A national policy on “insider threats” was developed by the Obama Administration in order to protect against actions by government employees who would harm the security of the nation.  But under the rubric of insider threats, the policy subsumes the seemingly disparate acts of spies, terrorists, and those who leak classified information.

The insider threat is defined as “the threat that an insider will use his/her authorized access, wittingly or unwittingly, to do harm to the security of the United States.  This threat can include damage to the United States through espionage, terrorism, [or] unauthorized disclosure of national security information,” according to the newly disclosed National Insider Threat Policy, issued in November 2012.

One of the implications of aggregating spies, terrorists and leakers in a single category is that the nation’s spy-hunters and counterterrorism specialists can now be trained upon those who are suspected of leaking classified information.

The National Insider Threat Policy directs agencies to “leverag[e] counterintelligence (CI), security, information assurance, and other relevant functions and resources to identify and counter the insider threat.”

“Agency heads shall ensure personnel assigned to the insider threat program are fully trained in… counterintelligence and security fundamentals….”

Agency heads are directed to grant insider threat program personnel access to “all relevant databases and files” needed to identify, analyze, and resolve insider threat matters.

The National Insider Threat Policy was developed by the Insider Threat Task Force that was established in 2011 by executive order 13587.  The Policy document itself was issued by the White House via Presidential Memorandum on November 21, 2012 but it was not publicly released until last week.

The document was disclosed by the National Counterintelligence Executive (NCIX) after it was independently obtained and reported by Jonathan Landay and Marisa Taylor of McClatchy Newspapers. (“Obama’s crackdown views leaks as aiding enemies of U.S.,” June 20, 2013).

“The National Insider Threat Policy policy is intended to provide direction and guidance to promote the development of effective insider threat programs within departments and agencies to deter, detect, and mitigate actions by employees who may represent a threat to national security,” according to NCIX.

Among the activities mandated by the National Insider Threat Policy is the routine monitoring of user activity on classified government computer networks. “This refers to audit data collection strategies for insider threat detection, leveraging hardware and/or software with triggers deployed on classified networks to detect, monitor, and analyze anomalous user behavior for indicators of misuse.”

But a different sort of approach to combating leaks — an approach not represented in the Insider Threat Policy — would require an ongoing critical examination of the scope and application of official secrecy.  This view was articulated by the late Senator Daniel P. Moynihan when he said “If you want a secret respected, see that it’s respectable in the first place.”

“The best way to ensure that secrecy is respected, and that the most important secrets remain secret,” Sen. Moynihan said, “is for secrecy to be returned to its limited but necessary role. Secrets can be protected more effectively if secrecy is reduced overall.”

In response to an October 2012 presidential directive on “protecting whistleblowers with access to classified information,” the Department of Defense and the Department of Energy have produced their implementing policies.  These would generally prohibit retaliation against individuals who make “protected disclosures” of information to an authorized recipient.

The intelligence community may be retreating from its vision of a uniform community-wide information technology architecture, and may permit individual agencies to retain their “native agency system domain,” reports Bob Brewin in NextGov.  See “Intelligence Community Backs Off Information Sharing,” July 15

The lagging development of the Internet in Africa and its consequences were discussed in “The Emergence of the Internet and Africa” by Les Cottrell, SLAC National Accelerator Laboratory, May 13, 2013

The transcript of the July 9 public meeting of the Privacy and Civil Liberties Oversight Board is now posted here.

 

A new report from the Congressional Research Service summarizes for Congress what is publicly known about the two National Security Agency surveillance programs that were disclosed by Edward Snowden and reported last month by The Guardian and The Washington Post.

“Since these programs were publicly disclosed over the course of two days in June, there has been confusion about what information is being collected and what authorities the NSA is acting under. This report clarifies the differences between the two programs and identifies potential issues that may help Members of Congress assess legislative proposals pertaining to NSA surveillance authorities.”

The CRS report does not present any new factual material concerning the surveillance programs. But it identifies some outstanding questions about them — the word “unclear” is used several times — and it formulates topics for congressional consideration.  See NSA Surveillance Leaks: Background and Issues for Congress, July 2, 2013.

Other new or newly updated CRS reports that Congress has not made publicly available include the following.

Ecuador: Political and Economic Conditions and U.S. Relations, July 3, 2013

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, updated July 5, 2013

China-U.S. Trade Issues, updated July 3, 2012

China’s Economic Rise: History, Trends, Challenges, and Implications for the United States, updated July 3, 2013

U.S.-Taiwan Relationship: Overview of Policy Issues, updated July 2, 2013

Taiwan: Major U.S. Arms Sales Since 1990, updated July 3, 2013

The inspector general of each executive branch agency that classifies national security information is required to produce an evaluation of the agency’s classification program by the end of September, pursuant to the Reducing Over-classification Act of 2010.  The goal of the reviews is to identify policies and procedures “that may be contributing to persistent misclassification of material.”

This is not a straightforward assignment because classification is not a purely objective process that lends itself to external validation;  rather, it is an expression of presidentially-delegated authority.  And if proper classification is a matter of judgment, then so is overclassification.

“Classifying and controlling the dissemination of information is an inherently subjective process,” said the Department of Defense Office of Inspector General, which prepared guidance earlier this year for other agencies’ inspectors general to help them conduct the required classification reviews.

“Key terminology, such as ‘over-classification’ and ‘damage to national security’ has not been defined [by executive order or regulation], causing those determinations to be made by personnel in the Departments and Agencies,” the DoD IG guidance observed.

But having achieved this insight, the DoD IG guidance does not consider those subjective “determinations” any further. Instead, it retreats into matters can be objectively assessed and measured, focusing on the faithful implementation of the executive order’s requirements.  This is not a useless exercise, but if that is as far as the IG evaluations go, they will not have grasped the root of the problem.

The essence of over-classification is not located in mistaken markings of documents or in non-compliance with the formal procedures of the executive order.  It is to be found above all in an official’s subjective “determination” that classification is necessary.  Thus, for example, when an agency’s classification judgment is overruled by the Interagency Security Classification Appeals Panel — which happens with some frequency — it is not because of an error in procedure but because of an error in judgment.

But the official DoD guidance that has been provided for conducting the pending Inspector General reviews is not well suited for identifying (much less correcting) such errors in classification judgment.  That would require something akin to a peer review process that would evaluate individual classification decisions on their national security merits and, if appropriate, flag them for revision.  Unfortunately, a probing review of this sort does not seem to be on the agenda of the Inspectors General.

On June 21, the Director of National Intelligence issued an updated version of Intelligence Community Directive 710 on Classification Management.  The revised Directive somewhat belatedly reflects the requirements of the December 2009 executive order 13526 on classification policy.

So the forthcoming Inspector General review will be able to confirm that intelligence community classification guidance is now consistent with executive branch policy.  But whether over-classification has thereby been reduced in the slightest is a separate question.

Recent disclosures of NSA collection of records of US telephone and email traffic have some unfortunate parallels and precedents in the early history of the Agency that were thought to have been repudiated forever.

“After World War II, the National Security Agency (NSA) established and directed three programs that deliberately targeted American citizens’ private communications,” wrote Army signals intelligence officer Major Dave Owen in a paper published late last year in an Army intelligence journal.

The three programs were Project SHAMROCK (1945 to 1975), which collected telegraph communications;  Project MINARET (1960 to 1973), which functioned as a watch list for terms, names and references of interest;  and Drug Watch Lists (1970 to 1973), which focused on communications of individuals and organizations believed to be associated with illegal drug traffic.  Information about these programs first became public in the 1970s upon investigation by the U.S. Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities, known as the Church Committee.

A capsule summary of the three programs was presented by Major Owen in A Review of Intelligence Oversight Failure: NSA Programs that Affected Americans, which was published in the October-December 2012 issue of Military Intelligence Professional Bulletin.

Major Owen writes that the work of the Church Committee “led to legal restrictions on the NSA’s foreign intelligence authorities, as well as robust intelligence oversight processes to ensure that NSA continued to adhere to these legal restrictions.”

But then he makes an assertion that, in light of recent revelations, can only be viewed as disingenuous or uninformed:

“These [oversight] processes have formed and continuously reinforce an NSA culture that is extremely adverse to any issue that may be construed as collecting on American citizens.”

Major Owen admits vaguely that “this culture has shifted slightly over the last decade.”  But what reader would have imagined that it could possibly extend to the collection of call records and email metadata generated by nearly every American citizen?

“In our view, the bulk collection and aggregation of Americans’ phone records has a significant impact on Americans’ privacy,” wrote Senators Ron Wyden, Mark Udall and numerous Senate colleagues in a June 27 letter to the Director of National Intelligence.

The secret bulk collection of American communication records was, among other things, a colossal error in classification judgment as well as a historic failure of intelligence oversight.

If a fair account of these intelligence collection programs “had been told to the American public at the time when Congress was debating what the scope of surveillance powers should be, it might well be that we would have less public distrust of the government, and maybe even Snowden wouldn’t have done what he did,” said Kate Martin of the Center for National Security Studies at a forum held at the Newseum on June 26.

“The American people shouldn’t be treated as idiots,” she said.

In 2007, Congress passed legislation to grant the Director of National Intelligence “new authority to conduct accountability reviews of significant failures or deficiencies with the Intelligence Community.”  Up to now, however, that authority has never been exercised.

In 2011, the DNI issued Intelligence Community Directive (ICD) 111 on “Accountability Reviews.” That recently disclosed Directive “establishes policy and procedures governing the conduct of such reviews.”

“It is essential that alleged failures or deficiencies involving an IC element or senior IC personnel in the management or execution of IC missions be carefully reviewed and fully resolved,” DNI James R. Clapper wrote in ICD 111.

But in response to a query about how many accountability reviews have been conducted, and on which topics, Michael G. Birmingham of the Office of the Director of National Intelligence this week said that “There have been no accountability reviews conducted under the authorities in ICD 111.”

The Senate Intelligence Committee said in 2007 that the authority to perform accountability reviews was justified by a perceived lack of internal accountability for intelligence failures.

“This enhancement to the authority of the Director of National Intelligence is warranted given the apparent reluctance of various elements of the Intelligence Community to hold their agencies or personnel accountable for significant failures or deficiencies,” according to the Senate Intelligence Committee report on the FY 2008 Intelligence Authorization Act (section 401, p. 16).

“Recent history provides several examples of serious failures to adhere to sound analytic tradecraft,” the Committee report said. “In its reviews of both the September 11, 2001 terrorist attacks and the faulty Iraq prewar assessments on weapons of mass destruction, the Committee found specific examples of these failures yet no one within the Intelligence Community has been held accountable. Other examples of a lack of accountability within the Intelligence Community can be found by examining the history of certain major system acquisition programs. Despite clear management failures that resulted in significant cost overruns and unreasonable scheduling delays, these programs continue to stumble along without any imposition of accountability.”

“The Committee hopes that this modest increase in the Director of National Intelligence’s authorities will encourage elements within the Intelligence Community to put their houses in order by imposing accountability for significant failures and deficiencies,” the Senate Committee report said.

The measure was passed by both houses of Congress as section 408 of the FY 2008 Intelligence Authorization Act. Though that bill was vetoed by the President, the provision on accountability reviews was later enacted into law as Section 102A(f)(7) of the National Security Act.

The ICD stated that accountability reviews would not be conducted (“except in extraordinary circumstances”) or would be deferred whenever the same issues were under review by law enforcement, inspectors general or other investigative bodies.

Earlier this month, the Director of National Intelligence issued another Intelligence Community Directive on the subject of Outside Employment.  ICD 117, dated 09 June 2013, implements a statutory requirement “prohibiting IC personnel from engaging in outside employment if such employment creates a conflict of interest or the appearance thereof.”

Much of the continuing controversy over intelligence surveillance policy revolves around whether the sweeping collection of U.S. telephone data by intelligence agencies violates constitutional norms.  But it is also an occasion to assess the quality of intelligence oversight, and to review the performance of oversight mechanisms in representing the public and defending its interests.

So it was disappointing to read that the Senate Select Committee on Intelligence has blocked its former general counsel, Vicki Divoll, from speaking to Talking Points Memo (TPM) on the record about how the Committee functions.

“TPM was reporting a story based on interviews with members of Congress and current and former aides about the successes and pitfalls of intelligence oversight on Capitol Hill,” wrote Brian Beutler of TPM DC.

“The goal was to answer some basic questions for readers: How does a classified process differ from public oversight? What challenges do the combination of government secrecy, classified briefings, and strict committee protocols present to legislators trying to control the nation’s sprawling intelligence apparatus?”

A Committee spokesman told TPM that this kind of information was “committee sensitive” and that therefore Ms. Divoll’s remarks on the subject should not be made public.  See “Senate Intel Committee Blocks Former Staffer From Talking To Press About Oversight Process,” June 18.

In an earlier era — twenty years ago — it was still possible for a staff member of the Senate Intelligence Committee to speak candidly in public about the strengths and weaknesses of intelligence oversight.

The intelligence oversight process is constrained by size, time, personnel and secrecy, wrote Mary K. Sturtevant in 1992, when she was a Senate Intelligence Committee staffer.

“Because of the classified nature of the programs we review, we are especially reliant on information provided by the very Community we hope to oversee,” she wrote. “We lack alternative sources of information and points of view on intelligence budget requests, as there are few constituents with legitimate access to intelligence programs who wish to bring information forward to the Committees.”

“The fact that these programs are highly classified imposes an extra burden on already busy Senators because they must, as a practical matter, either come to the Committee staff or hearing spaces to review classified information, or read it in their offices in the presence of one of the Committee’s security staff. They might also be orally briefed in their offices or during Committee hearings by their designees or other Committee staff, but frequently this is on the fly and without benefit of note-taking.”

“Also, the arcane, often technical subject matter keeps all but the most persistent senators from delving into the details of intelligence programs where I am reliably told the devil resides. The net result of this situation is that this handful of Congressional budget staff end up providing most of the detailed recommendations — to eliminate, cut, increase, or even create programs — that are decided by Committee Members during mark-up of the Intelligence Authorization bill.”

“Although we occasionally hear the charge of ‘micromanagement,’ we always shake our heads in wonder that this could be so. In toto, we are perhaps one dozen or so full-time budget staff supporting the Intelligence Authorization and Appropriations Committees of both the House and the Senate reviewing activities conducted by tens of thousands of civilian and military personnel and programs valued in the multiple billions of dollars.”

“For better or for worse, the way budgets are put together and presented to Congress places the small number of new and on-going initiatives — those ideas most likely to reflect needed changes in direction — under the microscope of Congressional attention, while the great majority of continuing, or ‘base,’ programs, go unscrutinized.”

And so forth.  While much has changed in intelligence and oversight in the past twenty years, some of the enduring difficulties of overseeing secret government operations are frankly acknowledged in Ms. Sturtevant’s article.  See “Congressional Oversight of Intelligence: One Perspective,” American Intelligence Journal, Summer 1992 (posted with permission of the publisher).

One problematic aspect of congressional oversight of intelligence that is not often addressed is the heavy, disproportionate representation of former intelligence community employees (like Ms. Sturtevant and Ms. Divoll) among the professional staff of the oversight committees.

On one hand, this is perfectly understandable since such former intelligence employees bring much-needed subject matter expertise to the task of oversight, along with an existing security clearance.  On the other hand, they may also possess a narrow, compliant perspective and a set of personal interests that limit their effectiveness, particularly if they ever hope to return to the ranks of their former employers.  Meanwhile, it is hard to think of an intelligence committee staff member who joined the committee following a career devoted to civil liberties, government accountability or personal privacy.

A 2006 report from the Center for American Progress said Congress had failed in its duty to perform effective oversight of intelligence, and that the oversight function needed to be fixed.  See “No Mere Oversight: Congressional Oversight of Intelligence is Broken” by Denis McDonough, Mara Rudman and Peter Rundlet, June 13, 2006.

The lead author of that report, Mr. McDonough, now serves as the White House Chief of Staff.

 

Hundreds of cases of unauthorized disclosures of classified information were under review by the Office of the Inspector General of the U.S. Intelligence Community as of last year, according to a 2012 report that was recently declassified.

“The Investigations Division [of the IC Office of the Inspector General] is reviewing 375 unauthorized disclosure case files,” said the report from Inspector General I. Charles McCullough, covering the period from November 2011 through June 2012 (at p. 16).

Most of these reviews pertained to disclosures which could not be criminally prosecuted for one reason or another, and which were therefore considered closed cases. Until recently, they were usually not investigated further.  But starting a year or so ago, the IC Inspector General began reviewing them in order to identify the leakers and to impose administrative sanctions where appropriate.

“The Investigations Division reviewed hundreds of closed cases from across the IC,” said the 2012 report, which was released under the Freedom of Information Act in redacted form (p. 10).

Leakers who cannot be prosecuted will not necessarily be off the hook, the IG said.

“Going forward, the division will engage in gap mitigation for those cases where an agency does not have the authority to investigate ([due to the overlap of] multiple agencies or programs) or where DOJ declined criminal prosecution.”

“The division will conduct administrative investigations with IG investigators from affected IC elements to maximize efficiencies, expedite investigations, and enhance partnerships,” the IC IG report said.

Intelligence agencies do not often disclose statistical information about leaks, but the reported figure of 375 leak cases exceeds previously reported levels by a considerable margin.

In 2010 the FBI said that intelligence agencies had submitted 183 referrals of incidents of unauthorized disclosure of classified information to the Department of Justice during a five year period from 2005 to 2009.  Those referrals resulted in 26 leak investigations, and the subsequent identification of 14 suspects. (“FBI Found 14 Intel Leak Suspects in Past 5 Years,” Secrecy News, June 21, 2010).

The newly disclosed Inspector General report also included several other points of interest regarding intelligence community policy.

The IG said that plans to generate auditable financial statements prepared by five intelligence agencies — CIA, DIA, NSA, NGA and ODNI — were not adequate.  “We found no reasonable assurance that based on the plans we reviewed, any of the five entities would be able to achieve an unqualified opinion on their FY 2015 or FY 2016 financial statements,” the IG report said.

The IG said that its Hotline for submitting complaints “provides a confidential and reliable source for IC employees and contractors and the public to report fraud, waste, and abuse. Since the stand up of the IC IG in November 2011, the Hotline has received 105 contacts from the IC and the general public,” the June 2012 report said.

Presidential Policy Directive 19 on Protecting Whistleblowers with Access to Classified Information, issued by President Obama in October 2012, is intended to enhance protections for intelligence community whistleblowers and to prohibit retaliation against them.  But it does not mention intelligence community contractors, observed Angela Canterbury of the Project on Government Oversight, and on its face, the Directive does not appear to extend protections to them.

The IC IG says it is well-positioned “to address the most critical problems facing the IC today. Information sharing, implementation of intelligence collection authorities under the USA PATRIOT Act and FISA Amendments Act, IC contractor fraud schemes, and unauthorized disclosures are just a few of the IC-wide issues that the IC IG will address,” the report said.

In December 1974, when a previous program of secret government surveillance was revealed by Seymour Hersh in the New York Times, the ensuing public uproar led directly to extensive congressional investigations and the creation of new mechanisms of oversight, including intelligence oversight committees in Congress and an intelligence surveillance court.

The public uproar over the latest disclosures of secret domestic surveillance by The Guardian and the Washington Post different cannot produce a precisely analogous result, because the oversight mechanisms intended to correct abuses already exist and indeed had signed off on the surveillance activities.  Those programs are “under very strict supervision by all three branches of government,” President Obama said Friday.  In some sense, the system functioned as intended.

Nevertheless, all three branches of government performed badly in this case, by misrepresenting the scope of official surveillance, misgauging public concern and evading public accountability.

Official Dissembling and Misrepresentation

The executive branch has repeatedly issued misleading statements about its surveillance programs.

Sen. Ron Wyden asked DNI James Clapper at a March 12, 2013 hearing “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

DNI Clapper replied “No, sir.” He added “Not wittingly. There are cases where they could, inadvertently perhaps, collect — but not wittingly.”

That was not an accurate statement.  Perhaps DNI Clapper misheard the question or misunderstood it, or perhaps he judged that denial was the proper course of action under the circumstances.  But he did not correct the record, and the false statement was left standing.  There is a price to pay in public credibility for such misrepresentation.

On other occasions, executive branch agencies promised declassification of information that they failed to deliver.

In 2010, the Justice Department and the Office of the Director of National Intelligence undertook to declassify opinions of the Foreign Intelligence Surveillance Court that contained “important rulings of law.”

At her 2011 confirmation hearing to be DoJ National Security Division director, Lisa Monaco Congress that “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible….”

But no new Court opinions were ever declassified as a result of this initiative. “As accessible as possible” turned out to mean “not accessible at all.” (Move to Declassify FISA Court Rulings Yields No Results, Secrecy News, May 29, 2012).  Again, official words spoken in public were drained of meaning.

Suppressing Public Oversight

Congressional leaders have repeatedly blocked efforts to provide a modicum of new disclosure and accountability to government surveillance programs.

Some members of the House Judiciary Committee insisted last year that “The public has a right to know, at least in general terms, how often [this surveillance authority] is invoked, what kind of information the government collects using this authority, and how the government limits the impact of these programs on American citizens.”

But when an amendment to require unclassified public reporting on these topics was offered by Rep. Bobby Scott (D-VA), it was defeated 10-19.  For the majority in Congress, the public does not have a right to know these things, not even in general terms.  (Congress Resists Efforts to Reduce Secrecy, Secrecy News, August 6, 2012)

Modest amendments to the FISA Amendments Act offered by Senators Wyden, Udall and Merkley that were intended to increase public reporting and awareness of the scale of surveillance were likewise blocked in the Senate, which renewed the Act without changes. (Intelligence Oversight Steps Back from Public Accountability, Secrecy News, January 2, 2013).  Had these public accountability measures been incorporated into policy, a different future might have unfolded.

Judicial Overreach

Of the three branches, the judicial branch seems least culpable here, since the Foreign Intelligence Surveillance Court, which provides a measure of judicial review of surveillance operations, can only operate within the parameters sought by the executive branch and granted by Congress.

But even here there are concerns about official excess, specifically with respect to the Court order issued by Judge Roger Vinson and disclosed by The Guardian which directed Verizon Business Services to surrender all metadata records of its customers’ telephone calls.

“In our view, the Foreign Intelligence Surveillance Court simply lacks the legal authority to authorize this program of domestic surveillance,” wrote Marc Rotenberg and colleagues at the Electronic Privacy Information Center. They asked Congress to take steps to investigate and clarify the situation.

“The Foreign Intelligence Surveillance Court ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order,” they argued.

Unchecked Secrecy

The common thread underlying all of these deviations from political integrity and public consensus is unchecked official secrecy.  Too much essential information on intelligence surveillance policy has been withheld from public access, thereby inhibiting public debate, precluding informed consent, and inspiring growing cynicism.

The appropriate response must include significant new declassification of surveillance policy and a thorough airing of the issues at stake.  Over the weekend, DNI Clapper made some helpful gestures in this direction.  But more is needed, beginning with release of the Administration’s legal interpretations of its surveillance authorities. In theory, everyone involved has an interest in restoring the credibility and effectiveness of an intelligence oversight system that has not lived up to public expectations.

“Now that the fact of bulk collection has been declassified, we believe that more information about the scale of the collection, and specifically whether it involves the records of ‘millions of Americans’ should be declassified as well,” said Senators Wyden and Udall on Friday. “The American people must be given the opportunity to evaluate the facts about this program and its broad scope for themselves, so that this debate can begin in earnest.”

The Foreign Intelligence Surveillance Court (FISC) told the Senate Intelligence Committee last March that there are “serious obstacles” that would prevent it from preparing summaries of Court opinions for declassification and public disclosure.

The Court was responding to a February 13, 2013 letter from Senators Dianne Feinstein, Jeff Merkley, Ron Wyden and Mark Udall.  They asked the Court to consider “writing summaries of its significant interpretations of the law in a manner that separates the classified facts of the application under review from the legal analysis, so as to enable declassification.”  The proposal stemmed from an amendment to the FISA Amendments Act that was introduced by Sen. Merkley but not adopted.  Sen. Feinstein offered to write a letter to the Court instead.  (Senators Ask Surveillance Court to Summarize Opinions, Secrecy News, February 27, 2013).

FISC Presiding Judge Reggie B. Walton replied in a March 27 letter that the preparation of unclassified (or declassifiable) summaries was not a simple matter.

First, he wrote, any summary would unavoidably involve the loss of legal nuance or technical complexity, creating a likelihood of misunderstanding or confusion.  Second, the legal analysis in most opinions is “inextricably intertwined” with classified information, making an unclassified summary difficult or impossible.  Third, the request would entail current judges summarizing the opinions of previous judges, which could be awkward or misleading.

Judge Walton did not completely dismiss the proposal.  He said that he would encourage the members of the Court “to consider structuring opinions to facilitate declassification, if they believe doing so is warranted in a particular case.”

Still, this shifts the primary declassification burden back to the Justice Department and the intelligence community.  If significant Court rulings are going to be declassified, executive branch agencies will have to be the ones to do it.

The Senate Intelligence Committee had refused to publicly release either its February letter or the FISC’s March reply.  Secrecy News had asked the FISC to release the correspondence and the Court was weighing the request, but the letters were first obtained and disclosed by the New York Times on June 8.

Senators Merkley, Lee, Leahy and Heller said they were preparing to introduce new legislation “to require the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States.”

A former CIA employee and NSA contractor named Edward Snowden identified himself as the source of the the serial revelations of classified documents concerning U.S. intelligence surveillance activities that were disclosed last week.

“I have no intention of hiding who I am because I know I have done nothing wrong,” he told The Guardian newspaper.

“I think that the public is owed an explanation of the motivations behind the people who make these [unauthorized] disclosures that are outside of the democratic model,” he told interviewer Glenn Greenwald in Hong Kong, where he has evidently taken refuge.

“When you are subverting the power of government– that’s a fundamentally dangerous thing to democracy.”

“I’m willing to go on the record to defend the authenticity [of these disclosures]. This is the truth.  This is what’s happening.  You should decide whether we need to be doing this,” he said of his disclosures.

In the history of unauthorized disclosures of classified information, a voluntary admission of having committed such disclosures is the exception, not the norm.  And it confers a degree of dignity on the action.  Yet it stops short of a full acceptance of responsibility. That would entail surrendering to authorities and accepting the legal consequences of “subverting the power of government” and carrying out “a fundamentally dangerous thing to democracy.”

There are occasions when breaching restrictions on classified information may be necessary and appropriate, suggested Judge T.S. Ellis, III of the Eastern District of Virginia in a June 2009 sentencing hearing for Lawrence Franklin, who pleaded guilty to disclosing classified information in the “AIPAC” case.  But in order to reconcile an unauthorized disclosure with the rule of law, he said, it must be done openly.

“I don’t have a problem with people doing that [disclosing classified information to the press] if they are held accountable for it…,” Judge Ellis said. “One might hope that, for example, someone might have the courage to do something that would break the law if it meant they’re the savior of the country; but then one has to take the consequences, because the rule of law is so important.”

“Simply because you believe that something that’s going on that’s classified should be revealed to the press and to the public, so that the public can know that its government is doing something you think is wrong, that doesn’t justify it. Now, you may want to go ahead and do it, but you have to stand up and take the consequences,” Judge Ellis said then.

At the request of the FBI, the Foreign Intelligence Surveillance Court ordered a Verizon subsidiary to surrender the telephone records of its U.S. business customers to the National Security Agency for at least a three month period beginning last April 25.

The startling disclosure was reported last night by Glenn Greenwald of the Guardian. A copy of the Top Secret FISC order itself was also posted online by the Guardian.

Several features of the operation are problematic, to say the least. The FISC order is sweeping in scope, encompassing “all” call metadata (telephone numbers of callers and recipients, time, duration and more, though not the substantive contents of any conversation). It is unfocused on any designated target of investigation. It is prospective, requiring reporting of future telephone calls that have not yet taken place. And as such, it would seem to exceed any reasonable presumption of what the consent of the governed would allow.

At first glance, this appears to be a massive overreach by the government, as well as a massive failure of congressional oversight and judicial review to curb the Administration’s excess. (NYT, WP, WSJ)