A Push to Elevate Open Source Intelligence

Open source intelligence — which is derived from open, unclassified sources — should be recognized as a mature intelligence discipline that is no less important than other established forms of intelligence, the House of Representatives said last month in the FY 2022 defense authorization act (sec. 1612).

The House directed the Secretary of Defense and the Director of National Intelligence to develop and implement “a plan to elevate open-source intelligence to a foundational intelligence for strategic intelligence that is treated on par with information collected from classified means (for example, human intelligence, signals intelligence, and geospatial intelligence).”

Considering that those classified disciplines have large dedicated agencies of their own (CIA, NSA, NGA), it would seem to be a major undertaking to “elevate” open source intelligence to the same level and to treat it comparably.

Significantly, the House directive is driven not by some abstract preference for open sources but by “the intelligence priorities of the commanders of the combatant commands.” The thinking appears to be that open source intelligence — that can be shared widely or even (sometimes) publicly disclosed — offers practical advantages to military commanders that other, highly classified forms of intelligence typically lack.

A related sign of dissatisfaction with unchecked military secrecy can be found in another provision of the House authorization bill that would require the Space Force to “conduct a review of each classified program . . . to determine whether the level of classification of the program could be changed to a lower level or the program could be declassified.”

In recent years, open source intelligence has been managed by the elusive Open Source Enterprise (OSE) which is administratively housed at the Central Intelligence Agency. To the bewilderment and frustration of many users, the OSE decommissioned its own website in 2019 and made its products exceptionally difficult to access.

In response, last year’s intelligence authorization act (sect. 326) required a plan “for improving usability of the OSE” as well as other steps to enhance the utility of open source collection for intelligence. But so far, there is no externally visible sign of any change for the better.

Earlier this year, the CIA denied a Freedom of Information Act request for an unclassified OSE publication on North Korean ballistic missile tests. The CIA did not dispute that the document is unclassified, but it said the report was exempt from disclosure anyway. An appeal of the denial is pending.

The US military’s interest in open source intelligence is longstanding and arguably dates back to colonial times. The Army’s Military Intelligence Professional Bulletin devoted an issue to the subject in 2005.

A 2006 Army Field Manual (since superseded) presented interim doctrine on the collection of open source intelligence.

A Resurgence of Democracy in 2040?

The world will be “increasingly out of balance and contested at every level” over the next twenty years due to the pressures of demographic, environmental, economic and technological change, a new forecast from the National Intelligence Council called Global Trends 2040 said last week.

But among the mostly grim possible futures that can be plausibly anticipated — international chaos, political paralysis, resource depletion, mounting poverty — one optimistic scenario stands out: “In 2040, the world is in the midst of a resurgence of open democracies led by the United States and its allies.”

How could such a global renaissance of democracy possibly come about?

The report posits that between now and 2040 technological innovation in open societies will lead to economic growth, which will enable solutions to domestic problems, build public confidence, reduce vulnerabilities and establish an attractive model for emulation by others. Transparency is both a precondition and a consequence of this process.

“Open, democratic systems proved better able to foster scientific research and technological innovation, catalyzing an economic boom. Strong economic growth, in turn, enabled democracies to meet many domestic needs, address global challenges, and counter rivals,” the report assessed in this potential scenario.

“With greater resources and improving services, these democracies launched initiatives to crack down on corruption, increase transparency, and improve accountability worldwide, boosting public trust. These efforts helped to reverse years of social fragmentation and to restore a sense of civic nationalism.”

“The combination of rapid innovation, a stronger economy, and greater societal cohesion enabled steady progress on climate and other challenges. Democratic societies became more resilient to disinformation because of greater public awareness and education initiatives and new technologies that quickly identify and debunk erroneous information. This environment restored a culture of vigorous but civil debate over values, goals, and policies.”

“Strong differences in public preferences and beliefs remained but these were worked out democratically.”

In this hopeful future, openness provided practical advantages that left closed authoritarian societies lagging behind.

“In contrast to the culture of collaboration prevailing in open societies, Russia and China failed to cultivate the high-tech talent, investment, and environment necessary to sustain continuous innovation.”

“By the mid-2030s, the United States and its allies in Europe and Asia were the established global leaders in several technologies, including AI, robotics, the Internet of Things, biotech, energy storage, and additive manufacturing.”

The success of open societies in problem solving, along with their economic and social improvements, inspired other countries to adopt the democratic model.

“Technological success fostered a widely perceived view among emerging and developing countries that democracies were more adaptable and resilient and better able to cope with growing global challenges.”

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Many assumptions are built into this vision, and not all of them are defended or even made explicit. But taken at face value, the Global 2040 scenario in which democracy flourishes implies certain near-term policy choices that are at odds with current U.S. practice. Such discrepancies could actually make the report useful instead of merely interesting because they highlight areas for change.

For example, the resurgence scenario imagines that “leading scientists and entrepreneurs” from China and Russia will have “sought asylum in the United States and Europe” to escape repression in their home countries.

But US immigration policy today is not exactly consistent with this notion.

“The United States is still one of the top destinations for AI [artificial intelligence] students and professionals, but it may not stay that way for long,” wrote Doug Rand and Lindsay Milliken of the Federation of American Scientists in a new paper.

“The United States’ often rigid and confusing immigration policies make it difficult for AI professionals and students to stay in the country after they complete their education or try to change jobs. If this continues, countries like China, which is providing direct financial incentives to attract global AI talent, could gain an economic and national security edge over the United States.”

See Winning the Global Race for Artificial Intelligence Expertise: How the Executive Branch Can Streamline U.S. Immigration Options for AI TalentNYU Journal of Legislation and Public Policy, April 9, 2021.

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It would be highly convenient if the relative freedom that characterizes more open societies guaranteed the technological superiority of those societies, and if the tyrannical practices of more closed societies meant that they were also bound to be technologically primitive. Yet we know that is not always the case.

A recent report on Russian robotics (including autonomous weapons and UAVs) describes a wide range of innovative applications of robotics technology which are not at all limited by that country’s often cruel suppression of dissent.

“The interest in robotic systems and the creation of new models by scientific research institutes continues to expand in Russia’s military [and] will require the continued attention of the West.”

See Russian Robotics: A Look at Definitions, Principles, Uses, and Other Trends by Timothy Thomas, MITRE Corp, February 2021.

The robotics report itself is a fine example of the sort of unclassified open-source intelligence analysis that could be, but is not, routinely published to inform and enrich public deliberation.

The U.S. Intelligence Community, as currently configured, does not view the American public as a consumer for intelligence and so (with few exceptions) it is unwilling or unable to provide such open-source intelligence materials. The robotics study was produced for the U.S. Army, which approved it for public release.

A New Policy on Setting Intelligence Priorities

Shortly before the end of the Trump Administration in January 2021, then-Director of National Intelligence John Ratcliffe issued a directive that altered the process for preparing the National Intelligence Priorities Framework, or NIPF, stripping out limitations on signals intelligence collection from the previous policy.

The NIPF is perhaps the single most important administrative tool for managing the U.S. intelligence enterprise. It is used to determine priorities for intelligence collection and to allocate resources based on them.

The newly revised Intelligence Community Directive 204 on the National Intelligence Priorities Framework that was signed by DNI Ratcliffe on January 7, 2021 defines policy “for setting national intelligence priorities, translating them into action, and evaluating Intelligence Community (IC) responsiveness to them.”

It replaces the 2015 version of Intelligence Community Directive 204 that was issued in the Obama Administration by then-DNI James R. Clapper.

The new revision, which was published on the ODNI website last week, includes several noteworthy changes to the 2015 policy.

Most striking is the removal of all references to the Obama Presidential Policy Directive (PPD) 28 that was issued in the wake of the Snowden disclosures. PPD 28 included new limitations on signals intelligence collection and directed that whenever possible, “feasible alternatives to signals intelligence should be prioritized.”

The role of PPD-28 in preparing the National Intelligence Priorities Framework was duly cited by DNI Clapper in his 2015 directive. But those citations were removed by DNI Ratcliffe in his January 2021 revision.

The reason for the move is unclear. Is it possible that PPD-28 was quietly rescinded by the Trump Administration and is no longer in effect? That is not the case, according to the Office of the Director of National Intelligence.

“PPD-28 is still in effect and adhered to by the IC [Intelligence Community],” said Lauren Frost, ODNI communications officer. (PPD-28 was also cited in the 2015 Intelligence Community Directive 203 on Analytic Standards, which apparently remains in effect.)

But if so, the removal of all references to PPD-28 and its requirements from the new NIPF directive is unexplained.

The prior NIPF directive, pursuant to PPD-28, required consideration of “the risks of potential exposure of those [signals intelligence] activities to U.S. foreign policy, defense, commercial, economic, and financial interests, international agreements, privacy concerns, and the protection of intelligence sources and methods.”

In contrast, the newly revised directive requires consideration only of “the risks entailed in the potential exposure of intelligence priorities,” and it makes no mention at all of the potential exposure of intelligence activities.

The Ratcliffe directive adds a new provision to allow for “a releasable version of the national priorities matrix” to be shared with “Second Party partner nations” (also known as the other Five Eyes countries), namely the United Kingdom, Canada, Australia, and New Zealand.

Another new provision assigns “Intelligence Topic Experts” to help lead interagency development of intelligence priorities. Otherwise, most of the new directive consists of minor rewording of the previous version.

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The question of how to set intelligence priorities, which would be important at any time, arises at a moment when the definition of national security is increasingly open to reconsideration, especially outside of government.

Is national security mainly concerned with Iran nuclear weapons research and North Korean missiles and other adversarial threats or actions? Or does it also extend to the pandemic that resulted in more than half a million American deaths in the past year? How about climate change — is that a threat to national security? (The Department of Defense thinks so.)

What about the epistemic instability that seems to afflict more and more Americans who are inclined to give credence to ridiculous or obviously false beliefs? Does intelligence have anything to say about that? What would the intelligence community look like if it were retooled to address such concerns?

Intelligence is the one function of government that attempts to systematically discover what is likely to be true and what is deception or baseless speculation. So it would not be unreasonable to ask U.S. intelligence agencies to publish a regular, even daily stream of open source intelligence products that could help inform (not indoctrinate) the public and enrich deliberation on national security and foreign policy. Today, that is a distant prospect.

But it is not a totally unrealistic one. The FY2021 intelligence authorization act (in section 612) required the National Geospatial-Intelligence Agency to perform and to publish unclassified intelligence analyses concerning China together with an academic or non-profit institution. See “Spy agency to cast China’s clandestine military buildup into daylight” by Bill Gertz, Washington Times, March 21, 2021.

The FY2021 intelligence authorization act (in section 326) also called for development of a new strategy to guide open source intelligence, and for consideration of establishing a new, independent open source center. It did not address public access to open source intelligence products.

DNI Tries to Abort Controlled Unclassified Info Policy

In a bureaucratic bombshell, Director of National Intelligence John Ratcliffe has asked the White House to rescind a ten-year-old executive order that required a uniform policy for marking and handling “controlled unclassified information” (CUI).

CUI refers to information that while unclassified is nevertheless restricted by law or policy from broad distribution. It includes more than 100 distinct categories of unclassified information ranging from export controlled data to privacy information to information systems vulnerability and much more.

In order to facilitate both the appropriate protection and the authorized sharing of such diverse information, Executive Order 13556 was issued in 2010 to develop a comprehensive system of CUI practices that would replace the dozens of different, incompatible controls on unclassified information that have proliferated over time.

It is just now starting to take effect. Executive branch agencies are required to issue their implementation plans for CUI policy by December 31 — two weeks from now — according to the Information Security Oversight Office, the executive agent for CUI.

But DNI Ratcliffe did not request an extension of time to achieve compliance, as he might ordinarily have done. Nor did he seek an exemption for intelligence agencies from the overall policy. Nor did he suggest another approach to address the persistent problem of identifying, sharing and protecting CUI whose broad contours have long been recognized, including by President Bush in 2008.

Instead, he asked the White House to completely nullify more than ten years of government-wide policy development in this area and to cancel its application to all government agencies both inside and outside of the intelligence community.

“Given the complexity of the program, I believe that the full rescission of E.O. 13556 is the only viable alternative,” he wrote in a December 4 memo to the National Security Advisor.

This is a breathtaking move, given its timing and considering that the executive order has been fully embraced by most other agencies. The Department of Defense, where much of the intelligence community is housed, issued a directive last March (DoD Instruction 5200.48) to implement CUI policy throughout the Department.

“Although its clear mandate was to simplify the unclassified markings system and sharing rules, the resulting CUI program is exponentially more complex than the classification system,” DNI Ratcliffe wrote.

But this is a non sequitur, since the classification system deals exclusively with national security information. In contrast, CUI encompasses many unrelated domains including taxpayer data, health records, nuclear safeguards, law enforcement information, and various other categories established in statute. And CUI involves every government agency. Within the intelligence community, CUI pertains to certain geospatial data, operations security information, financial records obtained for counterintelligence purposes, and other items.

So it was always clear that CUI policy would be more complex and far-reaching than national security secrecy. Its detailed particularity follows from the need to make it as precise and limited in its application as possible.

But “The complexity and lack of clarity within the CUI Program has stymied uniform implementation policy within the IC,” the DNI said. “I cannot justify the continued investment in time and resources required for CUI implementation in the IC.”

The Information Security Oversight Office said in its most recent (2019) annual report to the President that it was “working with the Office of the Director of National Intelligence to address CUI implementation issues that are unique to the Intelligence Community.” Still, the Ratcliffe memo said “our concerns remain unaddressed.”

The White House response to the DNI’s request is thus far unknown. The Office of the DNI declined to comment on the record. Mark Bradley, director of the Information Security Oversight Office, said that CUI “plays a vital role in the twilight realm between classified and unclassified information.” He said that current program deadlines remain in effect.

According to an ISOO Notice last May, “”Most agencies project full [CUI] program implementation by the end of the third quarter of FY 2021.” So cancellation of the policy at this late date, without a well-defined strategy to replace it, would be disruptive to say the least, likely including adverse impacts on information security.

DNI Ratcliffe’s “strong opposition” to US Government policy on CUI together with his inability to formulate an acceptable alternate approach may, however, serve to elevate information policy as a priority for the Biden Administration.

DNI Ratcliffe’s memo was marked FOUO, For Official Use Only.

COVID-19 Highlights Need for Public Intelligence

Hobbled by secrecy and timidity, the U.S. intelligence community has been conspicuously absent from efforts to combat the COVID-19 pandemic, the most serious national and global security challenge of our time.

The silence of intelligence today represents a departure from the straightforward approach of then-Director of National Intelligence Dan Coats who offered the clearest public warning of the risk of a pandemic at the annual threat hearing of the Senate Intelligence Committee in January 2019:

“We assess that the United States and the world will remain vulnerable to the next flu pandemic or large-scale outbreak of a contagious disease that could lead to massive rates of death and disability, severely affect the world economy, strain international resources, and increase calls on the United States for support,” DNI Coats testified.

But this year, for the first time in recent memory, the annual threat hearing was canceled, reportedly to avoid conflict between intelligence testimony and White House messaging. Though that seems humiliating to everyone involved, no satisfactory alternative explanation has been provided. The 2020 worldwide threat statement remains classified, according to an ODNI denial of a Freedom of Information Act request for a copy. And intelligence agencies have been reduced to recirculating reminders from the Centers for Disease Control to wash your hands and practice social distancing.

The US intelligence community evidently has nothing useful to say to the nation about the origins of the COVID-19 pandemic, its current spread or anticipated development, its likely impact on other security challenges, its effect on regional conflicts, or its long-term implications for global health.

These are all topics perfectly suited to open source intelligence collection and analysis. But the intelligence community disabled its open source portal last year. And the general public was barred even from that.

It didn’t — and doesn’t — have to be that way.

In 1993, the Federation of American Scientists created an international email network called ProMED — Program for Monitoring Emerging Diseases — which was intended to help discover and provide early warning about new infectious diseases.

Run on a shoestring budget and led by Stephen S. Morse, Barbara Hatch Rosenberg, Jack Woodall and Dorothy Preslar, ProMED was based on the notion that “public intelligence” is not an oxymoron. That is to say, physicians, scientists, researchers, and other members of the public — not just governments — have the need for current threat assessments that can be readily shared, consumed and analyzed. The initiative quickly proved its worth.

In fact, it has continued to prove its worth up to the present day.

“It was notices on ProMED that first alerted the world to the 2003 SARS outbreak, and it was a posting on ProMED on Dec. 30, 2019 — about chatter on the Chinese social network Weibo — that first spread word of a novel coronavirus, soon identified as the cause of COVID-19, outside China.” See “The doomed 30-year battle to stop a pandemic” by Paul Wells, Maclean’s, April 21.

ProMED, which is now managed by the International Society for Infectious Diseases, is unclassified, free, and open to subscription by anyone.

“ProMED illustrates how NGOs can, in some cases, efficiently accomplish what large, bureaucratically burdened institutions cannot even begin,” the FAS Public Interest Report said in 1996.

Today, when national and global security concerns touch almost every household, the need for public intelligence is greater than ever, and it could become one focus of a reconfigured U.S. intelligence apparatus.

Improved Access to Open Source Intelligence Urged

Congress should require the Director of National Intelligence to make open source intelligence more widely available, the U.S.-China Economic and Security Review Commission recommended in its latest annual report.

Open source intelligence refers to information of intelligence value that is openly published and can be freely gathered without resort to clandestine methods. Such material, and the analysis based on it, can usually be produced on an unclassified basis.

But in practice, it is often tightly held. The U.S.-China Commission, which was created by statute in 2000, noted that the U.S. intelligence community had recently curtailed access to open source intelligence reporting even within the government.

Last June, the former OpenSource.gov web portal was “decommissioned.” Its contents were transferred to classified or restricted networks that are mostly inaccessible to those outside the intelligence community.

Congress should therefore direct the DNI to “restore the unclassified Open Source Enterprise website to all of its original functions for U.S. government employees,” the China Commission report said.

Even before the recent decommissioning of OpenSource.gov, most open source intelligence products that were produced by the intelligence community’s Open Source Enterprise were denied to researchers, scholars, and other members of the public who were not government employees or contractors.

That too is a mistake that should be corrected, the Commission said.

“Access to the Open Source Enterprise should also be expanded by making appropriate materials available to U.S. academic and research institutions,” the Commission report said.

Larry M. Wortzel, a China specialist and Commission member, said the growing limitations on open source intelligence are impeding China-related research.

“To work on China using Chinese open source documents, if you are not on [the classified network] JWICS, you need to read Chinese,” Mr. Wortzel told Bill Gertz of the Washington Times, who first reported on the Commission recommendation. See “DNI restricts open source intel,” November 27 (second item).

Government officials say that wider sharing of open source intelligence is not quite as simple or straightforward as it might seem, even aside from legal issues of copyright that may limit publication of foreign materials.

Like other forms of intelligence, open source material is subject to error and can be used for deception. In some cases it may be highly sensitive, as when the underlying information is published unwittingly, or when it offers US policymakers some transient “decision advantage” that could be squandered by wider publication.

But those are exceptional cases, not ordinary ones. More typically, open source intelligence products serve a humble but enormously valuable contextual function. Sometimes, they may offer genuine insight into pressing issues of national security and foreign policy. But even in their most pedestrian form — like the highly popular CIA World Factbook — they can help to inform and enrich policy research and public discourse. So the Commission’s recommendation to Congress seems well-founded.

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A newly updated US Army glossary of military terminology defines open source intelligence as “Relevant information derived from the systematic collection, processing, and analysis of publicly available information in response to known or anticipated intelligence requirements.” See Field Manual (FM) 1-02.1, Operational Terms, November 21, 2019.

“National Technical Means” Leaves the Lexicon

The venerable term “national technical means” which has long been used to refer to U.S. intelligence satellites and related capabilities is quietly dropping out of official usage.

The official DOD Dictionary of Military and Associated Terms still included “NTM” (for “national or multinational technical means of verification”) on the list of acronyms in its May 2019 edition, as it has in the past. But by the June revision, it was gone.

A newly updated US Army Field Manual on Army Space Operations proposed a new term that it said replaces national technical means:

“National Reconnaissance Office overhead systems (known as NOS) — formerly referred to as national technical means — are spaced-based sensors designed to collect data in order to support intelligence analysis.”

Except for that new Army manual, though, there is no other indication that these assets are in fact “known as NOS.” See Army Space Operations, Field Manual (FM) 3-14, October 30, 2019.

It is not clear why the traditional term has fallen out of favor.

The use of “national technical means of verification” dates from the 1972 Anti-Ballistic Missile Treaty. It was deliberately left undefined, then-Director of Central Intelligence Richard Helms said in 1971, both to protect intelligence methods and to avoid offending Soviet sensibilities.

“The Soviets themselves are very anxious that it not be discussed,” said DCI Helms at that time. “They have made it clear that they are unwilling to agree explicitly to anything which would appear to some as an infringement of territorial sovereignty, a matter on which they are extremely sensitive. So we draw no more attention than is necessary to this activity.”

“There will be no misunderstanding between Washington and Moscow about what is meant [by “national technical means”]. But we’ll avoid a lot of problems by saying it that way,” Helms said.

“National technical means of verification” are still referenced in the New START Treaty, which will expire in February 2021 if not renewed.

Intelligence Community Whistleblower Protections (CRS)

Noteworthy new and updated publications from the Congressional Research Service include the following.

Intelligence Community Whistleblower Protections: In Brief, updated September 23, 2019

U.S.-Iran Tensions and Implications for U.S. Policy, updated September 23, 2019

U.S. Role in the World: Background and Issues for Congress, updated September 23, 2019

U.N. Peacekeeping Operations in Africa, September 23, 2019

China’s Retaliatory Tariffs on U.S. Agriculture: In Brief, September 24, 2019

Global Research and Development Expenditures: Fact Sheet, updated September 19, 2019

U.S. Research and Development Funding and Performance: Fact Sheet, updated September 19, 2019

PCLOB Releases Its Oversight Agenda

The Privacy and Civil Liberties Oversight Board is conducting oversight in nearly a dozen areas broadly related to intelligence and counterterrorism. The PCLOB oversight agenda was detailed in a statement this week.

“This document describes the Board’s active oversight projects and other engagements. . . .The shorthand descriptions below are intended to provide public transparency, consistent with the protection of classified information and other applicable law,” the July 1 statement said.

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Meanwhile, the Department of Defense issued a new directive outlining how it will obtain and make use of public information. See DoD Access to and Use of Publicly Available Information (PAI), DoD Directive 3115.18, June 11, 2019.

The directive said that DoD will collect public information in an open and transparent way — except when it is authorized to employ deception.

As a general matter, “DoD personnel will not use false assertions of identity or organizational affiliation for official purposes to access, acquire, or use PAI without complying with cover policies . .  and other DoD guidance and issuances on the use of cover,” the directive said.

“Cover” is defined as “The concealment of true identity or organizational affiliation with assertions of false information as part of, or in support of, official duties to carry out authorized activities or lawful operations.”

Administrative Subpoenas for Leak Investigations?

The possibility of using subpoenas to compel testimony from reporters or others in leak investigations outside of a criminal prosecution is being floated by the Intelligence Community Inspector General.

But such authority would have to be granted legislatively, and so far there is no sign that Congress is considering doing so.

The government’s interest in using administrative subpoenas was mentioned in the latest semi-annual report of the IC Inspector General:

 “In March 2019, [IC] Inspector General Atkinson and the Inspector General of the Department of Justice met a second time with the President’s Intelligence Advisory Board to discuss, among other things, legislative approaches to reduce unauthorized disclosures, including testimonial subpoena authority for OIGs to compel non-agency individuals to provide testimony in administrative investigations.” (page 19)

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Administrative investigations of leaks may occur before a criminal proceeding has been initiated, or after the Justice Department has declined criminal prosecution, as it often does. (In 2017-2018 there were over 200 referrals to the Justice Department of suspected criminal leaks, but only a handful of actual prosecutions ensued.)

As an alternative to criminal prosecution, administrative investigations can result in punishment of suspected leakers in the form of loss of security clearance, termination of employment, or monetary penalties.

In a criminal case, prosecutors can subpoena witnesses such as reporters and seek to compel their testimony. In the case of accused leaker Jeffrey Sterling, an appeals court concluded in a 2013 opinion that the government was within its rights to subpoena reporter James Risen. Although Risen did not ultimately testify in that case, the ruling authorizing a subpoena for a reporter in such circumstances remains in place after the US Supreme Court declined to review it.

But in internal administrative leak investigations, subpoena authority is not currently available (outside of espionage investigations involving a foreign power). It is this power which the IC Inspector General has now raised for discussion.

Trump Demotes DNI to Empower AG Barr

President Trump issued a memorandum last week that transfers to the Attorney General the authority of the Director of National Intelligence to declassify intelligence information concerning the 2016 election.

The memorandum effectively amends Executive Order 13526 on classification on national security information, but in a highly customized way: It applies only to Attorney General William Barr (not any successors) and only to the investigation of the 2016 presidential campaigns. The memorandum was published in the Federal Register today.

Even so, the move represents a functional demotion of the Director of National Intelligence and a partial transfer of his authority to the Attorney General.

Executive Order 13526 gave sweeping authority over declassification of intelligence information to the DNI, who was authorized to “declassify, downgrade, or direct the declassification or downgrading of information or intelligence relating to intelligence sources, methods, or activities.” (sect. 3.1c)

The new presidential memorandum adopts the same language but modifies the provision to state that it is Attorney General Barr who may now “declassify, downgrade, or direct the declassification or downgrading of information or intelligence that relates to the Attorney General’s review.”

No rationale for the change was provided, though it was understood to support the Attorney General’s investigation into what he called U.S. government “spying” on the Trump campaign.

Senator Mark Warner (D-VA) warned that the move threatened to politicize intelligence. “Selectively declassifying sources and methods in order to serve a political agenda will make it harder for the intelligence community to do their jobs protecting this country from those who wish to do us harm,” he said.

For his part, DNI Dan Coats said that “I am confident that the Attorney General will work with the IC in accordance with the long-established standards to protect highly-sensitive classified information that, if publicly released, would put our national security at risk.”

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There is some precedent for overriding the judgment of the DNI concerning the protection of sources and methods.

A 1999 decision of the Justice Department Office of Legal Counsel concluded that the presidentially-established Interagency Security Classification Appeals Panel could declassify intelligence information over the objections of the Director of Central Intelligence.

While it is true that the DCI, and now the DNI, is obliged by the National Security Act to protect intelligence sources and methods from unauthorized disclosure, the Director’s authority in this area is not absolute or exclusive.

Specifically, “If the President concludes that information concerning intelligence sources and methods should not be classified, the disclosure of such information simply is not ‘unauthorized’ within the meaning of the [National Security Act],” wrote Randolph D. Moss of the Office of Legal Counsel in his 1999 opinion.

Still, this OLC conclusion may not be correct (said a non-lawyer) because “declassification” is not the same as “disclosure.” Even intelligence information that is declassified or unclassified may still be, and often is, protected from public disclosure by the DNI under the provisions of the National Security Act.

The new presidential memorandum does not address the question of disclosure at all.

DNI: IC Should be “Model Employer” for Disabled Persons

New policy guidance from the Director of National Intelligence directs the U.S. intelligence community to provide equal opportunities “for the hiring, placement, and advancement of qualified individuals with disabilities,” as required by law.

“IC elements shall be model employers for individuals with disabilities,” wrote DNI Dan Coats. See Employment of Individuals with Disabilities, Intelligence Community Policy Guidance 110.1, February 26, 2019.

As of 2017, 7.9% of the U.S. intelligence community workforce was made up of persons with disabilities, compared to an 8.99% disability rate in the federal workforce and 17.5% in the overall civilian labor force. (A disability is “a physical or mental impairment that substantially limits one or more of the major life activities of an individual.”)

“Persistent workplace challenges continue to exist for women, minorities, and persons with disabilities in the IC. Unfortunately, the IC’s aggressive efforts to improve diversity and inclusion are not having their intended effects,” according to a 2017 ODNI report on the subject (that pre-dated the appointment of Gina Haspel as CIA Director).

While many of the challenges facing disabled persons are generic and widespread, some are unique to intelligence agencies.

“Employees with disabilities may… be specifically challenged by sitting for a polygraph. Participants expressed concern that certain disabilities, such as mobility limitations or respiratory impairments, may impact polygraph testing results.”

The premise of the declared IC policy on diversity and inclusion is that it benefits the country by enabling the employment of qualified persons who would otherwise be excluded from the workforce or denied full participation. Of all disfavored groups, disabled persons reflect the broadest cross section of the public.

“A disability can happen to anyone, at any point in life, and is the one variable that crosses all demographic lines,” the ODNI study said. “Greater diversity exists among persons with disabilities than for any other demographic group, but they may be the least understood by society at large, and by extension, by decision makers and the general workforce within the IC.”