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.”

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.