US Air Force Limits Media Access, Interviews

Updated below

The US Air Force is suspending media embeds, base visits and interviews “until further notice” and it “will temporarily limit the number and type of public engagements” by public affairs officers and others while they are retrained to protect sensitive information, according to guidance obtained by Defense News.

“In line with the new National Defense Strategy, the Air Force must hone its culture of engagement to include a heightened focus on practicing sound operational security,” the new guidance memo said.

“As we engage the public, we must avoid giving insights to our adversaries which could erode our military advantage. We must now adapt to the reemergence of great power competition and the reality that our adversaries are learning from what we say in public.”

Notably, the new Air Force guidance does not distinguish between classified and unclassified information. Nor does it define the scope of “sensitive operational information” which must be protected.

The March 1, 2018 memo was reported (and posted) in “Air Force orders freeze on public outreach” by Valerie Insinna, David B. Larter, and Aaron Mehta, Defense News, March 12.

As it happens, a counter-argument in favor of enhanced Air Force release of information was made just last week by Air Force Secretary Heather Wilson.

“The Air Force has an obligation to communicate with the American public, including Airmen and families, and it is in the national interest to communicate with the international public,” the Secretary stated in a March 8 directive.

“Through the responsive release of accurate information and imagery to domestic and international audiences, public affairs puts operational actions in context, informs perceptions about Air Force operations, helps undermine adversarial propaganda efforts and contributes to the achievement of national, strategic and operational objectives.”

“The Air Force shall respond to requests for releasable information and material. To maintain the service’s credibility, commanders shall ensure a timely and responsive flow of such information,” she wrote.

But by the same token, unwarranted delays or interruptions in the public flow of Air Force information threaten to undermine the service’s credibility. See Public Affairs Management, Air Force Policy Directive 35-1, March 8, 2018.

Update: “It’s not a freeze. We continue to do many press engagements daily,” said [Air Force] Brig. Gen. Ed Thomas. We are fully committed — and passionate about — our duty and obligation to communicate to the American people.” See The Air Force’s PR Fiasco: How a plan to tighten security backfired, Washington Examiner, March 14, 2018.

Military Operations Face Growing Transparency

Soldiers and Marines fighting in populated urban environments have to assume that their actions are being closely monitored by the public, according to new military doctrine published last week. They need to have “an expectation of observation.”

Increased transparency surrounding military operations in populated areas must be anticipated and factored into operational plans, the new doctrine instructs.

“Soldiers/Marines are likely to have their activities recorded in real time and shared instantly both locally and globally. In sum, friendly forces must have an expectation of observation for many of their activities and must employ information operations to deal with this reality effectively.”

This can be a matter of some urgency considering that “Under media scrutiny, the action of one Soldier/Marine has significant strategic implications.”

See Urban Operations, ATP 3-06, US Army, US Marine Corps, December 7, 2017.

“Currently more than 50 percent of the world population lives in urban areas and is likely to increase to 70 percent by 2050, making military operations in cities both inevitable and the norm,” the document states.

Inevitable or not, urban military combat presents a variety of challenges.

“Urban operations often reduce the relative advantage of technological superiority, weapons ranges, and firepower.”

“Moreover, because there is risk of high civilian casualties, commanders are generally required to protect civilians, render aid, and minimize damage to infrastructure. These requirements can reduce resources available to defeat the enemy, often creating difficult choices for the commander.”

“Military operations that devastate large amounts of infrastructure may result in more civilian casualties than directly caused by combat itself. Excessive U.S. destruction of infrastructure that causes widespread suffering amongst people may turn initially neutral or positive sentiment toward U.S. forces into hostility that can rapidly mobilize populations and change the nature of the military problem.”

“Destroying an urban area to save it is not an option for commanders.”

Was Obama Administration the Most Transparent or the Least?

“After early promises to be the most transparent administration in history, the Obama administration turned out to be one of the most secretive,” wrote Washington Post media columnist Margaret Sullivan last year.

Speaking at Harvard’s Shorenstein Center last month, former ACLU litigator Jameel Jaffer didn’t go quite that far. He acknowledged that Obama had taken some small steps towards greater transparency, such as making White House visitor logs available and declassifying the Office of Legal Counsel memos on intelligence interrogation (the “torture memos”).

But overall, Obama was a disappointment, said Jaffer, a respected figure who now directs the Knight First Amendment Institute at Columbia University.

“Few people today–and certainly very few transparency advocates–believe that President Obama kept his promise,” he said.  See Government Secrecy in the Age of Information Overload, October 17, 2017.

That seems wrong.

A fair reading of the record shows that in dozens of areas of national security secrecy, the Obama Administration broke down longstanding barriers to public access and opened up previously inaccessible records of enormous importance and value. Some examples:

*    In 2010, the Obama Administration declassified the current size of the U.S. nuclear weapons arsenal for the first time ever. Even during the heyday of the Energy Department Openness Initiative of the 1990s, only historical stockpile data from 30 years earlier was released.

*    The Obama Administration was also the first ever to publish the amount of the intelligence budget request for the following year. This information had been the subject of FOIA litigation in the Clinton Administration but without success. Remarkably, there is no statutory requirement to publish the budget request for the Military Intelligence Program. But the Obama Administration did so anyway.

*     A decade ago, the CIA had claimed in court that the President’s Daily Brief (PDB) was itself an “intelligence method” and therefore categorically exempt from disclosure. Obama rejected that view and ordered that no information be exempt from declassification “based solely on the type of document or record in which it is found.” Thousands of historical PDBs were declassified as a result.

*    Prior to the Obama Administration, one had to have “sources” simply to find out the names of the judges who sat on the Foreign Intelligence Surveillance Court. Now the Court has its own website and it has never been more open to third-party oversight or participation.

*    The Obama Administration established a National Declassification Center to facilitate and streamline declassification. Amazingly, the Center undertook the successful declassification of a large collection of records from the US Embassy in Indonesia in the 1960s last year in response to a request from an individual member of the public.

These are all discrete policy actions that may be of interest to some people and not to others. Not everyone cares about nuclear weapons or intelligence or Indonesia or other such topics. But under Obama there was also a systemic contraction in the whole apparatus of government secrecy. Thus:

*    In 2014, the Obama Administration achieved the lowest number of “original classification decisions” (or newly-generated secrets) that had ever been reported by the Information Security Oversight Office. In 2016, the reported number of new secrets dropped lower still.

*    Not coincidentally, in 2015, the Obama Administration reduced the number of “original classification authorities” — i.e. officials who are authorized to create new secrets — to the lowest number ever reported.

*    The Obama Administration made a policy decision to shrink the size of the security-cleared population, both to reduce vulnerabilities and to conserve resources. The number of persons holding security clearances for access to classified information dropped accordingly from around 5.1 million in 2013 to 4.2 million in 2015.

Is all of that sufficient to justify a claim that the Obama Administration was “the most transparent in history”? Not necessarily. (And not only because “transparency” means different things to different people.)

One would also have to weigh the Administration’s failings, such as its (mis)handling of the Senate Intelligence Committee report on enhanced interrogation practices, among other unhappy episodes. And then one would then have to compare the composite record to that of other Administrations. But it is far from obvious that any other Administration has a stronger claim than Obama’s to being named “most transparent,” and neither Jaffer nor Sullivan has proposed one.

It is beyond argument that Obama established new benchmarks for disclosure of many types of national security information that had previously been withheld, and that his Administration imposed new constraints on the creation of classified information.

Ignoring or dismissing the Obama record of disclosure makes it impossible to inquire how such disclosures happened, and how they could be replicated and extended. Cynicism is a poor foundation for strategy.

Against Naive Transparency

“Sunlight is said to be the best of disinfectants,” Louis Brandeis famously wrote a century ago in praise of publicity.

But in fact there are many better disinfectants, such as iodine and alcohol. And in excess, sunlight itself can induce sunburn or even skin cancer.

Likewise, by analogy, “transparency” as a political virtue is rife with questionable or erroneous assumptions, writes law professor Mark Fenster in his new book The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press, 2017).

The ideal of a fully visible state subject to rational public oversight and control has never been achieved and is not a realistic objective, according to Fenster. And it’s not for lack of trying.

“The distance between ideal and reality is not solely the consequence of a failure of public will, nor is it a reflection of government officials’ lack of moral character. Nor is it a failure to develop, calibrate, and roll out the right set of laws, institutions, and technology.” The problem is more fundamental, and may be intractable.

The naive model of transparency in which government discloses itself to an attentive public, thereby enhancing policy deliberation and government accountability, corresponds to reality loosely at best, writes Fenster.

To begin with, government “documents” are never a full representation of the reality of official decision-making. They can never be more than a semantic slice of the whole. Disclosure of such documents is not a neutral process either. It may mislead by its selectivity, or it may overwhelm by its abundance. And the “public” that is the intended audience for transparency may be, and often is, distracted, indifferent, and disengaged.

It follows that more “Disclosure will not necessarily transform the United States or any Western democracy into a model of popular deliberation, participatory decision making, and perfect governance. Western governments and societies are too complex and decentralized, their publics too dispersed, and their information environments too saturated for transparency, by itself, to have significant transformative potential.” (For similar reasons, he finds, massive unauthorized disclosures of official information consistently do less damage than feared.)

“Secrecy is one of many problems that affect government performance, but it occupies too much of our political imagination,” Fenster concludes in this thoughtful and challenging book.

But even if many acts of transparency are indeed futile or inconsequential, that does not mean that all of them are.

Timely disclosure of environmental contamination saves lives. Exposure of conflicts of interests undoubtedly deters and mitigates corruption. Open government laws enable and facilitate public participation in the policy process to a remarkable extent. In Latin America, more than 100 trials of suspected war criminals have been carried out in recent years using evidence derived from declassified U.S. government documents and Freedom of Information Act requests, Tom Blanton of the National Security Archive pointed out lately. Those are just a few of the real-world consequences of well-conceived transparency measures.

A skeptical view of transparency that is cognizant of its theoretical and practical limits “does not require abandoning a commitment to open government and democracy,” Fenster affirms. On the contrary, well-founded skepticism may provide a basis for improving existing transparency practices by focusing them on what is most valuable and most achievable.

A Bumpy Road for Controlled Unclassified Information

The effort to establish a uniform policy for Controlled Unclassified Information (CUI) is meeting opposition from some executive branch agencies who see it as unnecessary and unwelcome.

CUI refers to information that is unclassified but that requires protection for reasons other than national security– such as privacy, proprietary concerns, law enforcement sensitivity, and so on. In past years, more than 100 separate and sometimes conflicting policies for such information were put in place. The CUI program, established by President Obama’s executive order 13556 in 2010, was intended to simplify, standardize and streamline that profusion of security policies for unclassified information.

Some agencies, like Veterans Affairs and the Social Security Administration, are moving forward to adopt the new CUI policy.

Others, however, are not.

Earlier this month, officials from several large agencies — including CIA, DOJ, DHS and DOD — raised a whole series of objections to the CUI program in a letter to the Information Security Oversight Office (ISOO).

The officials contended in the undisclosed letter that there are several unresolved issues that must be addressed before CUI implementation can go forward. These are said to include inadequately defined governance of the program, financial costs thought to be in the billions of dollars, gaps in coverage affecting certain types of information, and commingling of CUI and classified information that will make proper marking of documents excessively long and complicated.

But ISOO director Mark Bradley said that these issues had either already been addressed or could be resolved. He said ISOO would prepare a formal response to the agency complaints.

Another point of contention is the impact of the CUI policy on government transparency and whether it will enhance or impede public access to unclassified information.

One of the original objectives of the CUI program was to reduce controls on unclassified information by limiting their use only to those instances where they were required by law, regulation or agency-specific policy. Arbitrary or improvised prohibitions on disclosure (such as the open-ended “for official use only”) would be not be authorized.

But in a privately circulated white paper, former CIA classification official Harry Cooper said that the CUI approach would lead to more government secrecy, not less.

Cooper noted that there were now some 129 authorized categories and subcategories that could be used to withhold information as CUI based on more than 400 laws and regulations. (Agencies had originally submitted more than 2,200 proposed CUI categories and subcategories.) As recently as September 25, a new CUI subcategory was added for “Intelligence-Internal Data” to cover various types of unclassified CIA information that is “not intended to be disseminated beyond CIA channels” including names, titles, salaries, and more.

“The full implementation of CUI will likely cause an expansion of the use of [FOIA exemption] (b)(3) and as a result information that would have been released prior to CUI will now be protected from release,” Cooper wrote. “Without CUI there is no marking to identify specific laws blocking access and government reviewers often missed those obscure laws that could potentially block access.” See Controlled Unclassified Information: Government Bureaucracy Out of Control by Harry Cooper, July 2017.

ISOO director Mark Bradley disputed Cooper’s critique. He said that the CUI categories and subcategories are not equivalent to FOIA exemptions. And the CUI implementing directive makes it clear, he said, that CUI markings are not to be used as a basis for rendering FOIA decisions.

Bradley said that the CUI program should result in an increase in transparency by excluding unauthorized controls on information and by exposing the CUI decision-making process to public scrutiny. He noted that some agencies had urged that the CUI Registry — which lists all of the CUI categories and subcategories — should not be a public document. But that view was rejected by ISOO, especially since the contents of the Registry refer to public laws and regulations.

CUI has roots in the Obama Administration’s executive order 13556, and even further back in a 2008 memorandum from President Bush. So it is conceivable that the CUI policy could be modified or abolished by the Trump Administration.

But in a September 8 memo to agency heads on unauthorized disclosures, national security advisor H.R. McMaster referred to “the importance of protecting classified and controlled unclassified information” — which was understood as a White House endorsement of the CUI construct.

In the meantime, CUI is entering the implementation phase, ISOO director Bradley said. “It’s not going to go away. It’s not going to be reversed.”

It is entirely possible that there will be unintended consequences from CUI implementation, he allowed in an interview last week, “but we will deal with them. As we find problems, we will fine-tune and adjust.”

A Guide to Parliamentary Information Online

Parliaments around the world have moved online, placing legislative information and other resources on public-facing websites. Fifty countries’ parliamentary websites — of differing degrees of depth and sophistication — were surveyed in a new publication from the Law Library of Congress.

“While the information on the parliamentary websites is primarily in the national language of the particular country, around forty of the individual websites surveyed were found to provide at least limited information in one or more other languages,” the Law Library report said.

“All of the parliamentary websites included in the survey have at least basic browse tools that allow users to view legislation in a list format, and that may allow for viewing in, for example, date or title order.”

“Around thirty-nine of the individual websites surveyed provide users with some form of tracking or alert function to receive updates on certain documents (including proposed legislation), parliamentary news, committee activities, or other aspects of the website.”

Unlike the United States Congress, which does not yet provide public access to most products of its Congressional Research Service, many of the websites portrayed in the new report do offer online access to their legislative research services. These include the Islamic Parliament Research Center of Iran, the Oireachtas Library & Research Service of Ireland, and the Knesset Research and Information Center of Israel, to name a few.

See Features of Parliamentary Websites in Selected Jurisdictions, Law Library of Congress, Global Legal Research Center, July 2017.

An Outgoing Wave of Disclosure

In the final days and weeks of the Obama Administration, intelligence officials took steps to promote increased transparency and made several noteworthy disclosures of intelligence policy records.

On January 9, DNI James Clapper signed a new version of Intelligence Community Directive 208, now titled “Maximizing the Utility of Analytic Products.” The revised directive notably incorporates new instructions to include transparency as a consideration in preparing intelligence analyses.

Thus, one way of “maximizing utility,” the directive said, is to “Demonstrate Transparency”:

“Analytic products should follow the Principles of Intelligence Transparency for the Intelligence Community, which are intended to facilitate IC decisions on making information publicly available in a manner that enhances public understanding of intelligence activities, while continuing to protect information, including sources and methods, when disclosure would harm national security. The degree to which transparency will be applied depends upon the nature and type of the analytic product.”

Interestingly, the revised directive was issued without any public notice or press release. Though unclassified and published online, it appears to be genuinely inner-directed rather than a mere public relations gesture.

*    *    *

The Central Intelligence Agency posted more than 12 million declassified pages (930,000 documents) from its CREST archive on the CIA website. The CREST (CIA Records Search Tool) database had previously been accessible only to those researchers who visited the National Archives in person.

By making the records broadly available online, their utility and the benefits of their declassification are multiplied many times over.

Release of the CREST database had been sought by researchers and advocates for many years. It was advocated internally by the CIA Historical Review Panel and the Panel’s chair, Prof. Robert Jervis. It was recently the subject of a Freedom of Information Act lawsuit by the Muckrock news site.

Joseph Lambert, CIA Director of Information Management, said that online access to CREST recently became possible only after technical limitations on the CIA website were “dissolved.” He said that the quality of the online search engine would not be inferior to that on the original CREST system.

One experienced researcher disputed that. Based on an initial survey, “I think it is safe to say that the level of functionality for searching is less than CREST,” the researcher said. From his perspective, “the losses are very significant.” A detailed comparison was not immediately available.

In any case, Mr. Lambert said that newly declassified records, and less redacted versions of previously redacted records, would be periodically added to the online collection.

*    *    *

Also last week, the CIA released updated guidelines for the collection, retention and dissemination of U.S. person information. The Agency also posted declassified documents concerning its interrogation program, released in response to FOIA litigation by the ACLU.

The Office of the Director of National Intelligence released an updated report on counterterrorism strikes outside of areas of active hostilities, a report on equal opportunity and diversity in the Intelligence Community, and a paper on the Domestic Approach to National Intelligence describing the organization of U.S. intelligence. ODNI published the remainder of the captured bin Laden documents that have been declassified, the third annual SIGINT progress report, and three semi-annual reports on compliance with Section 702 of the Foreign Intelligence Surveillance Act.

*    *    *

With the exception of records released in response to litigation or legislation, these moves and these disclosures were voluntary. They seem to represent a realization that increased transparency, though occasionally awkward in the short term, serves the long-term interests of U.S. intelligence.

“Today, whether you are a U.S. citizen or a non-U.S. citizen abroad, you now have more confidence about what the United States does and does not do with regard to signals intelligence collection because of steps this Administration has taken to provide an unprecedented level of transparency regarding these activities,” according to an Obama Administration report on privacy that was briefly published on the White House web site last week.

This posture of increased transparency, if not these specific disclosures, can be easily reversed or abandoned. But an infrastructure of disclosure has been established, along with a pattern of releases, that will generate expectations for the future and a certain momentum that may yet be sustained and developed.

Transparency Will Need a Reboot in the Trump Era

The future of transparency in the Trump Administration is uncertain. It will ultimately be determined in practice as the new Administration embarks on its programs, determines its priorities, appoints its personnel, engages with Congress and confronts the public.

On his first full day in office, President Obama famously pledged to conduct the most transparent Administration in history. Though it was imperfectly executed and suffered some reversals, I think that pledge was fulfilled to an impressive extent. More government information was made more easily available to more people than ever before. The reported volume of new national security secrets created in the past two years dropped to historically low levels. Whole categories of information that had previously been off-limits — the size of the U.S. nuclear weapons stockpile, the President’s Daily Brief, the size of the annual intelligence budget request, among others — were newly subject to declassification and disclosure during Obama’s tenure. If this was not the most transparent Administration in history, then which Administration was?

Donald Trump’s estimation of transparency already appears to be radically different. Although his Twitter persona during the campaign represented a degree of unfiltered candor that is almost alarming in a public official, it was unaccompanied by detailed policy proposals that might have informed the election. Trump’s refusal to release his tax returns as a presidential candidate was a startling repudiation of a longstanding norm of American governance. Worse, the fact that this refusal was not considered disqualifying by his supporters suggests that the norm is weaker than supposed. Far from being a given, the value of transparency itself may not be widely understood or shared by many Americans.

It’s not that Trump has promised transparency and failed to deliver. He has promised nothing of the kind. Hypocrisy on this point would actually be a step forward.

In what seems to be the first post-election reference to the FOIA by the Trump transition team, applicants for positions in the new Administration were advised that “One should assume that all of the information provided during this process is ultimately subject to public disclosure, if requested under the Freedom of Information Act.” (also noted by Russ Kick)

This is somewhat misleading, since various types of personal privacy information such as social security numbers would not be subject to FOIA. But perhaps it is a healthy sign that some awareness of the FOIA and its disclosure requirements is already present in the Trump camp.

DNI Establishes Intelligence Transparency Council

The notion of “intelligence transparency,” which once would have been considered an oxymoron, is instead becoming institutionalized with the establishment of a new Intelligence Transparency Council. Director of National Intelligence James Clapper signed the Charter of the new Council on April 5.

The Council includes representatives of each of the 17 Intelligence Community member agencies. Its role is to identify and promote appropriate areas for intelligence-related transparency and specifically to coordinate and oversee the implementation of the 2015 Principles of Intelligence Transparency.

For a start, the Council is supposed to “ensure that the public has information that clearly presents the mission, authorities, and oversight mechanism that direct and guide the IC.”

Beyond that, it will also “serve as the principal mechanism to identify possible new priority IC transparency topics to be selected by the DNI and IC leadership for implementation” and it will “establish interagency working groups to address specific transparency topics, as appropriate, in order to advance IC transparency efforts.”

As an inward-looking body that mostly meets behind closed doors, the Intelligence Transparency Council seems to be an internal forum for grappling with questions of increased disclosure, rather than an obvious public relations ploy. The Charter envisions votes and procedures for resolving disagreements, implying that the Council could serve a decision-making function.

Significantly, the Charter signed last week by DNI Clapper will remain in effect for five years. This means that “intelligence transparency” is likely to endure as a problem and a challenge well into the next Administration.

Advisory Committee Meetings Often Closed, and More from CRS

The 1972 Federal Advisory Committee Act (FACA), one of the “open government” laws, generally mandates that federal advisory committee meetings be held openly, except under certain specified circumstances. But over the past ten years, the number of closed meetings has actually increased, a new analysis by the Congressional Research Service found.

“FY2014 reported the highest percentage of closed meetings (71.1%) during the time period of examination,” CRS found.

Official advisory committees can be an important mechanism for exerting non-governmental influence on the policies of executive branch agencies. So the composition of such committees, their operations and their recommendations are susceptible to political pressures. FACA was intended to help counter abuse of the advisory committee process and ensure a modicum of fairness to competing points of view, in part by requiring that their meetings be conducted openly.

There are normally around a thousand advisory committees subject to FACA. “Generally, around 70,000 people serve as members on FACA committees and subcommittees in any given year. In FY2014, 68,179 members served. In FY2014, 825 federal advisory committees held 7,173 meetings and cost more than $334 million to operate,” the CRS report found.

See The Federal Advisory Committee Act: Analysis of Operations and Costs, October 27, 2015.

Other new reports from Congressional Research Service include the following.

The European Union (EU): Current Challenges and Future Prospects in Brief, October 27, 2015

Air Force Bomber Contract Awarded, CRS Insight, October 28, 2015

A Survey of House and Senate Committee Rules on Subpoenas, October 26, 2015

Federal Reserve: Dividends Paid to Commercial Banks, CRS Insight, October 28, 2015:

Birthright Citizenship and Children Born in the United States to Alien Parents: An Overview of the Legal Debate, October 28, 2015

Iran’s Central Bank Will Have Its Day in the Supreme Court, CRS Legal Sidebar, October 28, 2015

Congressional Efforts to Reduce Restrictions on Growing Industrial Hemp, CRS Insight, October 29, 2015

Senate Passes Cybersecurity Information Sharing Bill — What’s Next?, CRS Legal Sidebar, October 28, 2015