Intelligence Support to Diplomatic Facilities Abroad

The role of U.S. intelligence agencies in helping to protect U.S. diplomatic facilities and personnel abroad is highlighted in a recently revised Intelligence Community Directive.

The directive does not specifically cite the reported sonic attacks on the U.S. Embassy in Havana, but those mysterious events seem to fall within its scope, which include implementing Technical Surveillance Countermeasures (TSCM) and TEMPEST programs (shielding electromagnetic emissions and preventing penetrations).

See Counterintelligence and Security Support to U.S. Diplomatic Facilities Abroad, Intelligence Community Directive 707, amended August 21, 2018.

Army Needs Intelligence to Face “Peer Threats”

U.S. Army operations increasingly depend on intelligence to help confront adversaries who are themselves highly competent, the Army said this week in a newly updated publication on military intelligence.

Future operations “will occur in complex operational environments against capable peer threats, who most likely will start from positions of relative advantage. U.S. forces will require effective intelligence to prevail during these operations.” See Intelligence, Army Doctrine Publication 2-0, September 4, 2018.

The quality of U.S. military intelligence is not something that can be taken for granted, the Army document said.

“Despite a thorough understanding of intelligence fundamentals and a proficient staff, an effective intelligence effort is not assured. Large-scale combat operations are characterized by complexity, chaos, fear, violence, fatigue, and uncertainty. The fluid and chaotic nature of large-scale combat operations causes the greatest degree of fog, friction, and stress on the intelligence warfighting function,” the documentsaid.

“Intelligence is never perfect, information collection is never easy, and a single collection capability is never persistent and accurate enough to provide all of the answers.”

The Army document provides a conceptual framework for integrating intelligence into Army operations. It updates a prior version from 2012 which did not admit the existence of “peer” adversaries and did not mention the word “cyberspace.”

Some other recent U.S. military doctrine publications include the following.

Department of Defense Dictionary of Military and Associated Terms, updated August 2018

Foreign Internal Defense, Joint Publication 3-22, August 17, 2018

Integrated DoD Intelligence Priorities, Directive-Type Memorandum (DTM) 15-004, September 3, 2015, Incorporating Change 2, Effective September 4, 2018

Aircraft and ICBM Nuclear Operations, Air Force Instruction 13-520, 22 August 2018

Implementation of, and Compliance with, Arms Control Agreements, SecNav Instruction 5710.23D, August 28, 2018

Bid to Rectify the “Black Budget” Fails

The so-called “black” budget — which refers to classified government spending on military procurement, operations, and intelligence — is not merely secret. It is actually deceptive and misleading, since it produces a distortion in the amount and the presentation of the published budget.

The amount of money that is purportedly appropriated for the US Air Force, for example, does not all go to the Air Force, the Senate Armed Services Committee recently observed.

“Each year, a significant portion of the Air Force budget contains funds that are passed on to, and managed by, other organizations within the Department of Defense. This portion of the budget, called ‘pass-through,’ cannot be altered or managed by the Air Force. It resides within the Air Force budget for the purposes of the President’s budget request and apportionment, but is then transferred out of the Service’s control,” according to a Senate report on the 2019 defense bill (S.Rept. 115-262).

Although the report does not say so, the Air Force budget may also include pass-through funding for the Central Intelligence Agency, which of course is not even part of the Department of Defense, as well as for other non-Air Force intelligence functions.

“In fiscal year 2018, the Air Force pass-through budget amounted to approximately $22.0 billion, or just less than half of the total Air Force procurement budget. The committee believes that the current Air Force pass-through budgeting process provides a misleading picture of the Air Force’s actual investment budget.”

The Senate therefore recommended that such “pass-through” funds be removed from the Air Force budget and included in Defense-wide appropriations.

But in the House-Senate conference on the FY2019 defense bill, this move was blocked and so the deceptive status quo will continue to prevail.

Earlier this month, the Director of National Intelligence and the Pentagon Comptroller wrote to Congress to present their views on the Senate provision. A copy of their letter, which presumably objected to the proposed move, has been requested but not yet released.

The logic of the Senate proposal was explained by Mackenzie Eaglen of the American Enterprise Institute in “Time to Get the Black Out of the Blue,” Real Clear Defense, June 13.

SSCI Requires Strategy for Countering Russia

In its new report on the FY 18-19 Intelligence Authorization bill, published today, the Senate Select Committee on Intelligence would require the Director of National Intelligence “to develop a whole-of-government strategy for countering Russian cyber threats against United States electoral systems and processes.”

As if to underscore the gulf in the perception of the Russian threat that separates President Trump and the US intelligence community, the Senate Intelligence Committee comes down firmly on the side of the latter, taking “Russian efforts to interfere with the 2016 United States presidential election” as a given and an established fact.

The Senate report describes numerous other provisions of interest on election security, classification policy, cybersecurity, and more.

The House Intelligence Committee published its report on the pending FY18-19 intelligence authorization bill earlier this month.

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.

Intelligence Transparency to Build Trust: A Postscript

Increasing transparency in intelligence may help to build public trust, as Director of National Intelligence Dan Coats said last month. But not all acts of transparency are likely to have that effect to the same degree, if at all.

Some of the most powerful trust-building actions, we suggested, involve “admissions against interest,” or voluntary acknowledgements of error, inadequacy or wrong-doing.

We should have noted that the Intelligence Community has already adopted this approach up to a point in connection with surveillance activity under Section 702 of the Foreign Intelligence Surveillance Act.

For example, a number of classified reports on (non-)compliance with Section 702 have been declassified and published by the Office of the Director of National Intelligence in lightly redacted form.

These and other official disclosures provided sufficient detail, for example, to enable preparation of “A History of FISA Section 702 Compliance Violations” by the Open Technology Institute at the New America Foundation.

Compliance issues are also addressed in opinions of the Foreign Intelligence Surveillance Court, many of which have now been partially declassified and published. An April 2017 FISC opinion posted by ODNI concerned a case of “significant non-compliance with the NSA’s minimization procedures.”

This uncommon transparency is notably focused on Section 702 which, important as it is, is only a slice of Intelligence Community activity. And some of the disclosures are not entirely voluntary as they follow from Freedom of Information Act litigation. (The IC Inspector General also intermittently publishes summaries of its own investigative work in semiannual reports.)

Nevertheless, the disclosures provide a proof of principle, and suggest how more could be done in other areas. Did these “admissions against interest” also build public trust? There are no known data to support such a conclusion. But at a minimum, they did serve to focus attention on actual, not speculative problem areas.

The revision and reissuance of Intelligence Community Directive 107 should help to institutionalize and expand the role of transparency in supporting intelligence oversight and public accountability.

DNI Coats said yesterday that he would “declassify as much as possible” concerning the controversial professional background of Gina Haspel, who has been nominated to be CIA Director.

DNI Says Build Trust in Intelligence Through Transparency

Director of National Intelligence Dan Coats recently revised a 2012 Intelligence Community Directive (ICD) on “Civil Liberties and Privacy” to address transparency policy, and reissued it as “Civil Liberties, Privacy, and Transparency.”

The revised directive ICD 107 states that “the DNI is committed to protecting civil liberties and privacy and promoting greater public transparency, consistent with United States values and founding principles as a democratic society.”

ICD 107 now mandates “external engagements” with the public; it calls for use of “new technologies to make intelligence information. . . accessible to the public. . . with sufficient clarity and context so that it is readily understandable”; and it directs that IC agencies shall describe to the public “why certain information can and cannot be released.”

In a March 22 memorandum to agencies announcing the revised directive, DNI Coats said that “With the reissuance of ICD 107, we have firmly established transparency as a foundational element of securing public trust in our endeavors, alongside the protection of civil liberties and privacy.”

As indicators of recent progress in transparency, the DNI cited the relaunch of the Intelligence.gov website that provides information about IC agencies; a new historical declassification program that will review records concerning the 1968 Tet Offensive; and new details regarding oversight and use of Section 702 of the Foreign Intelligence Surveillance Act.

But while these are all commendable steps, they do not seem well calculated to achieve the goal of “securing public trust.”

Building trust requires more than public relations or even declassification of historical documents. Remarkably, dozens of breakthroughs in transparency during the Obama Administration did little to generate trust and were largely ignored and unappreciated.

Trust building depends on a willingness to be held accountable, and on responsiveness (not just unilateral gestures) to overseers and the public.

Transparency for trust-building should therefore stress what lawyers call “admissions against interest,” or disclosures that could risk placing the agency in an unfavorable light, at least initially, but that would build credibility over time. Such disclosures might include regular release of compliance reports regarding suspected deviations from law or policy, investigative reports or summaries from intelligence agency Inspectors General, and the like.

Public trust could also be strengthened positively by responsively adding value to public discourse. The intelligence community could help foster a constructive relationship with the public by routine publication of open source intelligence products, and by setting up an orderly process for responding to substantial public interest in topics of current intelligence importance or controversy (beyond Section 702).

A panel discussion on “Building and Sustaining Democratic Legitimacy” in intelligence was held last week as part of a symposium organized by the Intelligence Studies Project at the University of Texas at Austin.

Update: Some follow-on thoughts about steps that the Intelligence Community has already taken to increase transparency are here.

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.

Selective Declassification and the Nunes Memo

If Republicans on the House Intelligence Committee want to publicly release a classified memo that they prepared on alleged misconduct in the FBI, what could be wrong with that?

Quite a lot, actually. Even if the risks of disclosing classified information in this case are small (a point that is disputed), the selective disclosure of isolated claims is bound to produce a distorted view of events. The suppression of dissenting views held by Democratic members of the Committee only aggravates the distortion.

“Deliberately misleading by selectively declassifying is an established technique, and it is one that is both shady and dangerous,” said Sen. Sheldon Whitehouse (D-RI) on the Senate floor on Tuesday.

“This business of selectively cherry-picking things out of classified information to spread a false narrative has a very unpleasant echo for me because this is what the Bush administration was up to when it was trying to defend the torture program. They selectively declassified, for instance, that Abu Zubaydah had been the subject of what they called their enhanced interrogation techniques program and that he had produced important, actionable intelligence. What they did not declassify was that all the actionable intelligence he gave them had been provided before they started on the torture techniques.”

Sen. Whitehouse said that the practice resembled Soviet and Russian information warfare activities that were used “to poison the factual environment.”

“You start with the selective release of classified material that the public can’t get behind because the rest is classified, the false narrative that the ranking member has pointed out that that creates, the partisan and peculiar process for getting there, the ignoring of warnings from their own national security officials about how bad this is, the convenient whipping up of all of this in far-right media at the same time, the amplification of that actually by Russian bots and other sources, and the fact that this is all pointed, not coincidentally, at the agency and officials who are engaged in investigating the Trump White House and the Trump campaign, it is so appallingly obvious what the game is that is being played here.”

Meanwhile, Sen. Whitehouse said, Congress has taken no action to protect against foreign interference in U.S. elections.

“We are warned that a hostile foreign power is going to attack our 2018 election. Where is the legislation to defend against that? Where is the markup of the legislation? Where is the effort to do what needs to be done to defend our democracy? Here we are just a few months out from the election. We are 9 months out. Do I have the math right? It is 9 months between here and there. Nothing.”

Yesterday, the FBI put out a brief statement noting that “we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.”

But as far as is known, no similar concerns have been expressed by intelligence community leaders.

“It is stunning to me,” Sen. Whitehouse said, “that we have heard nothing–at least I have heard nothing– […] from our Director of National Intelligence, DNI Coats, and I have heard nothing from CIA Director Pompeo for–how long it has been?”

Yesterday, coincidentally, the Office of the Director of National Intelligence announced that DNI Coats had directed the declassification of classified intelligence records concerning the Tet Offensive launched by North Vietnamese forces in January 1968.

An ODNI posting said that it is part of a “New Transparency Effort To Share Historical Information of Current Relevance.”

Any declassification of historical information is welcome. But for all of its historical gravity, the Tet Offensive could hardly have less “current relevance.”