New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges, May 5, 2014

Unauthorized Aliens in the United States: Policy Discussion, May 8, 2014

Apprehensions of Unauthorized Migrants along the Southwest Border: Fact Sheet, May 2, 2014

FEMA’s Disaster Relief Fund: Overview and Selected Issues, May 7, 2014

Central America Regional Security Initiative: Background and Policy Issues for Congress, May 6, 2014

Libya: Transition and U.S. Policy, May 8, 2014

Ukraine: Current Issues and U.S. Policy, May 8, 2014

U.S. Special Operations Forces (SOF): Background and Issues for Congress, May 8, 2014

Jordan: Background and U.S. Relations, May 8, 2014

Armed Conflict in Syria: Overview and U.S. Response, May 5, 2014

Federal Holidays: Evolution and Current Practices, May 9, 2014

Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony, May 8, 2014

 

All employees of the Office of the Director of National Intelligence are required to obtain authorization before disclosing any intelligence-related information to the public.

“All ODNI personnel are required to submit all official and non-official information intended for public release for review,” says ODNI Instruction 80.04 on “Pre-publication Review of Information to be Publicly Released.”  The Instruction was newly updated on April 8.

Like the new Intelligence Community policy on Media Contacts (Intelligence Directive Bars Unauthorized Contacts with News Media, Secrecy News, April 21), the ODNI pre-publication review policy does not distinguish between classified and unclassified information.

“The goal of pre-publication review is to prevent the unauthorized disclosure of information,” the Instruction says, whether the information is classified or not. It applies broadly to any information generated by ODNI “that discusses operations, business practices, or information related to the ODNI, the IC, or national security.”

The Instruction is binding on current and former ODNI employees, as well as contractors.

Since it pertains to “information” and not just documents, the Instruction also requires employees to gain approval prior to participation in “open discussion venues such as forums, panels, round tables, and question and answer sessions.”

“Pre-publication review must be conducted before any uncleared personnel can receive the information,” the Instruction states.

In order to support a request for pre-publication review, requesters are advised to provide unclassified sources for their proposed disclosures. “ODNI personnel must not use sourcing that comes from known leaks, or unauthorized disclosures of sensitive information.”

Official disclosures by ODNI employees must be reviewed by the ODNI Public Affairs Office to ensure that they are “consistent with the official ODNI position or message.” (Unofficial disclosures, such as privately-authored books, op-eds or blogs are exempt from this consistency requirement.)

The pre-publication review requirement is not optional.

“Failure to comply with this Instruction may result in the imposition of civil and administrative penalties, and may result in the loss of security clearances and accesses.”

The newly updated Instruction will no doubt inhibit informal contacts between ODNI employees and members of the general public, as it is intended to do. Whether that is a wise policy, and whether such indiscriminate barriers to the public serve the real interests of ODNI and the U.S. intelligence community, are separate questions.

Update: ODNI recently published a heavily redacted version of Intelligence Community Directive 304 on “Human Intelligence” (ODNI Seeks to Obscure CIA Role in Human Intelligence, Secrecy News, April 28).

Those redactions were a mistake, an ODNI official said yesterday. The full, unredacted text of the Directive was posted this week on the ODNI website.

For many years, the Justice Department’s annual report to Congress on the use of the Foreign Intelligence Surveillance Act was a primary source of public information on intelligence surveillance activity and on the workings of the Foreign Intelligence Surveillance Court. Today, that is less true than ever before.

The latest annual report, released by DOJ yesterday, indicated that in 2013 the Government submitted 1,655 applications for electronic surveillance, physical search or both. Of the 1,588 applications that included electronic surveillance, none were denied by the Court. But that hardly provides an accurate sense of the scope or the scale of intelligence surveillance activity.

The significance of this information, and other statistical data on access to “business records” and the use of national security letters, has receded in the wake of the far more substantial disclosures of the post-Snowden era. For example, we now know that the bland term “business records” extends in principle to everyone’s telephone call records.

In truth, the annual DOJ reports to Congress were never very informative, and they never provided useful data that could inform public policy in a practical way. They represented a facade of transparency with little or no real content. Today, they are practically irrelevant.

More informative and altogether more important is the new website of the Foreign Intelligence Surveillance Court, which has recently been revamped.

Updated below

The Office of the Director of National Intelligence is attempting to conceal unclassified information about the structure and function of U.S. intelligence agencies, including the leading role of the Central Intelligence Agency in collecting human intelligence.

Last month, ODNI issued a heavily redacted version of its Intelligence Community Directive 304 on “Human Intelligence.” The redacted document was produced in response to a Freedom of Information Act request from Robert Sesek, and posted on ScribD.

The new redactions come as a surprise because most of the censored text had already been published by ODNI itself in an earlier iteration of the same unclassified Directive from 2008. That document has since been removed from the ODNI website but it is preserved on the FAS website here.

Meanwhile, the current version of the Directive — without any redactions — is also available in the public domain, despite the attempt to suppress it. (Thanks to Jeffrey Richelson for the pointer.)

A comparison of the redacted and unredacted versions shows that ODNI is now seeking to withhold the fact that the Director of the Central Intelligence Agency functions as the National HUMINT Manager, among other things.

ODNI also censored the statement that the Central Intelligence Agency “Collects, analyzes, produces, and disseminates foreign intelligence and counterintelligence, including information obtained through clandestine means.”

Among intelligence agencies, in my experience, ODNI is usually the most responsive to Freedom of Information Act requests, while CIA leads the competition to be the least helpful and cooperative. In this case, it appears that CIA’s pattern of defiance overcame ODNI’s better judgment.

Update, May 8, 2014: The redactions to ICD 304 were a mistake, an ODNI official said. The full, unredacted text of the Directive was posted May 6 on the ODNI website.

The Director of National Intelligence has forbidden most intelligence community employees from discussing “intelligence-related information” with a reporter unless they have specific authorization to do so, according to an Intelligence Community Directive that was issued last month.

“IC employees… must obtain authorization for contacts with the media” on intelligence-related matters, and “must also report… unplanned or unintentional contact with the media on covered matters,” the Directive stated.

The new Directive reflects — and escalates — tensions between the government and the press over leaks of classified information. It is intended “to mitigate risks of unauthorized disclosures of intelligence-related matters that may result from such contacts.” See Intelligence Community Directive 119, Media Contacts, March 20, 2014.

Significantly, however, the new prohibition does not distinguish between classified and unclassified intelligence information. The “covered matters” that require prior authorization before an employee may discuss them with a reporter extend to any topic that is “related” to intelligence, irrespective of its classification status.

The Directive prohibits unauthorized “contact with the media about intelligence-related information, including intelligence sources, methods, activities, and judgments (hereafter, ‘covered matters’).”

If an employee’s contact with the media involves an unauthorized disclosure of classified information, then he could be subject to criminal prosecution. But even if classified information were not communicated to the reporter, the Directive indicates, violation of the new policy “at a minimum… will be handled in the same manner as a security violation.”

“IC employees who are found to be in violation of this IC policy may be subject to administrative actions that may include revocation of security clearance or termination of employment,” the Directive states.

The new Directive creates an anomalous situation in which routine interactions that are permissible between an intelligence employee and an ordinary member of the public are now to be prohibited if that member of the public qualifies as “media.”

So under most circumstances, an intelligence community employee is at liberty to discuss unclassified “intelligence-related information” with his or her next-door neighbor. But if the neighbor happened to be a member of the media, then the contact would be prohibited altogether without prior authorization.

Meanwhile, the Directive defines membership in “the media” expansively. It is not necessary to be a credentialed reporter for an established news organization. It is sufficient to be “any person… engaged in the collection, production, or dissemination to the public of information in any form related to topics of national security….”

Moreover, even approved contacts are to be formally documented for future review. “IC elements should ensure their records on media contacts are sufficient to support executive and legislative branch oversight requirements.”

Essentially, the Directive seeks to ensure that the only contacts that occur between intelligence community employees and the press are those that have been approved in advance. Henceforward, the only news about intelligence is to be authorized news.

The IC policy bears some resemblance to a proposal that was advanced by the Senate Intelligence Committee in 2012, and then withdrawn in response to widespread criticism.

The Senate’s initial version of the FY2012 intelligence authorization act (Section 506) would have required that only specifically designated officials would be permitted to provide “background or off-the-record information regarding intelligence activities to the media.”

That provision would “lead to a less-informed debate on national security issues, by prohibiting nearly all intelligence agency employees from providing briefings to the press, unless those employees give their names and provide the briefing on the record,” said Sen. Ron Wyden at the time.

“I haven’t seen any evidence that prohibiting the intelligence agencies from providing these briefings would benefit national security in any way, so I see no reason to limit the flow of information in this manner,” he said then.

Likewise, there is no particular reason to think that routine interactions between intelligence agency employees and reporters — especially on unclassified matters — pose any kind of threat to national security, or that limiting them will offer any benefit. However, the new policy is likely to be effective in reducing the quality, independence and critical content of intelligence-related information that is available to the press and the public.

“I think we are going to make headway over the next few weeks on media leaks,” said outgoing National Security Agency Director Gen. Keith Alexander at an event on March 4. At the time, it was unclear what he was referring to, but he might have had the March 20 Intelligence Community Directive 119 in mind.

 

In 1989, the Department of State published a notorious volume that purported to document U.S. foreign policy towards Iran in the early Eisenhower Administration. The volume triggered an avalanche of criticism because it omitted any mention of the CIA’s role in a 1953 covert action that helped overthrow the government of Iran.

Later this year, after the passage of more than two decades, the State Department will rectify that error by publishing a supplemental volume of declassified documents in its Foreign Relations of the United States (FRUS) series that is expected to fill in the missing pieces of the documentary record of the 1953 coup against the Mossadeq government of Iran.

The publication of the 1989 Iran volume was a milestone in the history of U.S. government secrecy that prompted widespread outrage and ridicule, but it also inspired remedial efforts that had some lasting impact.

The episode was recounted in detail in an impressive history of the FRUS series that was also published by the State Department last year (Chapter 10).

“FRUS historians could have been more assertive in their efforts to promote greater openness in the 1980s,” the FRUS history candidly observed. “They should have recognized that the Iran volume was too incomplete to be published without damaging the series’s reputation, consulted with stakeholders across the government and the academic community, and devised alternatives to releasing an unacceptable volume.”

Ironically, the defects in the official Iran history generated more broad public attention to questions of diplomatic history than the subject had received for many years.

“The ostensibly authoritative” FRUS volume on Iran “is ‘Hamlet’ without the Prince of Denmark — or the ghost,” the New York Times editorialized in 1990.

“We are poisoning the wells of our historical memory,” wrote Senator Daniel P. Moynihan in the New York Review of Books at the time. “The secrecy system has gone loony.”

On the plus side, the scandal over the Iran history galvanized efforts by historians and others to demand a higher standard of fidelity in official history. Those efforts led directly to the enactment of a 1991 statute dictating that the Foreign Relations of the United States series shall provide “a thorough, accurate, and reliable documentary record of major United States foreign policy decisions and significant United States diplomatic activity.”

The forthcoming publication of the FRUS retrospective volume on Iran was noted in a new annual report from the State Department Advisory Committee on Historical Diplomatic Documentation.

It was confirmed by Historian of the State Department, Dr. Stephen Randolph, who told Secrecy News that the volume was expected to be released this summer, barring unforeseen events, along with another long-deferred collection on Chile, 1969-1973.

An initial selection of recently declassified CIA records on the 1953 coup with related background material was posted last year by the National Security Archive.

“The issue is more than academic,” wrote the Archive’s Malcolm Byrne. “Political partisans on all sides, including the Iranian government, regularly invoke the coup to argue whether Iran or foreign powers are primarily responsible for the country’s historical trajectory, whether the United States can be trusted to respect Iran’s sovereignty, or whether Washington needs to apologize for its prior interference before better relations can occur.”

 

Last week the Senate Intelligence Committee voted to submit the 480-page executive summary, findings and conclusions of its five-year investigation into the post-9/11 CIA Detention and Interrogation Program for declassification review. But in an obvious conflict of interest, the review is expected to be performed by the CIA itself.

“The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen,” said Sen. Dianne Feinstein, the chair the Senate Intelligence Committee, in an April 3 statement. “This is not what Americans do.”

The standard process for declassification therefore puts the CIA in the awkward and untenable position of deciding whether to enable (or to prevent) the release of information that portrays the Agency itself, or some of its personnel, as having engaged in behavior that was brutal, lawless, and unaccountable.

Instead, it is the White House, not the CIA, that should lead the declassification process, said Sen. Feinstein, as reported today by McClatchy Newspapers.

“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” Sen. Feinstein wrote. (Feinstein: CIA should not lead declassification review of report about interrogation tactics by Ali Watkins, McClatchy, April 8).

However, it may not be possible to exclude CIA from the declassification process altogether, since it was CIA that generated and classified most or all of the information at issue. While the President certainly has the authority to declassify the report, the White House would be unlikely to possess the detailed knowledge of the underlying records that would be needed to do so independently.

But there are ways to minimize and counteract CIA’s conflict of interest in declassification.

First of all, the Senate Intelligence Committee will be in a position to make its own judgment as to the validity of any CIA redactions of the report. Unlike the typical FOIA requester who pursues a document he has never seen, the Senate Committee knows exactly what is in the report, which it produced. If CIA moves to withhold information in ways that are frivolous, questionable or unfounded in genuine national security concerns, the Committee will recognize that immediately and will be able to elevate those specific disagreements with the CIA to the White House for resolution.

Another possible option would be for the Senate Committee to engage the services of the Public Interest Declassification Board (PIDB).

That Board’s statutory purpose is, among other things, “To review and make recommendations to the President in a timely manner with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records.”

While the PIDB, which is made up of non-governmental personnel, cannot declassify anything on its own authority, it could serve to backstop the regular declassification process with an independent perspective, and could also provide political cover for the President to overrule an unwarranted refusal to declassify.

In 2006, members of the Senate Intelligence Committee asked the Public Interest Declassification Board to review an Administration decision to classify portions of two Committee reports on prewar intelligence on Iraq. At the time, the Board said it doubted that it could carry out the review without White House authorization.

So Senators Ron Wyden and Russ Feingold introduced legislative language to clarify that the Board is authorized to review declassification proposals — or evaluate agency refusals to declassify — at the initiative of a congressional committee of jurisdiction. Their measure was enacted into law in the FY 2010 Intelligence Authorization Act.

While this function has never yet been performed by the Board, it remains available to Congress at its discretion.

“The classification system exists to protect national security, but its outdated design and implementation often hinders that mission,” wrote PIDB chair Amb. Nancy E. Soderberg in a November 2012 letter to President Obama transmitting a Board report.

“The system is compromised by over-classification and, not coincidentally, by increasing instances of unauthorized disclosures. This undermines the credibility of the classification system, blurs the focus on what truly requires protection, and fails to serve the public interest. Notwithstanding the best efforts of information security professionals, the current system is outmoded and unsustainable; transformation is not simply advisable but imperative,” she wrote.

After the Central Intelligence Agency refused to release records requested under the Freedom of Information Act in softcopy format, requester Jeffrey Scudder filed a lawsuit against the Agency demanding that it comply, and he received a rather sympathetic hearing from the judge. (CIA’s Refusal to Release Softcopy Records Challenged in Court, Secrecy News, March 17, 2004).

Yesterday the parties to the dispute reported that they found “a creative solution… that will render the issue moot.”

“Defendant [CIA] has agreed to provide the 419 records that Plaintiff has requested in an electronic format by putting PDF copies of the requested records on its website,” where they can be downloaded at will. CIA will also refund the charges it demanded for printing out the electronic documents.

While this seems like a satisfactory solution for requester Scudder, it leaves the underlying problem, which is also faced by other requesters, unresolved.

The decision by the Central Intelligence Agency to terminate public access to its translations of foreign news reports at the end of 2013 continues to reverberate among frustrated former consumers.

The translations had been performed by the Open Source Center (OSC) at CIA, and marketed to subscribers through the NTIS World News Connection (WNC). Their absence has left a felt void, particularly since the daily products had been continuously available to the public (by paid subscription) since 1974.

“The first three months of 2014 have seen so many crucial international stories that current WNC Daily Report public access could have helped to illuminate,” said one disappointed subscriber. “OSC short-sightedness is mind-boggling.”

An effort to reverse the CIA move and to restore public access is beginning to take shape, but the prospects for success are uncertain.

Besides translations, the Open Source Center also produces original analysis of open sources. Much of this material is unclassified and could be released. Occasionally, some of it leaks.

In a marvelous piece described (but not disclosed) by Michael Rubin in Commentary on March 19, the Open Source Center reportedly performed a critical analysis of the music that was performed at the Sochi Olympics and Paralympics.

“The Open Source Center’s Russia analysts… observed that during the Olympic Games’ closing ceremonies, Russian authorities played an instrumental version of a song that called for Alaska’s return to Russia.”

A Wall Street Journal op-ed by Samantha Ravich and Carol Haave praised the value of open source intelligence and called for new investment in this area (“Nukes and ‘Snowden-Proof’ Intelligence,” March 17).

“Crafting new analytic methods for acquiring and exploiting… open-source scientific literature is crucial for understanding the pace, scale and scope of other countries’ nuclear-weapons aspirations,” they wrote, while open source intelligence “can often give us better insight into foreign leaders’ motivation and intent” than some other modes of collection and analysis.

But today’s CIA has proven to be an unreliable custodian of the open source intelligence enterprise, having deprived the public of access to its products for the first time in four decades. If there is ever to be a resurgence of open source intelligence, it probably ought to be managed and housed far from CIA.

The Intelligence Community Whistleblower Protection Act (ICWPA) has rarely been relied upon by intelligence agency whistleblowers, according to a newly released 2009 report from the Office of the Director of National Intelligence Inspector General.

During the ten year period after the Act came into effect in January 1999, intelligence agency Offices of Inspector General (OIGs) said that only ten whistleblower complaints had been filed.

“According to the questionnaire responses we received, since 1 January 1999, 4 IC OIGs received a total of 10 ICWPA complaints,” the October 2009 report said.

“The CIA and DoD OIGs received four complaints, and the OIGs for DOJ and ODNI each received one complaint.”

“Of the 10 complaints, 3 were deemed by the CIA and DOD OIGs to be ‘urgent concerns,’ as defined by the ICWPA, and all 3 were found to be credible. The CIA and DOD OIGs notified Congress of the three complaints, as required by the statute.”

“Of the remaining six complaints, all… were deemed ‘not credible’ by the respective OIGs.”

“Of the 10 complaints received by the IC OIGs during the 10-year reporting period, 3 of them — 2 from CIA and 1 from DoJ — included allegations of reprisal.”

“However, the CIA OIG found no evidence of reprisal when it investigated these allegations. The DoJ OIG referred the complaint to the DoJ Office of Professional Responsibility, which investigated the matter and found no evidence of reprisal.”

“The OIGs also reported that none of the complaints submitted to the IC OIGs was deemed fraudulent or made in ‘bad faith’,” the report said. But the contents of the complaints and any consequences resulting from them were not described in the report.

See the Report to Congress on the use of the Intelligence Community Whistleblower Protection Act submitted by ODNI Inspector General Roslyn A. Mazer, October 19, 2009.

The creation of an Intelligence Community-wide Inspector General in 2010 included establishment of a new IC IG Hotline, which “provides a confidential means for IC employees, contractors, and the public to report fraud, waste, and abuse.”

During a recent six-month period, the IC IG internal Hotline received 70 contacts from IC personnel as well as 77 contacts from the general public, according to a March 2013 semi-annual report. The results of those contacts, i.e. whether they prompted an investigation and corrective action, were not reported.

By comparison, the Department of Defense Hotline received more than 15,000 contacts during a six-month period ending September 2013. The DoD Inspector General opened 1,341 cases as a result.

DoD has a budget and a workforce that are roughly an order of magnitude larger than those of the Intelligence Community, so the two cannot be directly compared.

But it appears that whistleblower reporting of suspected waste, fraud and abuse has been institutionalized and routinized to a far greater extent in the Defense Department than within the Intelligence Community, where it remains uncommon.

The Central Intelligence Agency may have violated the Speech or Debate clause of the U.S. Constitution by performing an unauthorized search of Senate Intelligence Committee computers, according to an analysis by the Congressional Research Service.

The Speech or Debate clause (in Article I, Section 6, Clause 1 of the Constitution) generally immunizes members of Congress from liability for actions performed in the course of their legislative duties.

But it also provides privileged protection for congressional documents against compulsory or involuntary disclosure. CIA may have unconstitutionally violated that privilege.

As detailed by Sen. Dianne Feinstein in a March 11 floor statement, the CIA carried out a search of Committee computers without notice or consent in an attempt to determine whether or how the Committee had obtained unauthorized access to a particular record concerning the CIA’s post-9/11 prisoner interrogation program.

“The search involved not only a search of documents provided by the committee to the CIA but also a search of the stand-alone and walled-off committee network drive containing the committee’s own internal work product and communications,” Sen. Feinstein said. The search took place in a CIA-leased facility where Committee staff were working.

“According to [CIA Director] Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the internal Panetta review [a CIA document which CIA had not intended to release to the Committee]. The CIA did not ask the committee or its staff if the committee had access to the internal Panetta review or how we obtained it.”

“Instead, the CIA just went and searched the committee’s computers,” Sen. Feinstein said.

Through the Speech or Debate clause, the Constitution “has imposed [limitations] on executive branch attempts to interfere with legislative activities, including Congress’s authority to conduct oversight and investigations,” the new CRS analysis explained.

The Speech or Debate clause has been interpreted variously by two appellate courts, with different implications for the current circumstance, CRS said. The CIA search of Senate Intelligence Committee computers “could arguably be viewed as violating the non-disclosure privilege recognized by the court in Rayburn,” CRS said, referring to a 2007 DC Circuit case involving an FBI search of the House office of Rep. William Jefferson.

However, under a different reading of the Speech or Debate clause from a Ninth Circuit opinion in a case called US v. Renzi, the potential CIA violation “is less clear,” the CRS memorandum cautioned.

See Who’s Overseeing Whom? The CIA, SSCI and the Speech or Debate Clause, CRS Legal Sidebar, March 13, 2014.

In any event, the possible violation by the CIA of the non-disclosure privilege provided by the Speech or Debate clause is not legally actionable at this time, CRS said.  Rather, it “would only come into play in the event of a subsequent legal proceeding.”

On Friday, CIA Director John Brennan sent an email message to CIA employees containing what was understood to be a conciliatory signal towards Congress. “It is appropriate for the Intelligence Committees in the Senate and the House to carry out their oversight responsibilities thoroughly and comprehensively, and CIA needs to do all it can to assist the Committees in that regard,” Director Brennan wrote.

“Regarding the SSCI’s RDI [rendition, detention and interrogation] report, I want to assure you that the entire CIA leadership team is committed to addressing any outstanding questions or requests from SSCI members so that the Committee can complete its work and finalize the report as soon as possible.”

“I expect the Committee will submit at least some portion of the report to the CIA for classification review, and, if that happens, CIA will carry out the review expeditiously,” he wrote in the March 21 email message (published by Politico).

By leaking classified intelligence documents, Edward Snowden transformed public awareness of the scale and scope of U.S. intelligence surveillance programs. But his actions are proving to be no less consequential for national security secrecy policy.

“These leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy,” said Robert S. Litt, General Counsel at the Office of the Director of National Intelligence. He spoke at a March 18 Freedom of Information Day program sponsored by the Collaboration on Government Secrecy at American University Washington College of Law.

Mr. Litt made it clear that he did not approve of the Snowden leaks, which he said were unlawful and had “seriously damaged our national security.” Yet he stressed that the leaks have also prompted a reconsideration of previously accepted patterns of secrecy.

“We have had to reassess how we strike the balance between the need to keep secret the sensitive sources, methods and targets of our intelligence activities, and the goal of transparency with the American people about the rules and policies governing those activities.”

“One lesson that I have drawn from the recent events… is that we would likely have suffered less damage from the leaks had we been more forthcoming about some of our activities, and particularly about the policies and decisions behind those activities,” Mr. Litt said.  (Director of National Intelligence James Clapper made the same point to Eli Lake of the Daily Beast last month.)

“Going forward, I believe that the Intelligence Community is going to need to be much more forward-leaning in what we tell the American people about what we do,” Mr. Litt said. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected. And we need to move beyond the mindset of merely reacting to formal requests that we make information public, to a mindset of proactively making available as much information as we can, consistent with the need to protect sources and methods.”

“Greater disclosure to the public is necessary to restore the American people’s trust that intelligence activities are not only lawful and important to protecting our national security, but that they are appropriate and proportional in light of the privacy interests at stake. In the long run, our ability to protect the public requires that we have the public’s support,” Mr. Litt said.

While Mr. Litt’s remarks conveyed an overall message of beneficence, responsiveness, and good citizenship, they also had some peculiar features.

It is disconcerting to realize that the reassessment of classification policy described by Mr. Litt was not prompted by the diligent exercise of congressional oversight or by judicial review or by ordinary advocacy. Rather it was explicitly inspired by the Snowden leaks, which Mr. Litt described as “criminal.” The upshot is that leaks emerge as a uniquely powerful tool for shaping intelligence classification policy, while conventional checks and balances appear all but irrelevant by comparison.

Moreover, the purpose of the newfound push for greater transparency seems to be instrumental, not principled. In other words, it is driven by tactical considerations, not by statutory requirements or any other objective norm.

“I strongly believe that the best way to prevent the damage that leakers can cause is by increased transparency on our part,” Mr. Litt said. “Transparency can both lessen the incentive for disaffected employees to disclose our activities improperly, and provide the public appropriate context to evaluate leaks when they occur.”

That implies that what is needed is only as much transparency as it takes to achieve these imprecise and transient goals. It is a unilateral move that can be unilaterally reversed.

And then there is the fact that Mr. Litt’s rethinking of classification policy implies no new institutional reforms or externally-imposed constraints. Instead, the very same people who have classified too much up to now are suddenly expected to change course and to disclose more. It is not immediately clear how or why that would happen.

“There is no question that overclassification of information is a genuine problem,” Mr. Litt said. “So how do we deal with the problem of overclassification? I think that there are three principal steps we can take.”

“The first is to change the culture. We need high-level management emphasis on the problem of overclassification,” he said. To his credit, Mr. Litt has helped provide such emphasis.

“Second, we need to continue our efforts at proactive transparency– at reviewing information that we have historically protected to see whether, in fact, the overall public interest would better be served by releasing the information.” Significantly, however, he refrained from providing specific performance goals or benchmarks by which future progress could be measured.

“Finally, I think that those in the agencies who are responsible for responding to FOIA requests, and who are representing the government in FOIA litigation, need to look critically at all potentially responsive documents that are classified,” Mr. Litt said. “We should focus not on whether we can protect information, but whether we should.”

This is an interesting formulation. Most FOIA officers do not have authority to declassify records, and the adversarial nature of the FOIA process is rarely conducive to self-critical analysis of established agency policies even by more senior officials. But sometimes it is.

In 1997, the Federation of American Scientists filed suit against the CIA for release of the intelligence budget total for that year. The CIA ultimately decided that it could not defend its position of classifying the figure, according to an internal draft statement that was prepared for DCI George Tenet and released by the Clinton Library just last week.

“In order to defend this lawsuit,” the Tenet statement read, “I, as head of the Intelligence Community, would have had to sign a declaration to the court that release of the figure in question could cause serious damage to the national security. I found that, in good conscience, I could not attest to that statement.”

But such judgments are fluid and can be fleeting. Two years later, in response to another lawsuit for the 1999 budget figure, Director Tenet had no trouble declaring under oath that “Disclosure of… the total appropriation reasonably could be expected to cause damage to the national security in several ways.”

So spontaneous gestures of openness and transparency, as welcome as they may be, are imperfect substitutes for systemic change and external accountability.

News organizations have now released some 1,300 pages of classified records leaked by Edward Snowden, according to a tally by cryptome.org.  In response, US intelligence agencies have declassified and disclosed approximately twice that many.

“Our commitment to increased transparency will continue,” Mr. Litt said.