trust in intelligence?

Data on the subject are sparse. It seems likely that most members of the public neither trust nor distrust intelligence agencies, being more concerned with other matters. However, increased transparency concerning surveillance practices has helped to focus current debate on real issues and pending policy questions rather than on more speculative topics.  There is a qualitative difference between the precision of the public debate over Section 215 surveillance authority and the foggy controversy over the reputed “Echelon” surveillance program of the 1990s.

Public trust may be conditional on some degree of transparency, and undue secrecy may engender suspicion. But it is doubtful that transparency by itself would generate increased trust. It might just as easily lead to heightened opposition.

Public trust is more likely to be produced as a byproduct of agency competence and integrity. Intelligence community leaders gained credibility and respect this week by publicly differing with the White House on North Korean denuclearization (assessed as “unlikely” to be completed), Iran’s nuclear weapons program (which is “not currently undertaking” steps needed to produce a nuclear device), among other divergent views expressed at the annual threat hearing held by the Senate Intelligence Committee. (The differences elicited an angry outburst from the President.)

In any case, building public trust is not the only possible rationale for intelligence transparency. Increasing public literacy in national security matters and enriching public debate offer an alternative, and more comprehensive, goal for future intelligence transparency efforts.

At a time when even basic factual matters are in dispute, the intelligence community could perform a public service — something analogous to what the Congressional Research Service does on a different plane — by routinely adding substantive information and analysis to the public domain. CIA and other agencies are sitting on a wealth of unclassified, open source material (which is sometimes utilized by CRS itself) that could easily be shared with the public at marginal cost.

It is possible that some unclassified, open source materials might be deemed sensitive and would therefore be withheld, either because their disclosure would reveal a specific target of intelligence collection or because they provide the US government with “decision advantage” of some kind.

But even allowing for such withholding, a vast array of existing unclassified open source intelligence analysis should be releasable. A grab bag of open source intelligence products that were obtained through unauthorized disclosures a decade ago illustrates the kind of materials that could be released on a near-daily basis.

“Whenever possible, we will share with the public the insight we offer to policymakers,” DNI Coats said last week. For now, there remains a great deal of useful but undisclosed intelligence material that should be possible to share with the public.

CIA Historical Review Panel Put on Hiatus

The Historical Review Panel that advises the Central Intelligence Agency on declassification of historical intelligence records said this week that its planned December 2018 meeting was canceled by CIA, and that no future meetings were scheduled.

But CIA said yesterday that the Panel would be reconvened following some administrative changes.

“We have recently been informed that the Panel is being restructured and will not meet again until this has been done,” said the Panel of independent historians, chaired by Prof. Robert Jervis of Columbia University, in a January 14 statement published on H-DIPLO. “The reasons for this remain unclear to us, and no schedule for resumed meetings has been announced.”

Upon further investigation, it appears that changes may be made regarding composition of Panel membership, term limits, and similar issues but that the scope of the Panel’s activities will be unaffected. The reconstituted Panel is expected to meet again sometime this year.

“The CIA is committed to the public release of historical information, and the Historical Review Panel remains an important and valuable resource for this endeavor,” said CIA spokesperson Sara Lichterman.

The Panel is purely advisory and does not make or execute policy. But it serves to represent the concerns of historians regarding declassification of intelligence records. It has helped to prioritize records of particular interest for declassification and to facilitate production of intelligence records for the Foreign Relations of the United States series. And perhaps most important, through its periodic meetings with the CIA Director, it has helped to elevate historians’ concerns about intelligence declassification within the Agency.

Israel’s Official Map Replaces Military Bases with Fake Farms and Deserts

Somewhat unexpectedly, a blog post that I wrote last week caught fire internationally. On Monday, I reported that Yandex Maps—Russia’s equivalent to Google Maps—had inadvertently revealed over 300 military and political facilities in Turkey and Israel by attempting to blur them out.

In a strange turn of events, the fallout from that story has actually produced a whole new one. 

After the story blew up, Yandex pointed out that its efforts to obscure these sites are consistent with its requirement to comply with local regulations. Yandex’s statement also notes that “our mapping product in Israel conforms to the national public map published by the government of Israel as it pertains to the blurring of military assets and locations.”

The “national public map” to which Yandex refers is the official online map of Israel which is maintained by the Israeli Mapping Centre (מרכז למיפוי ישראל) within the Israeli government. Since Yandex claims to take its cue from this map, I wondered whether that meant that the Israeli government was also selectively obscuring sites on its national map.

I wasn’t wrong. In fact, the Israeli government goes well beyond just blurring things out. They’re actually deleting entire facilities from the map—and quite messily, at that. Usually, these sites are replaced with patches of fake farmland or desert, but sometimes they’re simply painted over with white or black splotches.

Some of the more obvious examples of Israeli censorship include nuclear facilities:

  • Tel-Nof Air Base is just down the road from a suspected missile storage site, both of which have been painted over with identical patches of farmland.

 

 

  • Palmachim Air Base doubles as a test launch site for Jericho missiles and is collocated with the Soreq Nuclear Research Center, which is rumoured to be responsible for nuclear weapons research and design. The entire area has been replaced with a fake desert.

 

 

  • The Haifa Naval Base includes pens for submarines that are rumoured to be nuclear-capable, and is entirely blacked out on the official map.

 

 

  • The Negev Nuclear Research Center at Dimona is responsible for plutonium and tritium production for Israel’s nuclear weapons program, and has been entirely whited out on the official map.

 

 

  • Hatzerim Air Base has no known connection to Israel’s nuclear weapons program; however, the sloppy method that was used to mask its existence (by basically just copy-pasting a highly-distinctive and differently-coloured patch of desert to an area only five kilometres away) was too good to leave out.

 

 

Given that all of these locations are easily visible through Google Earth and other mapping platforms, Israel’s official map is a prime example of needless censorship. But Israel isn’t the only one guilty of silly secrecy: South Korea’s Naver Maps regularly paints over sensitive sites with fake mountains or digital trees, and in a particularly egregious case, the Belgian Ministry of Defense is actually suing Google for not complying with its requests to blur out its military facilities.

 

 

Before the proliferation of high-resolution satellite imagery, obscuring aerial photos of military facilities was certainly an effective method for states to safeguard their sensitive data. However, now that anyone with an internet connection can freely access these images, it simply makes no sense to persist with these unnecessary censorship practices–especially since these methods can often backfire and draw attention to the exact sites that they’re supposed to be hiding.

Case studies like Yandex and Strava—in which the locations of secret military facilities were revealed through the publication of fitness heat-maps—should prompt governments to recognize that their data is becoming increasingly accessible through open-source methods. Correspondingly, they should take the relevant steps to secure information that is absolutely critical to national security, and be much more publicly transparent with information that is not—hopefully doing away with needless censorship in the process.

New Pre-Publication Review Policy is Coming

Two years ago, the House Intelligence Committee asked the Director of National Intelligence to improve the government’s controversial policy on reviewing books, articles and speeches by current and former intelligence employees prior to their publication, so as to make the process more uniform, timely and fair.

That has still not been accomplished, but a new policy is on the way, according to the Office of the Director of National Intelligence.

“An IC-wide policy on prepublication review is being formulated and is forthcoming,” wrote ODNI FOIA Chief Sally A. Nicholson on November 20. “However, it is not completed as of today’s date.”

In 2016, the House Intelligence Committee reported that it is “aware of the perception that the pre-publication review process can be unfair, untimely, and unduly onerous and that these burdens may be at least partially responsible for some individuals ‘opting out’ of the mandatory review process. The Committee further understands that IC agencies’ pre-publication review mechanisms vary, and that there is no binding, IC-wide guidance on the subject.”

The Committee specified its own view of what a new, improved policy should entail, including a clear statement of the scope of the policy, with requirements for timely responses and procedures for appealing adverse decisions.

“The Committee believes that all IC personnel must be made aware of pre-publication review requirements and that the review process must yield timely, reasoned, and impartial decisions that are subject to appeal. The Committee also believes that efficiencies can be identified by limiting the information subject to pre-publication review, to the fullest extent possible, to only those materials that might reasonably contain or be derived from classified information obtained during the course of an individual’s association with the IC. In short, the pre-publication review process should be improved to better incentivize compliance and to deter personnel from violating their commitments,” the Committee wrote in its report on the FY 2017 intelligence authorization act.

Until the new IC-wide policy is promulgated, current and former ODNI employees must comply with ODNI’s existing pre-publication review policy, last revised in 2014.

“Correct unclassified sourcing is critical in executing pre-publication review,” that 2014 policy states. “ODNI personnel must not use sourcing that comes from known leaks, or unauthorized disclosures of sensitive information. The use of such information in a publication can confirm the validity of an unauthorized disclosure and cause further harm to national security. ODNI personnel are not authorized to use anonymous sourcing.”

Other intelligence agency personnel are subject to the rules issued by their respective agencies.

DNI Orders Security Clearance “Reciprocity”

One of the most vexatious aspects of the system of granting security clearances for access to classified information has been the reluctance of some government agencies to recognize the validity of clearances approved by other agencies, and to require new investigations and adjudications of previously cleared personnel.

A new directive from the Director of National Intelligence seeks to finally resolve this longstanding problem by mandating “reciprocity,” or mutual acceptance of security clearances issued by other agencies. See Reciprocity of Background Investigations and National Security Adjudications, Security Executive Agent Directive 7, November 9, 2018.

With certain exceptions, “Agencies shall accept national security eligibility adjudications conducted by an authorized adjudicative agency at the same or higher level,” DNI Daniel R. Coats wrote.

“Background investigations and national security eligibility adjudications, conducted by an authorized investigative agency or authorized adjudicative agency, respectively, shall be reciprocally accepted for all covered individuals,” again with certain exceptions.

In most cases, cleared personnel would not be required to fill out a new security clearance questionnaire or to undergo a new background investigation in order for their clearances to be recognized and accepted by another agency.

(Reciprocity refers to mutual recognition by agencies of an individual’s eligibility for access to classified information. Whether the individual also has the requisite “need to know” the information requires a separate determination.)

Security clearance reciprocity is an elusive policy goal that has been pursued since the Clinton Administration, if not longer.

A 2004 study by the Defense Personnel Research Center investigated the failure to fully implement reciprocity at that time and attributed it to issues of “turf and trust.”

“Virtually all respondents agreed that beneath the lack of complete reciprocity there is a certain lack of trust based on fear.” See Security Clearance Reciprocity: A Progress Report, PERSEREC, April 2004.

A new bill introduced by Sen. Mark Warner (D-VA) would require reporting on the number of individuals whose clearances take more than 2 weeks to be reciprocally recognized after they move to a new agency or department. See “Vice Chairman Warner Introduces Legislation to Revamp Security Clearance Process,” news release, December 6.