Even when the Central Intelligence Agency possesses a releasable document in a softcopy format, the Agency typically refuses to release the softcopy version in response to Freedom of Information Act requests, and insists on providing a hardcopy version of the document instead.

A federal judge said last week that that may be a violation of law.

The issue arose in a FOIA lawsuit seeking electronic copies of 419 articles from the in-house CIA journal Studies in Intelligence. The lawsuit was brought by Jeffrey Scudder, an information technology specialist who has worked in the intelligence community for 23 years.

Mr. Scudder told the court that he has detailed knowledge of CIA information systems and capabilities. In his FOIA requests, he was able to inform the CIA FOIA staff “as to where within the [CIA] computer systems the electronically stored documents [that he is requesting] are located.”

However, CIA refused to release the documents in the requested electronic format. Instead, the Agency proposed to print them out and to release them only in hard copy, ostensibly for security reasons. But this practice may be inconsistent with the requirements of the FOIA.

“Congress anticipated that recalcitrant agencies would resist being responsive to requesters’ format choices,” wrote Judge Beryl A. Howell of the DC District Court last week, and so Congress required agencies to make “reasonable efforts” to accommodate requesters’ preferences.

“Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard.”

“The defendant [CIA] avers that if it were ordered to honor the plaintiff’s [FOIA] request [for soft copy records], it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media,” Judge Howell summarized.

In fact, she wrote in her March 12 opinion, “Under this Rube-Goldbergian process, the same document, even if unclassified, must be printed from the defendant’s classified system in paper form at least twice…, and rescanned into the same classified system at least twice….”

Not only that, but CIA would charge the requester extra for its trouble. “As a result of this process, the defendant [CIA] asserts that the cost of electronic production to the plaintiff would be higher than that of producing the records in paper format, since the defendant would incur all of the costs associated with the paper production as well as the additional costs of re-scanning the printed responsive records, and the cost of any removable media provided to the plaintiff.”

But all of that is ridiculous, said Mr. Scudder, who contended that CIA is attempting to “frustrate [the] core purpose [of the FOIA] through administrative gimmicks designed to impose unreasonable financial burdens upon requesters.”

“The only reason CIA does not produce electronic versions of documents responsive to FOIA requests is that they choose not to do so,” said attorney Mark S. Zaid, who represents Mr. Scudder. “There is no technical reason to prevent it.”

Crucially, Judge Howell determined that “A FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

Judge Howell found that CIA’s understanding of its legal obligations and of the role of the Court was “incorrect” in various respects, and she concluded that several of its factual assertions were materially disputed.

“The plaintiff [Mr. Scudder] has, for example, alleged that he has personally used the defendant’s classified system to create a PDF file, something the defendant has stated is impossible,” Judge Howell noted.

In view of the unresolved factual disputes, and considering that “both parties allege bad faith on the part of the other,” Judge Howell refused to grant summary judgment to either side.

Instead, she granted Mr. Scudder’s motion for discovery, and the case will proceed to trial.

While the substance of the case concerns CIA’s information and FOIA practices, the Department of Justice that made its own independent decision to defend CIA’s handling of the Scudder FOIA request.  The skeptical comments voiced by Judge Howell may be understood as an implicit criticism of that Justice Department decision.

This week is Sunshine Week, an annual celebration of open government values. As it happens, however, the federal government is closed today due to snow.

Now that annual disclosure of the intelligence budget total has become routine, some legislators are seeking more transparency on intelligence spending.

As anticipated, the requested U.S. intelligence budget for Fiscal Year 2015 that was submitted to Congress this week fell below the current year’s level and continued a decline from the post-9/11 high that it reached in FY 2010.

The “base” funding request for the National Intelligence Program (NIP) for FY 2015 was $45.6 billion, while the base funding request for the Military Intelligence Program (MIP) was $13.3 billion. (“Base” funding does not include funding for “overseas contingency operations,” which is to be requested later in the year.)

By comparison, the base funding request for the NIP in FY 2014 was $48.2 billion, and the base funding request for the MIP was $14.6 billion. Additional data on intelligence budget appropriations can be found here.

An unclassified summary of the FY 2015 National Intelligence Program budget request (that was included in the overall budget request) implied that the publication of the request was a voluntary act of transparency.

“Reflecting the Administration’s commitment to transparency and open government, the Budget continues the practice begun in the 2012 Budget of disclosing the President’s aggregate funding request for the NIP,” the summary said.

In fact, however, the publication of the NIP budget request is required by law, since it was included in the FY 2010 Intelligence Authorization Act by the Senate Select Committee on Intelligence (Public Law 111-259, section 601). An ODNI news release on the budget request correctly cited the legal requirement to publicly disclose the budget request figure.

On the other hand, there is no corresponding legal requirement for the Department of Defense to publish the budget request for the Military Intelligence Program. But DoD has done so voluntarily since 2012, a move that represents a genuine reduction in official secrecy by the Obama Administration.

Even so, dozens of Congressmen say that there is still too much secrecy in intelligence spending. The Intelligence Budget Transparency Act of 2014 (HR 3855), introduced by Rep. Cynthia M. Lummis (R-WY), would require disclosure of the total budget of each of the individual 16 agencies that make up the U.S. intelligence community.

“Writing checks without any idea of where the money is going is bad policy,” said Rep. Lummis in a January 14, 2014 release. “Disclosing the top-line budgets of each of our intelligence agencies promotes basic accountability among the agencies charged with protecting Americans without compromising our national security interests.”

“The top-line intelligence budgets for America’s 16 intelligence agencies are unknown to the American taxpayer and largely unknown to the Members of Congress who represent them,” added Rep. Peter Welch (D-VT), a co-sponsor of the bill. “It’s led to dubious policies, wasted money and questionable effectiveness. Requiring the public disclosure of top-line intelligence spending is an essential first step in assuring that our taxpayers and our national security interests are well served.”

Interestingly, the bill’s 59 congressional co-sponsors include a roughly equal number of Republicans and Democrats. Republican legislators have not previously been known to favor disclosure of individual agency intelligence budgets, with the exception of the late Sen. Arlen Specter, a former chair of the Senate Intelligence Committee, who once advocated release of the NRO budget total.

A February 12 letter to President Obama asking him to release the individual agency budget figures was signed by 62 members of Congress.

Many of the classified portions of the new Department of Defense budget request were tabulated in “Read the Pentagon’s $59 Billion ‘Black Budget'” by Brandy Zadrozny, The Daily Beast, March 6.

Could Congress legally compel the executive branch to disclose classified opinions of the Foreign Intelligence Surveillance Court?  Maybe not, a new analysis from the Congressional Research Service concludes.

The CRS report — entitled “Disclosure of FISA Court Opinions: Select Legal Issues” — has little to do with FISA Court opinions in particular. It is an analysis of the overlapping authorities of the three branches of government to classify or disclose national security information.

“The central issue is the extent to which Congress may regulate control over access to national security information, including mandating that the executive branch disclose specific materials — a question not definitively resolved by the courts,” the report says.

This is not a new question, but it is usefully reviewed and summarized by the CRS report.

The issue arises because “The executive branch has argued that the Commander-in-Chief clause bestows the President with independent power to control access to national security information. As such, according to this line of reasoning, Congress’s generally broad ability to require disclosure of agency documents may be constrained when it implicates national security.”

Although no statute regulating classification has ever been ruled unconstitutional, “Congress’s power to compel the release of information held by the executive branch might have limits,” CRS said. “There may be a limited sphere of information that courts will protect from public disclosure,” just as they have exempted properly classified information in FOIA cases, and state secrets in other cases.

The unsurprising bottom line is that “proposals that allow the executive branch to first redact information from FISA opinions before public release appear to be on firm constitutional ground.” However, the CRS report said, “a proposal that mandated all past FISA opinions be released in their entirety — without any redactions by the executive branch — might raise a separation of powers issue.”

All of this may seem academic and politically inapt since there are no active proposals in Congress to compel public release of FISA court opinions that are completely unreviewed or unredacted.

In fact, Congress has arguably been derelict in failing to press more assertively for release of legal rulings of the FISA court, and for disclosure of the general contours of the telephony bulk collection program. Had Congress forcefully required the publication of such information, much of the angst and turmoil of the past nine months that resulted from the Snowden disclosures might have been avoided.

The new CRS report has a couple of other noteworthy omissions.

It does not mention the authority claimed by the congressional intelligence committees to publicly disclose classified information without executive branch approval. (See Section 8 of Senate Resolution 400 of the 94th Congress, 1976.)  Though this authority has never yet been exercised, it remains available in principle.

The report also does not mention some recent instances when Congress has successfully compelled executive branch declassification while also navigating around potential constitutional obstacles.

So, for example, the Senate Intelligence Committee enacted a requirement in the FY 2010 Intelligence Authorization Act (Section 601) that the executive branch must disclose the annual budget request for the National Intelligence Program when the annual budget is submitted. Previously, the intelligence budget request had always been classified information. To save constitutional appearances and assuage the concerns of executive branch lawyers, the Act did include a provision for the President to waive the requirement on national security grounds — but he has never yet done so.

Last week, the Electronic Privacy and Information Center obtained copies of declassified Justice Department reports on the use of pen registers and trap and trace devices under the Foreign Intelligence Surveillance Act from 2000 to 2013.

The National Reconnaissance Office (NRO), the agency that builds and operates U.S. intelligence satellites, frequently makes mistakes when it classifies national security information, according to an assessment performed last year by the NRO Inspector General.

“From the classified documents we reviewed at NRO headquarters, 114 of 134 documents contained classification errors,” the IG report said.

Agency classification officials “lack sufficient knowledge of classification principles and procedures necessary to perform their duties,” the NRO Inspector General found. “One OCA [original classification authority] had almost no knowledge of his responsibilities.”

“Because of the lack of full compliance in multiple areas, the NRO is susceptible to the risk of persistent misclassification,” the IG said.

The IG report was performed in response to the “Reducing Over-Classification Act of 2010,” which required the Inspectors General of all agencies that classify information to evaluate their classification programs. A copy of the report was obtained under the Freedom of Information Act by the GovernmentAttic.org web site.

Most of the classification errors discovered by the Inspector General are administrative rather than substantive. Like other IG evaluations conducted under the Reducing Over-Classification Act, the NRO Inspector General review does not allow for the possibility that an agency could be in full compliance with classification rules and nevertheless be overclassifying information.

Instead, the IGs have focused on errors in marking documents, failures to specify proper authorities or to cite responsible officials, and similar defects in conformity with established rules.

Still, these are not necessarily trivial failures. Between 2005 and 2012, for example, NRO improperly exempted records from automatic declassification at 25 years when it had no authority to do so, the IG said.

The Inspector General reviewed NRO classification guides (which dictate the classification levels of particular items of information) “and we found that all but one of the 62 guides had classification errors.”

Puzzlingly, the Inspector General also reported that NRO “has not conducted timely reviews [of] its security classification guides” and that “three of the 62 SCGs had not been reviewed within five years.”

This finding appears to be inconsistent with a 2012 NRO report which affirmed that all of its security classification guides — of which there were 67, not 62 — had been reviewed in response to the Fundamental Classification Guidance Review. An explanation of the inconsistency was not immediately available.

NRO officials “non-concurred” with the findings and conclusions of the Inspector General report.

The report contains “numerous sensationalized, exaggerated and misleading statements,” wrote A. Jamieson Burnett, the director of the NRO Office of Security and Counterintelligence.

Other previously disclosed IG reports issued in response to the Reducing Over-Classification Act addressed classification programs in the Department of Defense, Department of Justice, Department of Homeland Security, and the Environmental Protection Administration.

Perhaps the biggest incentive for reducing overclassification is the negative impact that unnecessary secrecy can have on government operations.

“A major impediment to operating with international partners is the U.S. tendency to classify information, complicating the crucial flow of important data to our allies as well as within and among our own Services,” according to a new article in Joint Force Quarterly, which is published by National Defense University for the Chairman of the Joint Chiefs of Staff.

“The U.S. military needs to […] try harder to communicate in the unclassified domain,” wrote Jeffrey M. Shaw in his article “Putting ‘A Cooperative Strategy for 21st Century Sea Power’ to Work,” Joint Force Quarterly, January 2014.

Official data on the number of contractors used by civilian intelligence agencies are unreliable, according to a review by the Government Accountability Office (GAO). Nor can the costs incurred by contractors be accurately assessed.

The inadequacy of the data undermines workforce management as well as contractor oversight, GAO said.

“GAO identified a number of limitations in the inventory [of intelligence contractors] that collectively limit the comparability, accuracy, and consistency of the information reported by the civilian IC [intelligence community] elements as a whole,” the GAO report said.  These limitations included changing definitions of what a core contractor is, and variability in the collection and reporting of data on their use.

The resulting inventory “does not provide insight into the functions performed by contractors, in particular those that could inappropriately influence the government’s control over its decisions.”

See Civilian Intelligence Community: Additional Actions Needed to Improve Reporting on and Planning for the Use of Contract Personnel, Government Accountability Office Report GAO-14-204, January 2014.

The intelligence community (IC) workforce is composed of three basic categories of employees:  civilian government personnel, military personnel, and core contractors.

“Core contractors” — as opposed to other individual contractors, manufacturers or service providers — may perform mission-related functions including intelligence collection, processing and analysis, as well as information technology services. (Edward Snowden was considered a core contractor.)

“While the use of contractors can provide benefits in support agency missions, such as flexibility to meet immediate needs and obtain unique expertise, their use can also introduce risks for the government to consider and manage,” the GAO report said.

But as a result of faulty data, US intelligence agencies “are not well-positioned to assess the potential effects of relying on contractor personnel.” The GAO report included recommendations for improving the quality and utility of data on intelligence contractor use.

Stephanie O’Sullivan, the Principal Deputy Director of National Intelligence, acknowledged that there were defects in IC reporting on contractors, but she said that things were getting better.

“There have been challenges associated with conducting the [intelligence contractor] inventory, which was one of the first of its kind in the Federal government,” she told the Senate Homeland Security and Governmental Affairs Committee. “However, the IC continues to improve the capture and understanding of data on its core contract personnel.”

Ms. O’Sullivan said that reductions in the contractor population were underway, but that contractors remained indispensable.

“We have… turned the corner and for the past several years have been reducing the number of core contract personnel across the IC, both in numbers and costs. Despite these reductions, core contract personnel have now become an integral part of the IC workforce. We could not perform our mission without them,” she said.

She noted that in some cases, intelligence contractors “have given their lives for this country alongside their government colleagues.”

“Two IC contract personnel were among the nine people killed during a terrorist attack on a CIA facility located near the eastern Afghan city of Khost in December 2009, and two IC contract personnel lost their lives during the attack on US diplomatic facilities in Benghazi, Libya, in September 2012.”

In any case, “because of the contraction in [intelligence] budgets, contractors are motivated to reduce costs…. In fact, some contractor employees are now being paid less than they were a few years back.”

The new Governmental Accountability Office report appears to represent a successful step in the development of GAO’s role in intelligence oversight.

Ms. O’Sullivan said that several of the specific steps recommended by GAO had been or would be adopted by the Intelligence Community. “These changes will bring greater transparency to the IC’s data on core contract personnel,” she said.

But it seems noteworthy that the new GAO report was requested by the Senate Committee on Homeland Security and Governmental Affairs– not the Senate Select Committee on Intelligence.

Just as the House and Senate Judiciary Committees have produced more incisive public oversight of intelligence surveillance policy than the Intelligence Committees have done over the past year, so in this case the Senate Homeland Security Committee has had more to offer the public in terms of oversight of intelligence contractors.  It is not clear why that should be so.

A GAO official downplayed this question. He said the Homeland Security Committee had a long-term interest in contractor policy throughout the government, including a series of reports requested from GAO. He added that the latest report “was distributed to all committees of jurisdiction, including the intelligence committees.” (More: Bloomberg, WaPo).

It was announced today that Chief Justice Roberts has appointed Judge James E. Boasberg of the DC District Court to the Foreign Intelligence Surveillance Court for a seven year term beginning in May 2014. He will replace the outgoing Presiding Judge Reggie Walton, whose term expires in May. The Chief Justice also appointed Judge Richard C. Tallman of the Ninth Circuit Court of Appeals to the Foreign Intelligence Surveillance Court of Review.

The current membership of the FISA Courts can be found here.

Background information on the Foreign Intelligence Surveillance Court and potential changes to its operations were discussed in a new report from the Congressional Research Service. See Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, January 16, 2014.

Relatedly from CRS, see Introducing a Public Advocate into the Foreign Intelligence Surveillance Act’s Courts: Select Legal Issues, October 25, 2013

Other new and updated CRS reports that Congress has withheld from online public distribution include the following.

The 2014 Sochi Winter Olympics: Security and Human Rights Issues, January 26, 2014

The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters, January 27, 2014

Cuba: U.S. Policy and Issues for the 113th Congress, January 29, 2014

Cuba: U.S. Restrictions on Travel and Remittances, February 4, 2014

Mexico: Background and U.S. Relations, January 30, 2014

Status of Mexican Trucks in the United States: Frequently Asked Questions, January 3, 2014

The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, January 23, 2014

A resolution introduced yesterday by Sen. John McCain would establish a new Senate Select Committee to investigate the unauthorized disclosures of classified information on National Security Agency collection programs and their implications for national policy.

The McCain resolution is framed broadly and touches on many issues besides leaks, including intelligence policy, congressional oversight, the role of contractors, the constitutionality of current intelligence programs, and more.

The resolution asserts that “senior officials in the intelligence community may have misled Congress or otherwise obfuscated the nature, extent, or use of certain intelligence-collection programs, operations, and activities of the National Security Agency, including intelligence-collection programs affecting Americans.”

“[T]he provision of incomplete or inaccurate information by officials of the intelligence community has inhibited effective congressional oversight of certain intelligence-collection programs, operations, and activities of the National Security Agency, including intelligence-collection programs affecting Americans, and undermined congressional and public support of these programs,” the resolution stated.

Moreover, “some such programs, operations, and activities that are the subject matter of the unauthorized disclosures may not have been authorized, or may have exceeded that which was authorized, by law, or may not have been permitted under the Constitution of the United States.”

The proposed new select committee would investigate the unauthorized disclosures and assess how they occurred, the damage to U.S. national security that resulted, and how such damage could be mitigated.

The committee would review the role of intelligence contractors and the adequacy of current management controls.

The committee would evaluate the legality, constitutionality, and efficacy of the NSA collection programs that have been disclosed.

It would also consider “the need for greater transparency and more effective congressional oversight of intelligence community activities,” and whether existing laws are sufficient “to safeguard the rights and privacies of citizens of the United States.”

In proposing a new select committee, Senator McCain is implicitly declaring that existing oversight procedures are inadequate, and that a new, more fundamental approach is required. The prospects for the McCain proposal to become a reality are uncertain.

The primary lesson that emerges from the unauthorized disclosures of classified intelligence information by Edward Snowden is that U.S. intelligence agencies must be more transparent in their operations, said Director of National Intelligence James R. Clapper yesterday.

“The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can,” DNI Clapper told the Senate Intelligence Committee.

“With greater transparency about these intelligence programs the American people may be more likely to accept them,” he said, promising “further declassification.”

Another possibility, he acknowledged, is that even with greater transparency the American people will choose not to accept certain kinds of intelligence programs.

“If dealing with reduced capacities is what we need to ensure the faith and confidence of the American people and their elected representatives, then we in the intelligence community will work as hard as we can to meet the expectations before us,” DNI Clapper said.

Already, the Snowden disclosures have caused “profound damage” to U.S. intelligence, the DNI said.

“What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners.”

“Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed to prevent even more damage to U.S. security,” the DNI said.

The use of the word “accomplices” appeared to suggest that the DNI views the journalists who possess and report on the Snowden documents as Snowden’s partners in crime, and even as criminals themselves.

“Is it now the official view of the Obama administration that these journalists and media outlets are ‘accomplices’ in what they regard as Snowden’s crimes? If so, that is a rather stunning and extremist statement,” wrote Glenn Greenwald, who first reported on the Snowden releases last June.

But though it has never yet figured in an actual prosecution, the issue of criminal liability for journalists in this area is embedded in the law.

It’s true that there is no general legal prohibition on publication of classified information. (Congress passed such a statute in 2000, but President Clinton vetoed it.)

But there is a clear and specific prohibition on the willful disclosure of classified communications intelligence information. And that prohibition, in 18 U.S.C. 798, extends also to anyone who “publishes” such information.

What is “stunning,” or at least noteworthy, is that the Obama Administration has apparently made a strategic decision not to attempt to enforce this provision of the law against publishers of the Snowden documents. (It was invoked against Snowden himself as one of the three counts in a June 14, 2013 criminal complaint.)

It seems that even what the DNI called “the most massive and most damaging theft of intelligence information in our history by Edward Snowden and the ensuing avalanche of revelations published and broadcast around the world” is not sufficient to trigger the use of the criminal statute against publishers of classified communications intelligence. So that provision is effectively a dead letter, even if it still finds a faint echo in the DNI’s testimony before Congress.

The public controversy that erupted over NSA bulk collection of Americans’ telephone records was a clear sign, if one were needed, that the boundaries of government secrecy had been drawn incorrectly, and that the public had been wrongly denied an opportunity to grant or withhold its consent in such cases.

To remedy this systemic problem, the Privacy and Civil Liberties Oversight Board said in a new report yesterday that the government needs to develop new criteria for secrecy and openness.

“The Board urges the Administration to commence the process of articulating principles and criteria for deciding what must be kept secret and what can be released as to existing and future programs that affect the American public” (Recommendation 11).

But translating this imperative into practice remains a challenge.

“Generalities about the value of transparency do not go far in answering the hard questions of what can be disclosed and what must remain secret,” the Board properly observed. “Instead, progress may best be achieved by considering specific problems,” such as intelligence surveillance policy.

With that in mind, the Board sketched out illustrative examples and options that could guide future declassification and disclosure decisions. Experience has already shown, the report said, that “it is possible to describe [intelligence] practices and policies publicly, even those that have not been otherwise leaked, without damage to national security or operational effectiveness.”

More specifically, the Board report said the Administration should start to address transparency with a “public articulation of the legal authorities under which it conducts surveillance affecting Americans,” the very point at which the current controversy began (Recommendation 12).

However, a minority of the Board did not endorse this particular recommendation. “I do not believe that an intelligence program or legal justification for it must necessarily be known to the public to be legitimate or lawful,” said dissenting Board member Rachel Brand.

The lack of Board unanimity on this and other points “really weakens its recommendations and undermines the role that we envisioned it would play,” said Sen. Susan Collins in the Wall Street Journal.

But from another point of view, the divided views of Board members are a strength, not a weakness. The fact that thoughtful people reviewing the same factual record can arrive at divergent conclusions is instructive, and the split may accurately reflect larger divisions among members of the public. Advocates and editorial writers seem to be strangers to doubt, but others may not be. Confronting the opposing views of Board members, readers are invited and compelled to think for themselves.

Overall, the Privacy and Civil Liberties Oversight Board demonstrated its utility as a public oversight body, helping to fill the void left by congressional and judicial oversight that sometimes seems cursory by comparison.

The Board (majority) presented an incisive critique of current surveillance practices that is lucid and nuanced, clarifying the legal and policy issues involved without hyperbole or vitriol.

“The Board concludes that Section 215 [of the USA Patriot Act] does not provide an adequate legal basis to support this [bulk collection] program. Because the program is not statutorily authorized, it must be ended,” the report said.

Even in the absence of overt abuse, it was argued, the mere collection of American telephone records in bulk is an infringement on privacy and other civil liberties. “Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”

While there are procedures in place to limit the official use of such records, “in our view they cannot fully ameliorate the implications for privacy, speech, and association that follow from the government’s ongoing collection of virtually all telephone records of every American. Any governmental program that entails such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone records program conducted under Section 215 meets that standard.”

If the bulk collection program were demonstrably effective in saving lives, the report implied, then certain infringements on privacy might well be warranted. But that is not the case, the Board majority concluded.

“Given the limited value this [bulk collection] program has demonstrated to date… we find little reason to expect that it is likely to provide significant value, much less essential value, in safeguarding the nation in the future,” the Board report said.

Of course, that is a judgment, not an empirical fact. Others can and do disagree, including two of the members of the Board itself.

“Whether the [bulk collection] program should continue boils down to whether its potential intrusion on privacy interests is outweighed by its importance to protecting national security,” wrote Rachel Brand, precisely. This too is a judgment, and it explains why disagreement over the program persists.

But on the need to rethink current secrecy practices, at least, there is consensus, among members of the Board and beyond.

John C. Inglis, in his final days as deputy director of the National Security Agency, told National Public Radio that he now realized that existing public disclosure practices were “insufficient.”

Did he wish NSA had made an effort years ago to disclose the bulk collection program in a way that the public could debate it?  “In hindsight, in hindsight,” he told NPR’s Steve Inskeep.

The task now is to apply the lessons of hindsight to present-day national security secrecy policies, and not only with regard to NSA surveillance activities.

“What we’re going to have to do as a nation, and particularly as an agency, is to rebalance, right, the balance that we have struck between security, secrecy and transparency,” Mr. Inglis said, in an NPR interview published January 10.

 

While others speak of curbing intelligence surveillance activities, the Defense Science Board argues in a new report that the U.S. government should expand and accelerate global monitoring for purposes of detecting nuclear proliferation as “a top national security objective.”

Intelligence techniques and technologies that are used to combat terrorism should also be harnessed to address the threat of proliferation, said the new DSB report, entitled “Assessment of Nuclear Monitoring and Verification Technologies,” January 2014.

“The advances in persistent surveillance, automated tracking, rapid analyses of large and multi-source data sets, and open source analyses to support conventional warfighting and counterterrorism have not yet been exploited by the nuclear monitoring community…. New intelligence, surveillance, and reconnaissance (ISR) technologies, demonstrated in recent conflicts, offer significant promise for monitoring undesirable nuclear activity throughout the free world.”

The National Security Agency, among others, has pointed the way, the report suggested. A newly integrated global awareness system for counterproliferation should “build on lessons and experiences of successful national security capabilities, such as… NSA’s counterterrorism capabilities….”

“The ‘big data’ technologies for extracting meaning from vast quantities of data that are being developed commercially in the information technology (IT) industry, and for other purposes in DoD and the IC, need to be extended and applied to nuclear monitoring.”

In particular, “Exploiting the cyber domain should certainly be a big part of any nuclear monitoring effort. Both passive, depending on what is sent voluntarily, and active sources should be considered. Data gathered from the cyber domain establishes a rich and exploitable source for determining activities of individuals, groups and organizations needed to participate in either the procurement or development of a nuclear device…. Many of the new technology advances in data exfiltration, covert implantation, etc., hold promise for successful multi-INT collection and exploitation in non-permissive environments.”

“Monitoring for proliferation should be a top national security objective — and one that the nation is not yet organized or fully equipped to address.”

At the same time, the DSB report emphasized the need for increased openness and transparency, both to strengthen international confidence and stability and to simplify the challenge of global monitoring of proliferation. (As used by the DSB — and the USG — the term transparency in this context seems to mean the exchange of data among interested governments, and does not necessarily imply release of information to the public.)

The DSB authors recommend “a comprehensive, sustained, policy-based diplomatic approach coordinated across the U.S. Government and with other nations devoted expressly to advance the cause of openness and transparency writ large…. This situation should be addressed with the highest priority.”

“The Task Force envisions a multi-year effort, which can pay large dividends in terms of a universal transparency that would improve strategic and tactical stability against nuclear war among all nuclear weapons states, as well as achieve enhanced confidence building for nonproliferation efforts.”

“All parties would benefit from the national security stability that would ensue from having transparent knowledge of the numbers/types of other nations’ nuclear arsenals, while each nation in turn makes the knowledge of their own SNM [special nuclear material] and/or nuclear weapons inventories available to the others.”

(The report does not mention the case of Israel, whose policy of nuclear opacity — not transparency — is supported at least tacitly by the U.S. government.)

“The Task Force does believe that the times are now propitious to move forward on a path to develop universal transparency regimes that can simultaneously fulfill these goals and requirements through an international process for achieving universal knowledge of nuclear weapon inventories and SNM inventories, and that the U.S. should lead in such an effort.”

“Indeed, the U.S. has already declassified the size of its current nuclear arsenal.”

Unfortunately, that last assertion is not correct.  In May 2010, the U.S. government did declassify the size of the U.S. nuclear arsenal as of September 2009.  (At that time, there were 5,113 warheads.) But if you ask how big the arsenal is today, it turns out that the answer is once again classified. The Federation of American Scientists has petitioned the Department of Energy to revise that judgment in favor of public disclosure.

The new DSB report contains several other incidental observations of interest.

*    To date, the U.S. has entered into roughly 25 agreements on nuclear cooperation with other countries (known as 123 Agreements).

*    Of the nearly 1,000 active satellites in earth orbit, there are 200 engaged in earth observation.

*    Some non-governmental analysis of commercial satellite imagery is of poor quality and “may introduce additional noise into U.S. and international monitoring systems. Some experts are concerned that bad data and bad analysis could increasingly tarnish or mask more reliable data…. There have already been major analytical errors made by untrained imagery analysts who have published openly.”

*    The efficient analysis of big data can be undermined by the “transmission latency” (or delayed transfer) of data stored in a cloud-based architecture. Therefore, the DSB says that when it comes to nuclear monitoring, “the analytics need to stay near the data.” Similar concerns concerning prompt access are said to arise in the context of NSA analysis of telephony metadata.

The Government Accountability Office will issue a long-awaited report on intelligence community contractors in the next few weeks, a congressional official said.

The GAO report is an unclassified version of a classified assessment that was completed last year.  According to a statement of work obtained by Secrecy News in 2012, the GAO project was to address the following issues:

“(1) To what extent do civilian intelligence agencies rely on and strategically review their reliance on contractors to perform critical professional and management support services? (2) To what extent do these agencies have policies and guidance that address the use of contractors for these services? (3) What steps have these agencies taken to manage the risks associated with using contractors for these services? (4) To what extent have these agencies addressed challenges with retaining federal personnel?”

The new contractor study is not the only GAO activity related to intelligence; it is one of “several, maybe half a dozen” GAO projects that are underway. By its nature, GAO tends not to deal with intelligence operations, or with sources and methods, the congressional official said. Rather, it is mainly concerned with workforce management, human capital, and similar issues in which it has particular expertise.

The official said that GAO now has a “constructive” relationship with intelligence agencies, particularly after the adoption in 2011 of Intelligence Community Directive 114, which established a common understanding of GAO’s role and authorities.

“We’re on the right path,” the official said. “There are occasional bumps in the road, but you deal with the bumps.”

A new appreciation for the potential utility of GAO audits and investigations of intelligence agency performance seems to be developing.

Multiple bills have been introduced in the current Congress that would employ GAO in congressional oversight of intelligence.

Rep. Rush Holt’s “Surveillance State Repeal Act” (HR 2818) would require the GAO to evaluate government compliance with foreign intelligence law.

The “NSA Accountability Act” (HR 3882) introduced by Rep. John Carney would require GAO to analyze the effectiveness of NSA programs, to report on the conduct of surveillance programs, and to describe any violations of law.

Another bill (HR 3900) introduced just last week by Rep. Michael McCaul is intended to facilitate GAO access to information in the intelligence community.

The U.S. intelligence community needs to expand the collection and analysis of open source information, according to a Senate Intelligence Committee report on the 2012 attack on U.S. facilities in Benghazi, Libya.

But that recommendation ironically comes just as the CIA has terminated public and scholarly access to its open source collection of foreign news reports.

“The IC must place a greater emphasis on collecting intelligence and open-source information, including extremist-affiliated social media, to improve its ability to provide tactical warnings, especially in North Africa, the Middle East, and other areas where the U.S. has facilities under high threat,” the new report said (p. 25).

“The IC should expand its capabilities to conduct analysis of open source information including extremist-affiliated social media particularly in areas where it is hard to develop human intelligence or there has been recent political upheaval,” the report said.

In the past, public consumers of CIA open source reporting were able to provide a measure of analytic support as well as area expertise to policy makers.

Such public consumers contributed to “expanded participation in informed analysis of issues significant to U.S. policy interests,” said the CIA’s J. Niles Riddel in 1992.  Back then, intelligence agencies “value[d] the work of private sector scholars and analysts who avail themselves of our material and contribute significantly to the national debate on contemporary issues such as economic competitiveness.”

But today’s CIA decided to cut off public and scholarly access to such material through the World News Connection, to the detriment of the “informed analysis” that public consumers might have contributed to the national debate.

The entire archive of the former World News Connection from 1995-2013 has been acquired by East View Information Services. For a subscription fee, “Researchers will still have access to over 1 million foreign newspaper articles, broadcast transcripts and datelines from Beijing, Beirut, Bogota, Cairo, Jakarta, Iraq, Mogadishu, Qatar, Ramallah, Sarajevo, Vienna, and hundreds of other spots around the world.”