Transparency vs. Good Government

It is usually taken for granted that transparency is a prerequisite to good government. The idea seems obvious.

“Transparency promotes accountability and provides information for citizens about what their Government is doing,” said President Obama in 2009. “Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

But in practice, that is not always true. Demands for transparency can sometimes be used to undermine the values of an open society, and current events compel a more nuanced understanding of the concept.

When President Trump and his political allies press for public disclosure of the lawfully protected identity of the CIA Ukraine whistleblower, their efforts are not calculated to promote accountability but to counter or delegitimize independent criticism, and perhaps to deter other would-be whistleblowers.

The Environmental Protection Agency is citing transparency in a pending proposal to block the use of scientific research in formulating regulations on hazardous materials unless the underlying data is made fully and publicly available. That means that research involving confidential medical records, for example, would not be permitted to serve as a basis for public policy under the EPA proposal, the New York Times reported, since those records are not (and generally should not be) available to the general public.

Some purported transparency shades easily into deception and disinformation. When President Trump “revealed” last month that Islamic State leader al-Baghdadi died “whimpering,” that was almost certainly untrue. No military official has been willing or able to confirm the claim, which seems improbable considering that Baghdadi killed himself by detonating a suicide vest.

Other forms of transparency are mostly harmless but also not very helpful. One thinks with chagrin of the many millions of pages of painstakingly declassified government records in official archives that go unread by the public and untouched even by specialists.

The point is not that transparency is bad or good, but rather that it cannot be an end in itself. It is a tool that is often indispensable for democratic decision making, but it is a tool that can also be used as a weapon.

Complicating matters further, the transparency that one person considers indispensable is often deemed to be unnecessary, inappropriate or even threatening by someone else. (Current congressional demands for testimony and documents amount to “constant harassment,” said Attorney General William Barr in a speech last week arguing for the primacy of the executive branch.)

New forums and procedures may be needed to adjudicate such disputes. Unauthorized disclosures can sometimes provide an expeditious shortcut, though the same dichotomy of constructive and destructive transparency applies with equal force to leaks.

In short, “Transparency is not, in itself, a coherent normative ideal,” as David E. Pozen of Columbia Law School recently wrote. It will yield positive outcomes in some circumstances and negative outcomes in others. Therefore, “less romanticism and more realism” about the topic is needed. See Pozen’s article “Seeing Transparency More Clearly,” Public Administration Review (forthcoming).

NARA Drives Govt Transition to All-Electronic Records

The National Archives and Records Administration (NARA) is embarking on an ambitious effort to phase out the acquisition of paper records by 2022 and to transition to all-electronic record keeping. The White House Office of Management and Budget has endorsed the initiative and has directed all federal agencies to adopt exclusively electronic formats for managing permanent records.

But the move is generating anxiety about the feasibility of the transition and about possible unintended negative consequences for public access to government records.

“The most significant part of [the new policy is the provision for NARA] to stop accepting paper records by December 31, 2022,” wrote David S. Ferriero, the Archivist of the United States, in a June 28 notice to NARA employees.

Accordingly, the Acting Director of OMB directed all agency heads to plan to operate all but exclusively in an all-electronic environment.

“By December 31, 2022, all permanent records in Federal agencies will be managed electronically to the fullest extent possible for eventual transfer and accessioning by NARA in an electronic format,” the June 28 OMB memo stated.

After 2022, agencies will be obliged to convert any remaining permanent analog records in their possession to digital formats for transfer to NARA.

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The new policy shows some signs of carelessness in its formulation. The paragraphs in the OMB memorandum are incorrectly numbered. The text includes reference to a “section 2.2” which does not exist. Meanwhile, several more substantial concerns have been raised by dissenting observers and employees.

“There are significant and crucial [paper] records that have not been, and will not be, transferred into the system by 2022,” said one records specialist who is critical of the new policy. These include some original Department of State SCI-level records dating back to the 1940s, as well as many classified original records from CIA, NRO, NSA, DoD/OSD, and FBI that have been withheld from the National Archives.

A NARA official countered that those records could and should be transferred to NARA by the 2022 deadline. But if they are not transferred, then agencies could seek an exception for those records, or else they would be obliged to digitize them.

Isn’t that an unfunded mandate that is likely to result in inferior digitized copies of valuable originals?

Not if agencies change their practices, NARA says. Agencies currently are spending hundreds of millions of dollars to store and service paper records. If the new policy is successfully implemented, those resources could be repurposed for digitization of remaining records and investment in electronic records management that meets archival standards. By all accounts new resources will be required to enable NARA to accommodate vast new collections of electronic records and to process them for public access.

Still, said a critic of the new policy, “It reflects a fundamental change in NARA’s mission from the identification and protection of the permanently valuable records to the protection of images of records; from protection of originals to protection of facsimiles.”

There are two deeply divided schools of thought on that point, NARA acknowledges. One view holds that a properly digitized copy is perfectly acceptable, while an opposing view considers that digitized copies are only valid for improving access while the original [paper] record is “the record.” The point becomes largely moot as new paper originals recede into the past in favor of electronic originals.

In any case, the imposition of a 2022 deadline for conversion to an all-electronic environment is “forcing a lot of useful conversations,” according to a NARA official who admits that some anxiety may not be out of place.

“This is going to be a colossal disaster for the records and those who depend on them,” an internal critic said.

No, it’s going to be a “soft disruption,” the NARA official said. Implementation of the policy will be flexible, the official said. “Nothing will be lost.”

“We’re in the process of shifting the entire government off of paper and to all electronic record-keeping,” Archivist Ferriero told the Washington City Paper last week. “We are playing a major role in helping the agencies get to that point.”

Pentagon Pivots to More “Public Engagement”

Defense Secretary Mark T. Esper, who took office last week, has directed senior military and civilian defense officials to “more actively engage with the public,” according to a Pentagon memo issued on Friday.

“Simply put, the Department benefits when we thoughtfully engage with the American public, Congressional leaders, international community, and the media,” wrote Jonathan Rath Hoffman, the Assistant to the Secretary for Public Affairs.

But increased public and media engagement does not necessarily mean increased disclosure or improved access to information.

“Always seek the appropriate balance between transparency and operational security,” the July 26 memo stated. “As senior leaders you are closer to pertinent issues. Therefore, you are often best suited to make determinations on what should or should not be released within classification guidelines and have the responsibility to protect even unclassified non-public information.”

Still, the new memo represents a change in attitude from that expressed by the previous Secretary of Defense, Jim Mattis.

In an uncompromising October 2017 memo that was understood by Pentagon officials to discourage discretionary disclosures, SecDef Mattis wrote:

“We must be vigilant in executing our responsibility to prevent disclosure of any information not authorized for release outside of the Department of Defense: All hands must be alert to prevent unauthorized disclosure of non-public information for any reason, whether by implied acknowledgement or intentional release. Misconduct cannot be tolerated and suspected or confirmed disclosure must be reported at once.”

Following that direction from Secretary Mattis, many types of previously available defense-related information were in fact withdrawn from public and media access, such as the number of US troops in Afghanistan, Iraq and Syria, and the current size of the US nuclear arsenal.

Therefore, if Secretary Esper wanted to increase public disclosure of defense information, it wouldn’t be hard to do.

Earlier this month, DoD produced its updated report on the post-9/11 cost of warthrough March 31, 2019.

“Since September 11, 2001, the Department of Defense (DoD) has obligated $1,548.5 billion for war-related costs,” the report said, using DoD’s somewhat arbitrary metrics for cost reporting.

The unclassified cost report was provided to Congress, but it was not publicly released by DoD.

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.

Next HASC Chair Sees Need for Greater DoD Transparency

Rep. Adam Smith (D-WA), the likely chair of the House Armed Services Committee in the next Congress, told congressional colleagues that enhancing national security transparency is among his top oversight priorities.

“Together, we have made strides on national security issues but much more must be done to conduct vigorous oversight of the Trump Administration and the Department of Defense,” he wrote in a November 8 letter to House Democrats, declaring his candidacy for HASC chairman.

“Specifically, we must look to eliminate inefficiency and waste at the DOD; boost oversight of sensitive military operations and ensure that the military works to avoid civilian casualties; protect our environmental laws nationwide; advance green technology in defense; take substantial steps to reduce America’s overreliance on nuclear weapons; and promote greater transparency in national security matters,” he wrote.

In an opinion column last month, Rep. Smith elaborated on the topic. He said the Trump Administration and the Pentagon had abused their secrecy authority with counterproductive results.

“The Defense Department under this administration [. . .] declared war on transparency in their earliest days on the job. On issue after issue, they have made conspicuous decisions to roll back transparency and public accountability precisely when we need it most,” he wrote, citing numerous examples of unwarranted secrecy.

A course correction is needed, he said.

“Candid discussion with Congress about military readiness, the defense budget, or deployments around the world; the release of general information about the effectiveness of weapons systems that taxpayers are funding; and many other basic transparency practices have not harmed national security for all the years that they have been the norm,” he wrote. “The efforts to further restrict this information are unjustified, and if anything, the recent policies we have seen call for an increase in transparency.”

See “The Pentagon’s Getting More Secretive — and It’s Hurting National Security” by Rep. Adam Smith, Defense One, October 28, 2018.

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The mystery surrounding a classified US military operation called Yukon Journey was partially dispelled by a news story in Yahoo News.

“Even as the humanitarian crisis precipitated by Saudi Arabia’s more-than-three-year war in Yemen has deepened, the Pentagon earlier this year launched a new classified operation to support the kingdom’s military operations there, according to a Defense Department document that appears to have been posted online inadvertently.”

See “Pentagon launched new classified operation to support Saudi coalition in Yemen” by Sharon Weinberger, Sean Naylor and Jenna McLaughlin, Yahoo News, November 10.

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The need for greater transparency in military matters will be among the topics discussed (by me and others) at a briefing sponsored by Sen. Jack Reed and the Costs of War Project at Brown University on Wednesday, November 14 at 10 am in 236 Russell Senate Office Building. A new report on the the multi-trillion dollar costs of post-9/11 US counterterrorism operations will be released.

Reading DoD Reports to Congress

The U.S. Department of Defense spent $11.3 billion on purchases abroad in 2015, including $1.6 billion worth of goods or services from the United Arab Emirates, according to a newly released DoD report to Congress.

The majority of foreign purchases by DoD were for fuel, services, construction and subsistence. The DoD report breaks down the total that was spent abroad by DoD in each of several dozen foreign countries.

See Purchases from Foreign Entities in FY2015, DoD report to Congress, June 2016 (released under FOIA May 2018).

Update: The June 2017 DoD report on purchases from foreign entities in FY 2016 is here. Reports from prior years can be found here.

DoD reports to Congress are often a significant source of official information and perspective on various aspects of U.S. military policy.

Most recently, DoD produced its required report on Civilian Casualties in Connection With United States Military Operations in 2017, June 1, 2018.

A few months ago, the Pentagon submitted an Interim Report on Organizational and Management Structure for the National Security Space Components of the Department of Defense, March 2018.

A report last year addressed Department of Defense Infrastructure Capacity, October 2017.

Public access to such reports is sporadic and often delayed. A bill pending in the House of Representatives would require the Government Publishing Office to post all such (unclassified) reports online. See Access to Congressionally Mandated Reports Act (HR 4631).

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.

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.”