The Central Intelligence Agency tried to make “inappropriate” use of an exemption from the Freedom of Information Act to withhold information that was not subject to the exemption, a federal court ruled last month.

In a significant interpretation of the Central Intelligence Agency Act, Judge Beryl A. Howell narrowed the permissible scope of records that CIA may withhold under Section 403g of the Act.  That section allows CIA to exempt from release information concerning “the organization, functions, names, official titles, salaries, or numbers of personnel employed by” the Agency.

But in a 163 page opinion in response to a lawsuit brought by the non-profit National Security Counselors, Judge Howell ruled on August 15 that CIA was interpreting this provision in a manner that was “inappropriately broad” (discussed at pp. 99-122).

Instead of just withholding information about CIA organization and personnel, she concluded, the Agency was also wrongly attempting to withhold “information that relates to” CIA organization and personnel– which is almost everything the Agency does.

“The Court holds that the CIA may not invoke [50 USC] 403g to withhold information merely because that information may be used by CIA personnel to carry out their responsibilities or functions,” Judge Howell wrote. “The CIA Act does not protect all information about CIA functions generally… The CIA may only invoke 50 USC 403g to withhold information under the FOIA if it would reveal the specific categories of personnel-related information enumerated in the statute.”

If that seems like a common-sense conclusion, it is also a rare judicial setback for the CIA, and a reversal of the more familiar expansion of national security secrecy authority.

“This really is something pretty remarkable,” said Harry Hammitt of Access Reports, which monitors FOIA policy. “Judge Howell has narrowed the interpretation of the statute dramatically.”

In its endless pursuit of national security, the United States has compromised core Constitutional values including civilian control of the military and states’ rights, writes William M. Arkin in his new book “American Coup” (Little, Brown, 2013).

Since 9/11, a growing fraction of the population been mobilized and credentialed in support of homeland security — whether as law enforcement, first responders, or those who simply “see something and say something.”

“What is military and what is civilian is increasingly obscured,” Arkin writes. “The state and local police forces are militarized and networked into one; states have their own intelligence establishments; the big cities make their own foreign policies.”

What concerns Arkin, and what his book helps to illuminate, is what he describes as a parallel apparatus of executive authority that has developed outside of Constitutional norms (and beyond public awareness) to respond to national emergencies– catastrophic acts of terrorism, nuclear disasters, threats to presidential survival, or other extraordinary events.

Some of this is familiar ground, and has been previously described under the rubric of Continuity of Government, or Continuity of Operations, dating back to the Eisenhower Administration. But it has expanded and been formalized, Arkin says, in a series of classified Presidential Emergency Action Documents (PEADs) that assert all but unchecked executive power.  And while those administrative instruments are technically dormant most of the time, they exercise a baleful influence on the normal conduct of political life, he argues.

Despite its garish and off-putting title (and subtitle: “How a Terrified Government is Destroying the Constitution”), “American Coup” is not a manifesto, nor a call to action.

What makes the book interesting and valuable, rather, is its close reading of official documents in search of clues to undisclosed power structures. Arkin is a careful student and a subtle analyst of military doctrine, a neglected genre rich with insights waiting to be discovered.  For some readers, the 100 pages of endnotes will be the most rewarding part of the book.

Arkin observes, for example, that an official U.S. Army history states that martial law has only been declared once in United States history. But an Army field manual reports that martial law has been imposed four times. The Justice Department said there had been two such cases.  All of these are in error, he concludes, and reflect inconsistent definitions of the term. Meanwhile, he reports that the Army issued a new official definition of martial law in 2010 “for the first time in years.”

Arkin is the co-author (with Dana Priest) of “Top Secret America,” and many other works of research into national security policy.

“American Coup” was written prior to the revelations by Edward Snowden of unsuspected bulk collection of American telephone records by the National Security Agency, and such practices are not specifically discussed in the book. But Arkin would likely argue that the Snowden revelations are a special case of a more general phenomenon, in which national security is invoked to justify secret actions that exceed the bounds of public consent.

Arkin does not propose any kind of policy response to the political problems he perceives.  In fact, beyond some marginal steps that might be taken, he says that “bigger changes are blocked” by the powers that be.  Those who believe otherwise will need to look elsewhere.

The leak by Edward Snowden of a classified order issued by the Foreign Intelligence Surveillance Court (FISC) helped to arouse significant public interest, said the Court itself in an opinion issued today. Further disclosures are now justified, the Court indicated.

“The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215,” wrote FISC Judge F. Dennis Saylor IV in an opinion today regarding an ACLU motion for release of prior Court opinions concerning Section 215 of the USA Patriot Act.

Judge Saylor directed that any opinions not already subject to litigation under the Freedom of Information Act should now be reviewed for declassification.

“[Further] Publication of FISC opinions relating to this provision would contribute to an informed debate,” Judge Saylor added. “Publication would also assure citizens of the integrity of this Court’s proceedings.”

Yesterday, Director of National Intelligence James Clapper also acknowledged that the leaks, while damaging, had triggered an important debate.

“I think it’s clear that some of the conversations this has generated, some of the debate, actually needed to happen,” DNI Clapper said. “If there’s a good side to this, maybe that’s it.” (“Clapper: Snowden case brings healthy debate; more disclosures to come” by Ken Dilanian, Los Angeles Times, September 12.)

But if the unauthorized disclosure of a FISA Court order generated debate that “needed to happen,” that means that the original classification of the order had precluded a necessary public debate. If so, it follows that a thorough reconsideration of classification policy and practice is due.

The end of the government’s fiscal year 2013 is just weeks away, but an intelligence authorization bill for fiscal year 2014 is nowhere in sight.  In past years, the House and Senate Intelligence Committees typically reported intelligence bills in late spring or early summer for House-Senate conference and floor action later in the year.  But this year, nothing.

On its homepage, the Senate Intelligence Committee website cites the Committee’s report on the fiscal year 2012 intelligence bill under the heading “recent action.”  But that report was issued in August 2011.  (The Committee website also offers a current compilation of YouTube videos that appear to reflect the use of chemical weapons in Syria.)

Though 2013 has become the most momentous year for intelligence policy in a generation, the Senate Intelligence Committee has not held any public hearings since a March threat briefing, and none at all on surveillance policy.  Americans seeking insight into the meaning of current intelligence controversies must look elsewhere.

Meanwhile, the House and Senate Judiciary Committees have each held stimulating hearings on intelligence surveillance, while the House Intelligence Committee offered a one-sided forum for government officials only.

Up to now, the machinery of intelligence policymaking has seemed poorly suited to coping with the Snowden-derived revelations that continue to emerge.

Confusingly, both the Privacy and Civil Liberties Oversight Board (PCLOB) and the ad hoc Review Group on Intelligence and Communications Technologies are delving into the privacy implications of intelligence surveillance, among other topics, and each has independently sought to engage interested members of the public.  But neither body has policymaking power or authority, and it is unclear how their findings and recommendations might eventually shape policy.

My initial comments to the Review Group are available here.

The Director of National Intelligence yesterday released several newly declassified opinions of the Foreign Intelligence Surveillance Court in response to FOIA lawsuits from the Electronic Frontier Foundation and the ACLU.  The voluminous materials shed new light on interactions between the FISA Court and the intelligence community, including what one Court opinion described as a “history of serious and widespread compliance problems.”

Yesterday, Chief Justice John Roberts appointed Judge William C. Bryson to succeed Judge Morris Arnold as the Presiding Judge of the U.S. Foreign Intelligence Surveillance Court of Review, following Judge Arnold’s retirement on August 31.  Judge José A. Cabranes was appointed to the Court of Review on August 9, 2013.  The appointment of a third judge to the Court is pending.

The Court of Review, which hears government appeals of unfavorable opinions from the Foreign Intelligence Surveillance Court, only rarely has occasion to meet.  It could not immediately be learned when the Court was last presented with a case.  The Rules of the Court of Review may be found in FISCR Order No. 1, January 22, 1980.

The rise and fall (and rise) of intelligence spending over the past three decades is traced in a newly updated report from the Congressional Research Service.

“Limited publicly available data suggests intelligence spending, measured in constant 2014 dollars, has roughly doubled since the September 11, 2001, terrorist attacks and, before declines over the last three years, was almost double spending at its peak at the end of the cold war,” the CRS report notes.

The report does not explicitly deal with the latest disclosure of a classified intelligence budget document in the Washington Post. “Because the document leaked to the news media is classified, CRS is unable to provide a discussion of the specific detail of that budget submission.” But the report provides a useful compilation of previously disclosed intelligence budget data, along with some sensible extrapolations to round out the picture.

CRS also reviews proposals to restructure the intelligence budgeting process.  See Intelligence Spending and Appropriations: Issues for Congress, September 5, 2013:

But any proposals to modify current intelligence budget practices face strong opposition in Congress. In its report on the FY2014 defense authorization act, the House Armed Services Committee included language to prohibit efforts by the Secretary of Defense to create a new budget account for the National Intelligence Program. (Section 924)

The Committee also said that the Defense Department has been secretly maneuvering to promote a consolidated National Intelligence Program budget within the Department of Defense as a separate budget category — a step favored by the 9/11 Commission, among others, as a way to increase clarity and accountability in intelligence spending. “The committee is concerned that the executive branch has failed to notify the appropriate congressional committees about its continuing efforts to pursue consolidation of the portion of the Department of Defense budget designated as part of the National Intelligence Program,” the House report said. The Committee directed the Department of Defense to submit a report to Congress on “any planning [for future intelligence budget consolidation] that has occurred during the past two years.”

Some other noteworthy new reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

War in Afghanistan: Campaign Progress, Political Strategy, and Issues for Congress, August 29, 2013

Instances of Use of United States Armed Forces Abroad, 1798-2013, August 30, 2013

Navy Littoral Combat Ship (LCS) Program: Background and Issues for Congress, September 3, 2013

Banning the Use of Racial Preferences in Higher Education: A Legal Analysis of Schuette v. Coalition to Defend Affirmative Action, September 3, 2013

Wildfire Management: Federal Funding and Related Statistics, August 30, 2013

U.S. Farm Income, August 30, 2013

Proposed U.S.-Mexico Transboundary Hydrocarbons Agreement: Background and Issues for Congress, August 29, 2013

Kyrgyzstan: Recent Developments and U.S. Interests, August 30, 2013

Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future, August 28, 2013

Secret intelligence agency budget information was abundantly detailed in the Washington Post yesterday based on Top Secret budget documents released by Edward Snowden.  See “U.S. spy network’s successes, failures and objectives detailed in ‘black budget’ summary” by Barton Gellman and Greg Miller, Washington Post, August 29.

The newly disclosed information includes individual agency budgets along with program area line items, as well as details regarding the size and structure of the intelligence workforce.  So one learns, for example, that the proposed budget for covert action in FY2013 was approximately $2.6 billion, while the total for open source intelligence was $387 million.

Some of the information only confirms what was already understood to be true. The budget for the National Security Agency was estimated to be about $10 billion, according to a recent story in CNN Money (“What the NSA Costs Taxpayers” by Jeanne Sahadi, June 7, 2013). The actual NSA budget figure, the Post reported, is $10.8 billion.

And the involuntary disclosure of classified intelligence budget information, while rare, is not unprecedented.  In 1994, the House Appropriations Committee inadvertently published budget data for national and military intelligence, the size of the CIA budget, and other details. (“$28 Billion Spying Budget is Made Public by Mistake” by Tim Weiner, New York Times, November 5, 1994)

But the current disclosure of intelligence budget information dwarfs all previous releases and provides unmatched depth and detail of spending over a course of several years, based on original documents.  The disclosure is doubly remarkable because the Post chastely refrained from releasing about 90% of the Congressional Budget Justification Book that it obtained.  “Sensitive details are so pervasive in the documents that The Post is publishing only summary tables and charts online,” Post reporters Gellman and Miller wrote.

This is not a whistleblower disclosure; it does not reveal any illegality or obvious wrongdoing. On the contrary, the underlying budget document is a formal request to Congress to authorize and appropriate funding for intelligence.

But the disclosure seems likely to be welcomed in many quarters (while scorned in others) both because of a generalized loss of confidence in the integrity of the classification system, and because of a more specific belief that the U.S. intelligence bureaucracy today requires increased public accountability.

Though it has never been embraced as official policy, the notion of public disclosure of individual intelligence agency budgets (above and beyond the release of aggregate totals) has an honorable pedigree.

In 1976, the U.S. Senate Church Committee advocated publication of the total intelligence budget and recommended that “any successor committees study the effects of publishing more detailed information on the budgets of the intelligence agencies.”

In a 1996 hearing of the Senate Intelligence Committee, then-Chair Sen. Arlen Specter badgered DCI John Deutch about the need for intelligence budget secrecy.

“I think that you and the Intelligence Community and this committee have got to do a much better job in coming to grips with the hard reasons for this [budget secrecy], if they exist. And if they exist, I’m prepared to help you defend them. But I don’t see that they exist. I don’t think that they have been articulated or explained,” the late Sen. Specter said then.

Committee Vice Chair Sen. Bob Kerrey added: “I would concur in much of what the Chairman has just said. I do, myself, believe not only the top line, but several of the other lines of the budget, not only could but should, for the purpose of giving taxpayer-citizens confidence that their money is being well spent.”

In 2004, the 9/11 Commission itself recommended disclosure of intelligence agency budgets: “Finally, to combat the secrecy and complexity we have described, the overall amounts of money being appropriated for national intelligence and to its component agencies should no longer be kept secret” (at page 416, emphasis added).

These are clearly minority views.  They could have been adopted at any time — as disclosure of the aggregate total was — but they haven’t been.  (And even these voices did not call for release of the more detailed budget line items that are now public.)  And yet they are not totally outlandish either.

The initial response of the executive branch to the Washington Post story will be to hunker down, to decline explicit comment, and to prohibit government employees from viewing classified budget documents that are in the public domain.  Damage assessments will be performed, and remedial security measures will be imposed.  These are understandable reflex responses.

But in a lucid moment, officials should ponder other questions.

How can public confidence in national security secrecy be bolstered?  Is it possible to imagine a national security secrecy system that the public would plausibly view not with suspicion but with support, much as the strict secrecy of IRS tax returns is broadly understood and supported?  What steps could be taken to reduce national security secrecy to the bare minimum?

Looking further ahead, is it possible to devise an information security policy that is based on “resilience” to the foreseeable disclosure of secrets rather than on the fervently pursued prevention of such disclosure?

The subject of offensive cyber action by the U.S. government was classified for many years and was hardly discussed in public at all.  Then several years ago the possibility of U.S. cyber offense was formally acknowledged, though it was mostly discussed in the conditional mood, as a capability that might be developed and employed under certain hypothetical circumstances.

Today, however, U.S. offensive cyber warfare is treated as an established fact.  Not only that but, officials say, the U.S. military is pretty good at it.

“We believe our [cyber] offense is the best in the world,” said Gen. Keith B. Alexander, director of the National Security Agency and Commander of U.S. Cyber Command. His comments appeared in newly published answers to questions for the record from a March 2013 hearing of the House Armed Services Committee (at p. 87).

“Cyber offense requires a deep, persistent and pervasive presence on adversary networks in order to precisely deliver effects,” Gen. Alexander explained in response to a question from Rep. Trent Franks (R-AZ). “We maintain that access, gain deep understanding of the adversary, and develop offensive capabilities through the advanced skills and tradecraft of our analysts, operators and developers. When authorized to deliver offensive cyber effects, our technological and operational superiority delivers unparalleled effects against our adversaries’ systems.”

“Potential adversaries are demonstrating a rapidly increasing level of sophistication in their offensive cyber capabilities and tactics. In order for the Department of Defense to deny these adversaries an asymmetric advantage, it is essential that we continue the rapid development and resourcing of our Cyber Mission Forces.”

In response to another question for the record from Rep. James R. Langevin (D-RI), Gen. Alexander said that “Over the next three years we will train the Cyber Mission Forces that will perform world-class offensive and defensive cyber operations as part of our Cyber National Mission Teams, Cyber Combat Mission Teams and Cyber Protection Forces. We do not require additional authorities or resources to train the currently identified cyber professionals” (at page 85).

See Information Technology and Cyber Operations: Modernization and Policy Issues to Support the Future Force, hearing before the House Armed Services Committee, Subcommittee on Intelligence, Emerging Threats and Capabilities, March 13, 2013 (published July 2013).

At the time of his confirmation hearing before the Senate Armed Services Committee in 2010, Gen. Alexander was asked in a pre-hearing question, “Has the U.S. ever ‘demonstrated capabilities’ in cyberspace in a way that would lead to deterrence of potential adversaries?”  He replied (Question 15p):  “Not in any significant way.”

This seems to have been an incomplete response. Committee Chairman Sen. Carl Levin noted in questions for the record of Gen. Alexander’s confirmation hearing in 2010 that in fact offensive cyber capabilities had already been demonstrated: “Unfortunately, we also learned, after asking a specific question following the appearance of a Washington Post article reporting on an apparent offensive cyber operation, that DOD has undertaken a number of offensive cyber operations in the last several years, none of which was reported to the Armed Services Committees….”

On the vital question of oversight, Senator Levin asked:  “Lieutenant General Alexander, do you agree that it is appropriate that the Armed Services Committees be informed of all U.S. offensive cyber operations?”

Gen. Alexander provided an affirmative response, but in a way that altered the terms of the question:  “Yes, I agree that in almost all circumstances the Armed Services Committees should be informed in a timely manner of significant offensive cyber operations conducted by CYBERCOM.”

 

Updated below, Updated again, 8/9/13

The U.S. military has been investigating the use of sophisticated data mining tools to probe social media and other open sources in order to support military operations against money laundering, drug trafficking, terrorism and other threats.  But the window for doing so may be closing as the social media landscape changes, according to an internal assessment.

U.S. Special Operations Command (SOCOM) National Capital Region (NCR) conducted a series of experiments over the past year under the rubric “QUANTUM LEAP” that was intended to test “non-traditional” tools and techniques to advance the SOCOM mission. [In fact, only the first experiment was carried out; see update below.]

An after-action report on the first experiment said it “was successful in identifying strategies and techniques for exploiting open sources of information, particularly social media, in support of a counter threat finance mission.”  Counter threat finance refers to efforts to disrupt an adversary’s finances.  A copy of the SOCOM NCR report was obtained by Secrecy News.  See “Project QUANTUM LEAP: After Action Report,” 12 September 2012.

“Major lessons learned were the pronounced utility of social media in exploiting human networks, including networks in which individual members actively seek to limit their exposure to the internet and social media…,” the report said.

The QUANTUM LEAP project, which did not utilize classified intelligence, relied heavily on participation by private sector firms identified in the report, who demonstrated tools they had developed “to enhance the ability to discover relationships, human networks, and geospatial features” from open source data.

A tool called Social Bubble permitted the search of Twitter-related content “to explore human networks associated with the [counter threat finance] scenario and enabled identification of various entities… associated with the moneylaundering network.”  A tool called Recon was used to reconstruct source documents from a raw data stream.  Another tool served to “collect large quantities of data from the ‘deep web’, or sources which are accessible via the internet but not necessarily indexed or linked via a world wide web page.”  And another called Semantica “is capable of ingesting structured and semi-structured data and displaying it in a ‘triplet’ format, e.g. two entities and a relationship, such as [A is owned by B].”

“More than 200 additional open-source tools and sources were identified relevant to counter threat finance,” the SOCOM report said.

The report said that as valuable as the opportunity created by new techniques for data mining of open sources appears to be, it may prove to be transient.

“We are currently in a ‘window’ of opportunity for exploitation of social media sources for application to CTF [counter threat finance] or other SOCOM NCR missions. This window could be as narrow as 18-24 months before the social media phenomenon transforms. This future transformation is unknown and could offer additional opportunities, or existing opportunities could be closed, but the only thing that is certain is that there will continue to be rapid change.”

There are also unresolved legal issues.

“Legal review of the appropriate use and application of social media data is in its infancy. Social media is transforming notions of privacy and distinctions between personally identifiable information (PII) and self-reported public information will have to be established by precedent in case law,” the report said.

“Almost all information relevant to the QUANTUM LEAP experiment has a locative context [revealing the location of the source]. Location based services (LBS) are becoming integrated into every facet of our lives and are becoming much more accepted. There is a cultural/generational component to acceptance of LBS in social media,” the report said.

SOCOM Public Affairs did not respond to requests for comment or further information about the project, and the report describing the effort (labeled “draft”) has not been formally released.  However, the report was kept unclassified, facilitating its dissemination and discussion among the interested public.

Meanwhile, the future of SOCOM National Capital Region is itself uncertain, as Congress has thus far declined to authorize or appropriate funds that were requested for it in the coming fiscal year.

“The Committee remains unclear about the function, purpose, and costs associated with the operations, infrastructure, and facilities for this entity [SOCOM National Capital Region] both in the interim phase and the final end-state,” according to a June 2013 report of the House Appropriations Committee. “Further, the Committee has received conflicting information over the course of the last year as to the purpose of this entity.”

Project QUANTUM LEAP derives its name and inspiration from an initiative in the late 1990s to incorporate advanced technologies into Naval Special Warfare capabilities.  That earlier Project QUANTUM LEAP was described in “Stimulating Innovation in Naval Special Warfare by Utilizing Small Working Groups” by Thomas A. Rainville, Master’s Thesis, March 2001.

Update (Aug. 6, 4:30 pm): Ken McGraw of U.S. Special Operations Command advised as follows: “We cannot confirm the validity of any of the information listed in the After Action Report. The only information we have received so far is the program is no longer in existence and the people who worked on the program are no longer there. We will provide you additional information when we get it.”

Update 2 (Aug. 9, 11:00 am): Ken McGraw of U.S. Special Operations Command provided the following information:

Quantum Leap was a small, little known experiment that was defunded some time ago so it took us a while to get answers to peoples’ questions.

Question: What is the current status of Project QUANTUM LEAP?

Answer: Quantum Leap was defunded and is no longer in existence.

Question: Were all of the planned six parts of the project carried out?

Answer: No. Only one of the six parts was completed.

Question: Is it possible to briefly summarize the utility of the Project to date?

Answer: As I stated above, Quantum Leap was a very small, little-known, inconsequential experiment that was defunded. The reason it took us so long to get any information on it was because it was so small and inconsequential. The people who worked on the experiment are no longer even in the headquarters. The real focus of Quantum Leap was creating an environment and a process that would improve collaboration with interagency organizations.

It is unfortunate that people took a draft after action report that was filled with incorrect information, as best we can determine, and made quantum leaps in judgment about the importance of the experiment. The experiment was so inconsequential the after action report was never finalized.

Question: Will it have any continuing legacy for SOCOM (or SOCOM-NCR)?

Answer: Quantum Leap will not have a continuing legacy.

Ken McGraw

Public Affairs Officer

US Special Operations Command

The Director of National Intelligence last month issued a revised Classified Information Nondisclosure Agreement, also known as Standard Form 312 or SF 312.  It is a binding legal agreement that must be signed by each of the nearly 5 million people who are cleared for access to classified information.  It affirms that the unauthorized disclosure of classified information “could cause damage or irreparable injury to the United States” and “may constitute a violation… of United States criminal laws.”

The revised SF312 includes some language that did not appear in previous versions of the Form.  All of paragraph 10 and portions of paragraph 11 are new, as are references to the 2009 executive order 13526 on classification. But these passages mainly reflect newly enacted statutes such as the 2012 Whistleblower Protection Enhancement Act, and do not themselves impose any new obligations.

What is perhaps more significant is the fact that for the first time the new Nondisclosure Agreement was issued by the Director of National Intelligence rather than the Information Security Oversight Office, as in the past. It is an expression of the DNI’s elevated status as Security Executive Agent that was assigned to him by the 2008 executive order 13467.

As Security Executive Agent, the DNI is responsible for security policy not only in the Intelligence Community but across the executive branch. He now sets policies governing access to classified information — eligibility, background investigations, clearances, reciprocal recognition, and so forth — for employees of all government agencies.  And effective immediately, all personnel who are cleared for access to classified information will be expected to sign the DNI-prescribed non-disclosure form even if their work is unrelated to intelligence.

Also last month, the DNI issued a new directive that “establishes a framework for Intelligence Community (IC) engagement with intelligence customers in the executive branch of the U.S. Government.”  See Intelligence Community Directive 404 on Executive Branch Intelligence Customers, July 22, 2013.

Newspapers can be held criminally liable for publishing secret information, according to a newly disclosed Office of Legal Counsel (OLC) opinion dating from World War II.  A reporter who writes a story based on defense secrets could be found to have violated the Espionage Act for revealing secret information, as could his editor and publisher.

“A reporter who kept or copied a Navy dispatch containing a list of Japanese ships expected to take part in an upcoming naval battle, and later submitted for publication a newspaper article with information from the dispatch, appears to have violated… the Espionage Act,” the 1942 OLC opinion said.

“Whether the managing editor and publisher of the newspaper that published the article might also be criminally liable under the Espionage Act depends on their intent and knowledge of the facts.”  See “Criminal Liability for Newspaper Publication of Naval Secrets,” Office of Legal Counsel, June 16, 1942.

Under the authority of the Attorney General, the Office of Legal Counsel provides authoritative legal advice to the President and to executive branch agencies. The 1942 OLC opinion has no binding legal force, and it does not necessarily represent executive branch views today. But it fills in a gap in the legal genealogy of leak prosecutions.  It also highlights the latent possibility under the Espionage Act of criminalizing not just leaks but also news reports based on them.

Although not named by OLC, the reporter whose actions prompted the opinion was Stanley Johnston of the Chicago Tribune. Based on a classified document that was shared with him by a naval officer, Johnston wrote a front-page story in the Tribune on June 7, 1942 identifying the Japanese order of battle and implicitly revealing that U.S. intelligence had been able to decrypt Japanese military communications. A grand jury was convened to investigate the matter but was disbanded at the request of the Secretary of the Navy in order to avoid further publicizing the disclosure.  (Gabriel Schoenfeld recounted the episode in his 2010 book Necessary Secrets.)

“The reporter’s conduct in taking and copying a dispatch of immense importance — as this one seems obviously to have been — is characterized by real turpitude and disregard of his obligations as a citizen,” the OLC opinion said. “It is hard to believe that any jury or judge would take a sympathetic view of his case, or seek to free him on any narrow view of the facts of the law. He thoroughly deserves punishment.”

In an assessment that may resonate in some quarters in the networked world of the following century, the OLC opinion said that the newspaper’s broad distribution aggravated the original offense to the point of evil.

“In this case, the vast circulation of the newspapers involved puts the reporter in a position where he must pause and consider the consequences of his act. At best, his conduct was reckless and negligent, rather than specifically intended to do harm. Yet the negligence and recklessness were of such magnitude as to be fairly characterized as criminal and evil…,” the OLC opinion said.

*    *    *

The Office of Legal Counsel opinion on potential criminal liability for newspapers appeared this month in an extraordinary new collection of previously unpublished OLC opinions written between 1933 and 1977. (Formal publication of OLC opinions did not begin until 1977.)

“This volume begins what the Office of Legal Counsel intends to become a continuing supplement to its primary series of published opinions, covering all years during which the Office has been in existence,” according to the Foreword by Virginia Seitz, the current head of OLC, and Nathan A. Forrester.

The contents of the volume are wonderfully rich and interesting.

A 1937 OLC opinion concludes, with evident regret, that there is no legal basis for censoring the broadcast of a speech by Leon Trotsky. “The Federal Communications Commission does not have statutory authority to censor the telephone transmission from Mexico into the United States of a speech by Leon Trotzky.”

A 1974 opinion recommends that the FBI exercise its discretion to release files concerning a New Left figure even though it may have a legal right to withhold the files:

“In the last analysis, the only policy reason for withholding most of the requested documents is to prevent a citizen from discovering the existence of possible misconduct and abuse of government power directed against him. In my view, this is not only no reason for asserting the exemption; it is a positive reason for declining to use it, even where other reasons for asserting it exist. The obtaining of information of this sort is perhaps the most important reason for which the Freedom of Information Act exists.” The opinion was signed by then-OLC head Antonin Scalia.

The “legality and practical consequences” of a U.S. blockade of Cuba are considered in a 1962 opinion, and the use of federal marshals to protect civil rights workers in Mississippi is discussed in a 1964 opinion.

Other OLC opinions treat the invasion of Cambodia during the Vietnam War, Watergate, and many other topics.  The whole collection is an unexpected feast of historical and legal scholarship that is surprisingly accessible to non-specialist readers.

“Notwithstanding that some of these opinions may no longer be good law, our hope is that all will prove to be of value to legal practitioners and legal historians. This volume was a labor of love and respect for the history, traditions, and people of OLC and the Department of Justice,” the OLC editors wrote.

There have been 71 federal judges who have served on the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review from 1979 until the present.  A complete list of the Court’s membership, prepared by the Court’s Administrative staff, was obtained by the New York Times.  Although this comprehensive listing was not formally secret, neither had it been previously been made publicly available.  A copy is posted here.

Under the Foreign Intelligence Surveillance Act, appointments to the Court are made by the Chief Justice of the United States. An analysis of the Court’s membership by the New York Times found that during the tenure of Chief Justice John G. Roberts Jr., a higher number of Republican judges had been appointed than in the past — 10 of the current 11 members, compared to 66% under previous Chief Justices — as well as a higher number of judges who had once worked for the federal government — 50% versus 39% in the past. See “Roberts’s Picks Reshaping Secret Surveillance Court” by Charlie Savage, New York Times, July 25.

The premise of the story is that Chief Justice Roberts’s selection pattern is not merely a statistical curiosity but that it has altered the performance of the court, or “reshaped” it, to favor the executive branch.  The Times does not directly embrace this view, but attributes it to “critics,” including Sen. Richard Blumenthal (D-CT), who is proposing legislation to change the way the Court’s members are appointed.

“Viewing this data, people with responsibility for national security ought to be very concerned about the impression and appearance, if not the reality, of bias — for favoring the executive branch in its applications for warrants and other action,” Senator Blumenthal told the Times.

But the claim that Chief Justice Roberts’s appointments have “reshaped” the Court to favor the executive branch in applications for warrants does not withstand a moment’s scrutiny.  That’s because the Court’s approval rate has always hovered near 100% — both before and after the Roberts era. No discernable reshaping has occurred.

In fact, based on the available data, one could perhaps say that the Court has exercised greater scrutiny lately than it once did. In 1979, in the Court’s very first year of operation, all applications for surveillance were approved without modification.  In 2012, the most recent year, no applications were denied outright, but 40 of them were modified by the Court.

A more substantial concern is that the function of the FISA Court has expanded in the past decade beyond the routine consideration of surveillance applications, and now extends to the secret interpretation of government authorities under the law.  This is indeed an area when ideological predispositions could manifest themselves in reshaping the applicable law.

Whether that has actually happened is impossible to ascertain since most of the Court’s opinions, including those that the Court itself has deemed “significant legal interpretations,” remain classified and unavailable.

But the notion that the behavior of FISA Court judges can be reliably inferred from the political party of the President that appointed them, or from their past service in the executive branch, is cynical and vaguely insulting.

The Times names Judge Reggie B. Walton as one of the current Court members appointed by Justice Roberts who previously served in the executive branch (working “on drug and crime issues for the White House”) and who is therefore purportedly more likely to defer to the interests of the executive.

But the suggestion that Judge Walton has been unduly deferential to executive authority is not borne out by his record.  Years ago I filed a Freedom of Information Act lawsuit against the National Reconnaissance Office that was heard by Judge Walton. I was seeking agency budget information that the NRO refused to provide, withholding it under an intelligence agency exemption for “operational files.”  It was a dispute between a multi-billion dollar agency and an individual plaintiff (me) who was not even represented by an attorney.  This was a perfect opportunity for a judge to display deference to an executive branch intelligence agency, particularly since there was no conceivable ideological or political incentive for the court to rule in my favor. But instead, Judge Walton denied the NRO’s motion to dismiss the case, and he granted my motion to compel disclosure of the requested budget information. It was not the outcome that a cynic would have predicted.

My experience with Judge Walton may be exceptional.  Or maybe not.  One of the academic studies linked from the Times article to support the proposition that judges appointed by Republicans are more likely to rule in favor of the government actually reported that “even in the most controversial cases, Republican and Democratic appointees agree more than they disagree.”

The practical lesson is that to focus on the membership of the FISA Court is probably not the best way to regulate the Court’s conduct or to affect its performance.  Assuming that there is only a limited amount of political energy available for addressing FISA policy, efforts to reform the Court would more profitably be directed toward declassification of Court decisions, and reconsideration of the statutory framework that the Court operates within.

An amendment to prohibit intelligence agencies from performing bulk collection of records such as telephone metadata was narrowly defeated in the House of Representatives yesterday by a vote of 205-217.

Although the amendment by Rep. Justin Amash (R-MI) was not adopted, its near-passage on a bipartisan basis signaled an extraordinary loss of congressional support for the national security establishment and for the bulk collection of records revealed by Edward Snowden in particular. It is doubtful that any intelligence program can continue for long with 49% of House members opposed to it.

The House debate had a certain theatrical quality because it reflected divergent value judgments more than opposing factual claims.

For proponents of the intelligence program, which is conducted under Section 215 of the Patriot Act, it is a lawful and constitutional effort.  In itself, they insist, the collection of telephone records by the government no more involves “spying” on Americans than does the collection of such records by the telephone company– which is to say, not at all. And the program has been justified, they say, by its success in detecting and preventing terrorist attacks.

To opponents of the program, however, intelligence collection of records concerning private persons who are not suspected of any crime is an impermissible infringement on the Fourth Amendment. Opponents also disbelieve that the program has contributed significantly to combating terrorism, or else they would implicitly forego any additional margin of security that it provides. Moreover, they say, the bulk collection of records deviates from the language and the intent of the law.

Even in victory, supporters of the current program do not believe the matter is settled.  Rep. Mike Rogers, the chairman of the House Intelligence Committee and a principal defender of the existing program, said he would consider further proposals to mitigate privacy concerns.

“I will pledge to each one of you today and give you my word that this fall, when we do the Intel authorization bill, that we will work to find additional privacy protections with this program,” he said.