What is the role of ethics in intelligence and at the CIA in particular?
“Some former employees and others with experience at the agency have been critical of CIA’s ethics program as focusing too much on legal compliance in a reactive, ad hoc manner that falls short of a comprehensive approach to ethics education at the CIA,” the Congressional Research Service said in a recent discussion of the topic.
But “Others are skeptical of introducing training on morality into what is often viewed as the inherently amoral environment of covert action or clandestine foreign intelligence.” See CIA Ethics Education: Background and Perspectives, CRS In Focus, June 11, 2018.
Other new and updated reports from the Congressional Research Service include the following.
Defense Acquisitions: How and Where DOD Spends Its Contracting Dollars, updated July 2, 2018
Mexico: Organized Crime and Drug Trafficking Organizations, updated July 3, 2018
China-U.S. Trade Issues, updated July 6, 2018
The Army’s Modular Handgun Procurement, CRS In Focus, June 19, 2018
President Trump Nominates Judge Brett Kavanaugh: Initial Observations, CRS Legal Sidebar, July 10, 2018
Who Interprets Foreign Law in U.S. Federal Courts?, CRS Legal Sidebar, July 9, 2018
The Designation of Election Systems as Critical Infrastructure, CRS In Focus, July 6, 2018
Federal Quantum Information Science: An Overview, CRS In Focus, July 2, 2018
In a significant expansion of intelligence record preservation, email from more than 426 Central Intelligence Agency email accounts will now be captured as permanent historical records. A plan to that effect was approved by the National Archives last week.
In 2014, the CIA had said that it intended to preserve the emails of only 22 senior officials, a startlingly low number considering the size and importance of the Agency. The National Archives initially recommended approval of the CIA proposal.
“In our experience, email messages are essential to finding CIA records that may not exist in other so-called permanent records at the CIA,” wrote Senators Dianne Feinstein and Saxby Chambliss in November 2014, when they were chair and vice chair of the Senate Intelligence Committee. “Applying the new proposal to all but the 22 most senior CIA officials means the new policy would allow the destruction of important records and messages of a number of top CIA officials.”
In light of such objections, NARA agreed to reassess the CIA plan. It was officially withdrawn by CIA in 2016.
The new plan, submitted by CIA in July 2017 and approved by NARA on April 24, extends email record preservation much deeper into the CIA bureaucracy, requiring retention of the email of many program managers and office directors that were missing from the original plan.
The newly approved plan identifies 426 accounts subject to capture as permanent records. However, a number of other email accounts covered by the new plan are classified “due to the names of some offices noted on the form as well as the number of accounts in certain categories,” said Meg Phillips, external affairs liaison for NARA. The total number is therefore greater than 426.
The CIA’s new plan “resolves the majority of comments or concerns raised during the public comment period” regarding the previous plan, Ms. Phillips said.
The Central Intelligence Agency can selectively disclose classified information to reporters while withholding that very same information from a requester under the Freedom of Information Act, a federal court ruled last month.
The ruling came in a FOIA lawsuit brought by reporter Adam Johnson who sought a copy of emails sent to reporters Siobhan Gorman of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times that the CIA said were classified and exempt from disclosure.
“The Director of Central Intelligence is free to disclose classified information about CIA sources and methods selectively, if he concludes that it is necessary to do so in order to protect those intelligence sources and methods, and no court can second guess his decision,” wrote Chief Judge Colleen J. McMahon of the Southern District of New York in a decision in favor of the CIA that was released last week with minor redactions.
The Freedom of Information Act is a tool that can change as it is used, whether for the better or the worse, especially since FOIA case law rests on precedent. That means that a FOIA lawsuit that is ill-advised or poorly argued or that simply fails for any reason can alter the legal landscape to the disadvantage of future requesters. In particular, as anticipated a few months ago, “a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.” That is what has now happened.
The shift is starkly illustrated by comparing the statements of Judge McMahon early in the case, when she seemed to identify with the plaintiff’s perspective, and her own final ruling that coincided instead with the CIA’s position.
“There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including ‘trusted reporters,’ for any purpose, including the protection of CIA sources and methods that might otherwise be outed,” she had previously stated in a January 30 order.
“In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private as to anyone else,” which was exactly the plaintiff’s point.
“I suppose it is possible,” she added in a cautionary footnote, “that the Government does not consider members of the press to be part of ‘the public.’ I do.”
But this congenial (to the plaintiff) point of view would soon be abandoned by the court. By the end of the case, the mere act of disclosure to one or more members of the press would no longer be deemed equivalent to “public disclosure” for purposes of waiving an exemption from disclosure under FOIA.
Instead, Judge McMahon would come to accept, as the CIA argued in a February 14 brief, that “a limited disclosure of information to three journalists does not constitute a disclosure to the public. Where, as here, the record shows that the classified and statutorily protected information at issue has not entered the public domain, there is no waiver of FOIA’s exemptions.”
Plaintiff Johnson objected that “the Government cannot define ‘public’ to mean members of the public it is not disclosing information to.”
“The Government’s position that it may selectively disclose without waiver, if it has the best of intentions, knows no logical limits and would render the FOIA waiver doctrine a nullity,” he wrote. “The CIA’s motive in releasing the information is irrelevant under FOIA. Whether good reason, bad reason, or no reason at all, what matters is that an authorized disclosure took place. If the CIA does not wish to waive its secrecy prerogative, it cannot authorize a disclosure to a member of the public.”
In an amicus brief, several FOIA advocacy groups presented a subtle technical argument in support of the plaintiff. Under the circumstances, they concluded, the court had no choice but to order disclosure. “It does not matter… how much alleged damage the release of the information could cause.”
But these counterarguments proved unpersuasive to the court, and Judge McMahon ended up with a new conception of what constitutes the kind of prior “public disclosure” that would compel release of information under FOIA. Selective disclosure to individual reporters would not qualify.
“For something to be ‘public,’ it has to, in some sense, be accessible to members of the general public,” she now held in her final opinion.
“Selective disclosure of protectable information to an organ of the press… does not create a ‘truly public’ record of that information.” So CIA cannot be forced to disclose it to others. This was exactly the opposite of the view expressed by Judge McMahon earlier in the case.
The ruling was a defeat for the FOIA in the sense that it affirmed and strengthened a barrier to disclosure.
But it might also be considered a victory for the press, to the extent that it enables exchange of classified information with reporters off the record. Had the court compelled disclosure of the classified CIA emails to reporters Gorman, Ignatius and Shane, that would likely have reduced or eliminated the willingness of agencies to share classified information with reporters, as they occasionally do.
But the practice of selective disclosure has risks of its own, wrote plaintiff’s attorney Dan Novack last year. It “allow[s] the government to hypocritically release sensitive national security information when it suits its public relations interests without fear of being held to its own standard later.”
The Central Intelligence Agency said yesterday that it has the right to disclose classified information to selected journalists and then to withhold the same information from others under the Freedom of Information Act.
FOIA requester Adam Johnson had obtained CIA emails sent to various members of the press including some that were redacted as classified. How, he wondered, could the CIA give information to uncleared reporters — in this case Siobhan Gorman (then) of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times — and yet refuse to give it to him? In an effort to discover the secret messages, he filed a FOIA lawsuit.
His question is a good one, said Chief Judge Colleen McMahon of the Southern District of New York in a court order last month. “The issue is whether the CIA waived its right to rely on otherwise applicable exemptions to FOIA disclosure by admittedly disclosing information selectively to one particular reporter [or three].”
“In this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private,” she wrote. “There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including ‘trusted reporters,’ for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had?”
Judge McMahon therefore ordered CIA to prepare a more rigorous justification of its legal position. It was filed by the government yesterday.
CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from “unauthorized” disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said. “The CIA properly exercised its broad discretion to provide certain limited information to the three reporters.”
“The Court’s supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken,” the CIA response stated. “The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain. For these reasons, the limited disclosures here did not effect any waiver of FOIA’s exemptions.”
Selective disclosure of classified information to uncleared reporters is a more or less established practice that is recognized by Congress, which has required periodic reporting to Congress of such disclosures. See Disclosing Classified Info to the Press — With Permission, Secrecy News, January 4, 2017.
The nature of FOIA litigation is such that a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.
The Central Intelligence Agency formally asserted the state secrets privilege this week in order to prevent disclosure of seven categories of information concerning its post-9/11 interrogation program, and to prevent the deposition of three CIA officers concerning the program.
The move was first reported in the New York Times (“State Secrets Privilege Invoked to Block Testimony in C.I.A. Torture Case” by James Risen, Sheri Fink and Charlie Savage, March 8).
“Over time, certain information about the [CIA interrogation] program has been officially declassified and publicly released,” acknowledged CIA director Michael Pompeo, in a March 2 declaration explaining the CIA’s justification for asserting the state secrets privilege. “For example, the enhanced interrogation techniques employed with respect to specific detainees in the program, and their conditions of confinement, are no longer classified.”
“Nonetheless, many details surrounding the program remain highly classified due to the damage to national security that reasonably could be expected to result from disclosure of that information. For this reason, the CIA has withheld or objected to the disclosure of certain information implicated in discovery in this case,” he wrote.
“The Government has undertaken significant, good faith efforts to produce as much unclassified discovery as possible,” the Justice Department said in its March 8 motion. But “The Government has satisfied the procedural requirements for invoking the state secrets privilege.”
The government said that it had followed the guidance issued by Attorney General Eric Holder in 2009 that was intended to increase internal oversight of state secrets claims by elevating them to the attention of the Attorney General, among other steps.
“These standards and procedures were followed in this case, including personal consideration of the matter by the Attorney General and authorization by him to defend the assertion of the privilege,” Justice attorneys wrote.
The state secrets privilege has often been used in the past to terminate litigation altogether by barring introduction of essential evidence. But not in this case.
“The Government is not seeking dismissal here,” the Justice Department motion said. So even if the state secret privilege claims are granted by the court, as seems likely, the lawsuit could still move forward.
“We think [the] case can proceed on [the] public record,” tweeted attorney Hina Shamsi of the ACLU, which represents the plaintiffs in the case against two CIA psychologists.
Last March, the conservative watchdog group Judicial Watch filed a Freedom of Information Act lawsuit against the Central Intelligence Agency seeking a copy of “all pornographic material” collected during the May 2011 military operation that killed Osama bin Laden.
In opposition, CIA argued that “responsive records, if any, would be contained in operational files,” and that “the CIA Information Act exempts the CIA’s operational files from FOIA’s search and disclosure requirements.”
There is indeed an exemption from FOIA for CIA operational files, but the scope and the proper application of the exemption are in dispute. If the requested pornographic records do qualify for the “operational files” designation, as CIA holds, then they do not need to be assembled, reviewed or released in response to Judicial Watch’s request.
But whether they do so qualify is not a perfectly simple question, since the operational files exemption has various technical limitations and exceptions.
Judicial Watch said the bin Laden pornography falls within the “special activity” exception to the operational files exemption. “The ‘special activity’ exception applies to records concerning a specific covert action that has been publicly disclosed or acknowledged,” wrote attorney Michael Bekesha of Judicial Watch.
As evidence that the bin Laden raid was in fact a covert action that has been publicly disclosed, Judicial Watch cited a quotation from then-CIA Director Leon Panetta, who described it on the PBS Newshour, saying that “this was what’s called a ‘title 50’ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way.”
Remarkably, however, CIA insisted that Panetta “did not acknowledge that the operation was conducted under covert action authorities.”
“The term ‘covert operation’ [used by Panetta] is not synonymous with a ‘covert action,’ nor is Mr. Panetta’s description of the raid as ‘covert’ an acknowledgement of a ‘covert action’,” said CIA’s Antoinette B. Shiner in a declaration last month.
Judicial Watch moved to strike that CIA declaration as improper, particularly since it was not based on personal knowledge of Panetta’s intent.
That particular issue, and the case as a whole, now await resolution by Judge Ketanji Brown Jackson of the DC District Court.
In an aside, attorneys for CIA questioned the plaintiff’s motivation for filing the lawsuit. “It is hard to imagine how dissemination of pornographic materials allegedly seized during the Bin Laden raid could inform the public in any meaningful way about what the United States government is up to — the core, animating purpose of FOIA — much less advance Judicial Watch’s professed mission ‘to promote transparency, accountability, and integrity in government and fidelity to the rule of law’.”
But the Freedom of Information Act does not require that requesters be motivated by some constructive purpose. Under FOIA, any person may request any government record for any reason, or for no reason at all. The bar to entry and the costs of participation are practically non-existent.
For its part, Judicial Watch defended its approach. “We’re filling multiple roles here in a Washington where the traditional vehicles for government accountability have broken down,” said Tom Fitton, president of the organization, in a recent profile in the New York Times. (“Group’s Tactic on Hillary Clinton: Sue Her Again and Again” by Jonathan Mahler, October 12.)
* * *
Last week, the Central Intelligence Agency released the conclusions of its 2015 “decennial review” of operational file designations, as required by the CIA Information Act of 1984. The exercise is supposed to refine and revalidate the use of the operational files category as an exemption from FOIA.
But although CIA went through the motions of requesting public comments on the matter last year, the Agency did not directly respond to any of those comments in its April 2016 report to Congress. For the most part, the results of the third decennial review track closely with those of the second decennial review in 2005. The new report does not explicitly reference Clandestine Service History Program Files, however, among a few other changes in wording. The significance of that is unclear.
The latest review did not identify any categories of records that were to be removed from the operational files category, as was done in report on the first decennial review in 1995.
The Central Intelligence Agency yesterday released a long-sought draft of the fifth volume of its internal history of the 1961 invasion of the Bay of Pigs.
The release was among the first tangible results of this year’s amendments to the Freedom of Information Act, which imposed a 25 year limit on the exemption for “deliberative” files. As a result, the 1984 draft history could no longer be legally withheld.
CIA said in a cover note that “This fifth draft volume was not publishable in its present form, in the judgment of CIA Chief Historians as well as other reviewers, because of serious shortcomings in scholarship, its polemical tone, and its failure to add significantly to an understanding of the controversy over the Bay of Pigs operation.”
Indeed, the new “volume is strange, in some respects, and interesting,” said Villanova Prof. David M. Barrett, who had filed a lawsuit last summer for release of the draft history.
“Essentially, it is a critical history of the Inspector General’s critical report on Bay of Pigs, which mainly blamed CIA incompetence for the failure at Bay of Pigs. [The author, CIA historian Jack] Pfeiffer says IG Lyman Kirkpatrick’s report was, itself, biased and incompetent. Pfeiffer says the most obvious cause of failure at Bay of Pigs was JFK’s decision to cancel a planned 2nd airstrike in support of the invaders at Bay of Pigs,” Barrett said.
He noted several highlights:
Author Pfeiffer describes one of the IG report’s authors as probably mentally ill (p. 75). Writing in about 1983, Pfeiffer says that CIA had kept the IG report and other internal analyses of Bay of Pigs classified Secret in order to avoid airing its “dirty laundry.” (p. 4).
Pfeiffer says CIA hired a couple of people to write the true story of Bay of Pigs with the hope of having Life Magazine or another outlet publish it. Only State Dept objections stopped that from being pursued, though the authors did write the article. (p. 87-90)
At the end, Pfeiffer suggests in a footnote that the history program (where he worked!) should probably be abolished, and the raw materials it possessed should be destroyed; the Operations Directorate was hostile to it, and it was hard to see the point of the program. (p. 146) [Correction: The views expressed in the footnote on page 146 are those of other CIA officials, not Pfeiffer’s.]
“Not quite earth-shaking history, but I think the real story is that CIA spent much effort and money over the past 5 years to prevent [release] of this document,” Barrett said.
The National Security Archive, which had previously filed suit to obtain the document, hailed its release here.
The Central Intelligence Agency said this week that it will post its database of declassified CIA documents online, making them broadly accessible to all interested users.
The database, known as CREST (for CIA Records Search Tool), contains more than 11 million pages of historical Agency records that have already been declassified and approved for public release.
Currently, however, CREST can only be accessed through computer terminals at the National Archives in College Park, MD. This geographic restriction on availability has been a source of frustration and bafflement to researchers ever since the digital collection was established in 2000. (See CIA’s CREST Leaves Cavity in Public Domain, Secrecy News, April 6, 2009; Inside the CIA’s (Sort of) Secret Document Stash, Mother Jones, April 3, 2009).
But that is finally going to change.
The entire contents of the CREST system will be transferred to the CIA website, said CIA spokesperson Ryan Trapani on Tuesday.
“When loaded on the website they will be full-text searchable and have the same features currently available on the CREST system at NARA,” he said.
CIA was not able to provide a date for completion of the transfer, but “we are moving out on the plan to make the transition,” Mr. Trapani said.
In the meantime, “The CREST database housed at NARA will remain up and running at least until the website is fully functioning,” he said.
In a dispute that pitted member agencies of the U.S. intelligence community against each other, the Central Intelligence Agency claimed that “a questionable intelligence activity” had been carried out in 2014 by agents of the Department of Defense.
But an investigation of the matter by the DoD Inspector General that was partially declassified last week failed to corroborate the CIA claim.
At issue was whether or not an unnamed individual had “conducted unauthorized intelligence activities in Europe on behalf of DoD,” as CIA had alleged.
“We were unable to substantiate the CIA allegation and could not find any evidence that [deleted] traveled to Europe or paid any sources on behalf of the DoD,” the Inspector General concluded.
“We could not find evidence of DoD intelligence tasking,” the IG investigative summary said. “In addition, we verified that [deleted] did not travel to Europe in 2014.”
The IG summary report, which had been classified Secret/Noforn, was partially declassified and released under the Freedom of Information Act last Friday. See Investigative Results of a Questionable Intelligence Activity (redacted), DoD Inspector General report DODIG-2015-171, September 8, 2015.
Meanwhile, for his part, the alleged DoD culprit “asserts that the CIA fabricated the allegation that [deleted] had been conducting intelligence operations in Europe in order to ensure that [several words deleted] because [deleted] claimed [deleted] had previously identified and revealed analytical flaws within CIA analysis.”
However, that counter-accusation “was outside the scope of our investigation and has been referred to the Intelligence Community Inspector General for review.”
The exact nature of the alleged questionable intelligence activity and the identity of the individual(s) involved were not declassified.
Nor would CIA elaborate on the public record.
“You can say CIA declined to comment,” said CIA spokesperson Ryan Trapani. “We defer to DOD on the document.”
The Central Intelligence Agency said that it will disclose four previously unacknowledged Cold War covert actions. The four have not yet been publicly identified, but they will be addressed in forthcoming editions of the U.S. State Department’s official Foreign Relations of the United States (FRUS) series.
“In 2015 [CIA] agreed to acknowledge four covert actions that will be documented in future volumes (of FRUS),” according to a new annual report from the State Department Advisory Committee on Historical Diplomatic Documentation for calendar year 2015.
CIA spokesperson Ryan Trapani declined to say what those four covert actions are.
“CA [covert action] programs are not officially declassified until done so by FRUS, so you have to wait for its formal announcement,” Mr. Trapani said by email.
The FRUS series has been a significant driver of the national security declassification program, particularly since a 1991 statute required that FRUS must present a “thorough, accurate, and reliable” documentary history of U.S. foreign relations — which necessarily includes information that was classified at the time — within 30 years of the events in question.
The State Department has never yet complied with that 30 year deadline, but the new Advisory Committee report indicates the situation is improving. “It is likely that HO [the State Department Office of the Historian] will finally meet its statutory thirty-year timeline as it publishes more volumes in the Reagan administration series over the next few years.”
The Committee report was complimentary towards the CIA, citing “the very positive relationship HO has developed with CIA over the past several years [which] has paid dividends. CIA consistently reviews both specific documents and compiled volumes in a timely manner….”
“Nevertheless, the frequent reliance on covert actions in the Reagan and subsequent administrations will doubtless require lengthy declassification processes that will inevitably delay publication of a significant number of volumes beyond the 30-year target,” the report said.
One specific area of disappointment is the failure to release the long-deferred FRUS volume on the 1953 coup in Iran.
“Owing to the currently volatile relationship between the United States and Iran…, the State Department continues to withhold its approval for publishing the eagerly anticipated retrospective volume on Iran 1953,” the Committee report noted.
The status of the Iran volume is expected to be on the agenda of the upcoming meeting of the State Department Advisory Committee on June 6.
The Central Intelligence Agency has formally rescinded its widely-criticized plan to destroy the email records of all but 22 senior agency officials, the National Archives said last week.
The CIA proposal generated controversy when it became public in 2014 because of its surprisingly narrow scope, which would have precluded preservation of vast swaths of CIA email records. Such records have proved invaluable not only for historical purposes, but also for contemporary accountability and congressional oversight.
“The agency has withdrawn this schedule effective March 21, 2016, due to the agency’s reorganization,” wrote Margaret Hawkins, director of records appraisal and agency assistance at the National Archives and Records Administration, in an email message to the Federation of American Scientists.
“In our last communication on this schedule, it was conveyed that a public meeting would be held to address all comments received. With the schedule’s withdrawal, this meeting will not be held.”
In any case, CIA is still obliged to present a plan to the National Archives to explain how it will preserve or dispose of its email records. CIA can either adopt the standard template known as the Capstone General Records Schedule, or it can devise a specific plan of its own for approval by the National Archives.
“If the agency chooses to submit a new agency-specific records schedule, it will be available for request and comment to the public through the Federal Register process,” Ms. Hawkins wrote.
In a newly disclosed memorandum from 1963, the Director of Central Intelligence advised the Secretary of State that the CIA had “good reproductions” of Soviet satellite imagery.
This puzzling remark appears to suggest a previously unrecognized capability of the CIA.
The declassified memo summarizes a July 3, 1963 telephone conversation between DCI John McCone and Secretary of State Dean Rusk. It was discovered by researchers David M. Barrett and Eric P. Swanson.
According to the memo, McCone said that the U.S. had “for some time tried to determine whether the Soviets were actually photographing and the extent they were from satellites.” The DCI said “it has been determined they have been and we have good reproductions of what they are getting.” The DCI was to brief the President on the subject the following week.
In an article discussing the memo in the journal Intelligence & National Security, Barrett and Swanson wrote that they found “no references in the intelligence literature to the United States having had the capability to see what the Soviet satellites were seeing, much less any treatment of how the CIA obtained the ‘good reproductions’.”
Assuming the McCone statement is accurate, it would seem to imply one of a few possibilities. It could mean that the US was somehow intercepting the Soviet images (which seems improbable), or that it was replicating the images through US overflights, or else that it was simply modeling the images based on the presumed capabilities of the Soviet satellites and their orbital parameters.
Prof. Barrett added that the fact that the matter was to be briefed to the President indicated that it was of more than ordinary significance. He also noted that the 1963 memo was located in State Department records at the National Archives, and was not released by CIA.
The import of the memo remains uncertain.
Reproductions of Soviet satellite imagery were “not anything I ever came across some ten years later,” said former CIA analyst Allen Thomson, “and I was in a decent position to see such (Office of Weapons Intelligence).”
“At a guess, perhaps the ‘reproductions’ were simulations based on the technical state of the art at the time (film) and estimates of the camera aperture. That would have been easy enough to do and useful as an aid to orient consumers to what might be in the imagery. Or it could just have meant looking at the ground tracks to see what the satellites overflew,” Mr. Thomson said.