Do the security clearance procedures that are used for granting access to classified information actually serve their intended purpose?

To help answer that question, the Senate Intelligence Committee mandated a review of security clearance requirements, including “their collective utility in anticipating future insider threats.”

See the Committee’s new report on the Intelligence Authorization Act for Fiscal Year 2018, filed September 7, 2017.

The report summarizes the content of the pending intelligence authorization bill (S. 1761), which was filed last month, and adds Committee comments on various aspects of current intelligence policy.

So, for example, “The Committee remains concerned about the level of protection afforded to whistleblowers within the IC and the level of insight congressional committees have into their disclosures.”

The central point of contention in the bill is a provision (sec. 623) declaring a sense of Congress “that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.”

The provision had originally stated that WikiLeaks and its leadership “constitute” a non-state hostile intelligence service. But this was amended to replace “constitute” with “resemble”. That move might have attenuated the provision’s significance except that it went on to say — whether WikiLeaks constitutes or merely resembles a non-state hostile intelligence service — that the U.S. should treat it as such.

A hostile state-based intelligence service would presumably be subject to intense surveillance by the US. A competent US counterintelligence agency might also seek to infiltrate the hostile service, to subvert its agenda, and even to take it over or disable it.

Whether such a response would also be elicited by “a non-state hostile intelligence service” is hard to say since the concept itself is new and undefined.

“The Committee’s bill offers no definition of ‘non-state hostile intelligence service’ to clarify what this term is and is not,” wrote Sen. Kamala Harris, who favored removal of this language, though she said WikiLeaks has “done considerable harm to this country.”

Sen. Ron Wyden, who likewise said that WikiLeaks had been “part of a direct attack on our democracy,” opposed the bill due to the WikiLeaks-related provision.

“My concern is that the use of the novel phrase ‘non-state hostile intelligence service’ may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets,” Sen. Wyden wrote in minority views appended to the report. “The language in the bill suggesting that the U.S. government has some unstated course of action against ‘non-state hostile intelligence services’ is equally troubling.”

Executive branch agencies that are not part of the US Intelligence Community (IC) can still get access to classified intelligence and to IC information technology systems under certain conditions.

But they must follow procedures that were spelled out last month in new policy guidance from Director of National Intelligence Daniel R. Coats.

In a nutshell, the non-IC agency must have an identifiable need for access to intelligence information and must be able to meet required physical security standards for safeguarding the information.

“The originating [IC] element must receive confirmation from the [non-IC] Federal Partner that all applicable safeguarding requirements in law and policy are met prior to gaining access to the data.”

See Federal Partner Access to Intelligence Community Information Technology Systems, Intelligence Community Policy Guidance 404.1, June 16, 2017.

The Director of the Central Intelligence Agency is responsible for monitoring the activities of non-IC personnel who are present on IC networks “to ensure access is consistent with U.S. legal and policy requirements, and report any variance.”

The Defense Intelligence Agency yesterday launched a new series of unclassified publications on foreign military threats to the United States with a report on the Russian military.

“The resurgence of Russia on the world stage — seizing the Crimean Peninsula, destabilizing eastern Ukraine, intervening on behalf of Syrian President Bashar al-Assad, and shaping the information environment to suit its interests — poses a major challenge to the United States,” the report said.

The 116-page report provides DIA data and perspective on Russian military strategy, force structure, defense spending, intelligence, nuclear weaponry, cyber programs, foreign arms sales, and more. Though unclassified and citing open sources, it is presumably consistent with DIA’s classified collection. See Russia Military Power 2017 published by the Defense Intelligence Agency, June 2017.

The new publication is inspired by the Soviet Military Power series that was published by DIA in the 1980s to draw critical attention to Soviet military programs. Both informative and provocative, Soviet Military Power was immensely popular by government document standards though it was viewed by some critics as verging on, or crossing over into, propaganda.

The new report usefully describes official US perceptions of Russian military programs and intentions, allowing those perceptions to be scrutinized, discussed and corrected as necessary. “These products are intended to foster a dialogue between U.S. leaders, the national security community, partner nations, and the public,” DIA said.

A companion report on China Military Power, among others, is expected to be published shortly.

The National Reconnaissance Office, the U.S. intelligence agency that builds and operates the nation’s spy satellites, says it is all for increased openness, within certain boundaries.

“The NRO takes very seriously its commitment to greater openness and transparency, and makes every effort, in all of its information review and release programs, to release as much information as we can while still protecting our sensitive sources and methods from harm,” the NRO wrote in a newly disclosed report.

But there are practical limits on what can be accomplished, NRO said:

“While the goal of increasing discretionary declassification decisions is a noble one, we believe that such an effort requires a program separate and distinct from the existing systematic, automatic, mandatory, and other release programs; that establishing a new program is counterproductive given our current resource constraints; and that such an endeavor is unnecessary given our current declassification efforts.”

See NRO Responses on Feasibility of Certain Classification Policy Reforms, February 28, 2017, released last week under the Freedom of Information Act. The NRO document was prepared in response to questions posed last year by then-Director of National Intelligence James R. Clapper, Jr.

While currently operational reconnaissance programs are excluded from declassification review, NRO says it “already examines all [other] classified material that comes up for review for declassification regardless of its age, or under what circumstances it has been requested. If we determine that we cannot articulate harm in release, we consider it for declassification and release.”

In sum, “while we do not look proactively for new items to declassify, we do take a forward-leaning approach to performing declassification reviews by going beyond the ‘can we protect this?’ question to asking ‘do we really need to protect this?'”

NRO said that it could do still more to increase disclosure by reviewing classification guidance, anticipating recurring requests, and improving classification management practices. “We believe these measures, over time, will help eliminate over-classification and make much more material available for public release,” NRO said.

Considering that even the name of the National Reconnaissance Office was considered classified information 25 years ago, until it was declassified by former NRO director Martin Faga in September 1992, the NRO has come quite some distance into the daylight.

It has a substantial presence online, with an electronic reading room featuring numerous declassified records of historical interest. NRO is also the first U.S. intelligence agency to successfully undergo a financial audit.

DNI Clapper had specifically asked last year whether intelligence agencies could do more, consistent with 32 CFR 2001.35, to “declassify information when the public interest in disclosure outweighs the need for continued classification.”

This is harder than it sounds, NRO replied. It presumes that the public interest in disclosure and the need for classification can each be measured, or “weighed,” and then meaningfully compared to determine which is the weightier factor. Neither of those presumptions may be correct. For agency officials, the decision whether or not to declassify is likely to be more of a judgment call than a calculation.

“The CFR does not provide a threshold to assist organizations in determining at what point ‘public interest in disclosure outweighs the need for continuing classification’,” NRO wrote. “The NRO would require clarification and further guidance to assist us in gauging when the public interest outweighs the need to protect our currently classified programs.”

In fact, it is probably not realistic to expect agencies such as NRO to second-guess their own classification decisions on behalf of the public interest. Rather, the authority to exercise a public interest override of classification decisions should be vested in a higher-level body such as the Interagency Security Classification Appeals Panel that would be empowered to consider and to act on broad national and public interests. If that were done, then new procedures would also be needed for interested members of the public to present a public interest argument to that higher-level body for its consideration.

The Trump Administration requested $57.7 billion for the National Intelligence Program in Fiscal Year 2018, up from a requested $54.9 billion in FY 2017.

The Administration requested $20.7 billion dollars for the Military Intelligence Program in FY 2018, up from a requested $18.5 billion in FY 2017. (The amounts actually appropriated in FY 2017 have not yet been disclosed.)

The intelligence budget request figures were published last week by the Office of the Director of National Intelligence and by the Department of Defense.

The annual disclosure of the requested amount for the National Intelligence Program was mandated by Congress in the Intelligence Authorization Act for FY 2010. So disclosure is required regardless of the preferences of the current Administration. “As directed by statute,” wrote DNI Dan Coats this year in advance of his confirmation hearing, “I will ensure that the public release of figures representing aggregate funds requested by and appropriated for the IC is completed annually.”

Interestingly, however, there is no corresponding statutory requirement for disclosure of the requested amount for the Military Intelligence Program. The practice of voluntarily disclosing the MIP budget request was initiated by Gen. James R. Clapper when he was Under Secretary of Defense (Intelligence).

“I did that,” said then-DNI Clapper in December 2015. “I thought the public had a right to know.”

Updated below

President Trump’s disclosure of classified intelligence information to Russian officials, reported by the Washington Post, may have been reckless, damaging and irresponsible. But it was not a crime.

Disclosures of classified information are not categorically prohibited by law. Even intelligence sources and methods are only required to be protected under the National Security Act from “unauthorized disclosure.” This leaves open the possibility that disclosures of such classified information can actually be authorized. And we know that they are, from time to time.

One statute in particular — 18 USC 798 — does come close to matching the circumstances of the Trump disclosure to Russia, with a crucial exception.

That statute makes it a felony to disclose to an unauthorized person any classified information “concerning the communication intelligence activities of the United States or any foreign government; or […] obtained by the processes of communication intelligence from the communications of any foreign government.”

But it further explains that an “unauthorized person” is one who has not been “authorized to receive information… by the President.”

This morning, President Trump tweeted that “As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.”

(Was the gratuitous parenthetical phrase “at an openly scheduled W.H. meeting” intended to rule out a clandestine transfer of classified information?)

All of that is to say that this episode, though it may have far-reaching ramifications for national security, is probably not a matter for law enforcement. (Based on the reporting by the Washington Post, the President’s actions did violate the terms of an intelligence sharing agreement with a foreign government that supplied the information. But that agreement would not be enforced by the criminal justice system.)

Instead, this is something to be weighed by Congress, which has the responsibility to determine whether Donald J. Trump is fit to remain in office.

Update, 05/17/17: For contrasting views arguing that Trump’s disclosure of classified intelligence to the Russians may actually have been illegal, see Marty Lederman and David Pozen, Liza Goitein, and Stephen Vladeck.

Update, 05/23/17: See also Trump’s Disclosure Did Not Break the Law by Morton Halperin, Just Security, May 23.

There are at least four major “strategic security challenges” that could place the United States at risk within the next decade, physicist Richard L. Garwin told the National Academy of Sciences earlier this month.

“The greatest threat, based on expected value of damage, is cyberattack,” he said. Other challenges arise from the actions of North Korea and Iran, due to their pursuit or acquisition of nuclear weapons and/or missiles. The remaining threat is due to the potential instability associated with the existing U.S. nuclear weapon arsenal.

These four could be ordered, he said, by the relative difficulty of reducing the threat, from “easiest” to hardest: “the Iranian nuclear program; North Korea; the U.S. nuclear weapon capability and its evolution; and, finally, most importantly and probably most difficult of solution, the cyber threat to the United States.”

In his remarks, Garwin characterized each of the challenges and discussed possible steps that could be taken to mitigate the hazards involved. See Strategic Security Challenges for 2017 and Beyond, May 1, 2017.

Among many other things, Dr. Garwin is a former board member of the Federation of American Scientists. He was awarded the Presidential Medal of Freedom by President Obama last November. He was the subject of a biography published earlier this year called True Genius by Joel Shurkin. Many of his publications are archived on the FAS website.

Most of the threats identified by Garwin — other than the one posed by the U.S. nuclear weapon arsenal — were also discussed in the Worldwide Threat Assessment of the US Intelligence Community that was presented to the Senate Intelligence Committee on May 11.

Neither Garwin nor the US Intelligence Community considered the possibility that the US Government could ever be threatened from within. But that is what is now happening, former Director of National Intelligence James R. Clapper told CNN on May 14.

“I think […] our institutions are under assault internally,” Clapper said, referring to recent actions by President Trump, including the abrupt termination of FBI director James Comey. “The founding fathers, in their genius, created a system of three co-equal branches of government and a built-in system of checks and balances,” he said. “I feel as though that is under assault and is eroding.”

When government officials consider whether to classify national security information, they should not aim for perfect security, according to new guidance from the Office of the Director of National Intelligence. Instead, classifiers should seek to limit unnecessary vulnerabilities, while keeping broader mission objectives in view.

“A Risk Avoidance strategy — eliminating risk entirely — is not an acceptable basis for agency [classification] guides because it encourages over-classification, restricts information sharing, [and] hinders the optimal use of intelligence information in support of national security and foreign policy goals,” the ODNI document said.

Rather, “All agencies should reflect in their classification decisions a Risk Management strategy — mitigating the likelihood and severity of risk — in protecting classified information over which they have [classification authority], including clear descriptions in their classification policies of how the strategy is used when making classification determinations.” See Principles of Classification Management for the Intelligence Community, ODNI, March 2017.

This risk management / risk avoidance dichotomy in classification policy has been batted around for a while. It was previously discussed at length in in the thoughtful but not very consequential 1994 report of the Joint Security Commission on Redefining Security in the post-cold war era.

“Some inherent vulnerabilities can never be eliminated fully, nor would the cost and benefit warrant this risk avoidance approach,” the Commission wrote. “We can and must provide a rational, cost-effective, and enduring framework using risk management as the underlying basis for security decision making.”

In short, it is only realistic to admit that some degree of risk is unavoidable and must be tolerated, and classification policy should reflect that reality.

But the risk management construct is not as helpful as one would wish. That is because its proponents, including the Joint Security Commission and the authors of the new ODNI document, typically stop short of providing concrete examples of information that risk avoiders would classify but that risk managers would permit to be disclosed. Without such illustrative guidance, risk management is in the eye of the beholder, and we are back where we started.

Meanwhile, there is persistent dissatisfaction with current secrecy policy within the national security bureaucracy itself.

Classifying too much information is “an impediment to our ability to conduct our operations,” said Air Force Gen. John Hyten of U.S. Strategic Command at a symposium last week (as reported by Phillip Swarts in Space News on April 6).

“We have so many capabilities now,” Gen. Hyten said. “There are all these special classifications that I can’t talk about, and if you look at those capabilities you wonder why are they classified so high. So we’re going to push those down.”

The National Security Agency is proposing to expand and modernize its headquarters site at Fort Meade, Maryland.

“For NSA/CSS to continue leading the Intelligence Community into the next 50 years with state-of-the-art technologies and productivity, its mission elements require new, centralized facilities and infrastructure,” according to a newly released Final Environmental Impact Statement for the site.

Under the proposed action, “The NSA would consolidate mission elements, which would enable grouping services and support services across the NSA Campus based on function; facilitate a more collaborative environment and optimal adjacencies; and provide administrative capacity for up to 13,300 personnel, including 6,100 personnel who currently work on the existing NSA Campus and 7,200 personnel currently located off site.”

The proposal envisions the construction and operation of “approximately 2,880,000 square feet of operational complex and headquarters space consisting of five buildings.” If approved, construction would take place “over a period of approximately 10 years (FY 2019 to 2029).”

See Final Environmental Impact Statement for the East Campus Integration Program, Fort Meade, Maryland, March 2017 (large pdf).

In confronting Russia and rebutting its claims, the United States is hampered by unnecessary or inappropriate classification of national security information, according to former Pentagon official and Russia specialist Evelyn Farkas.

“We are not very good at declassifying and reclassifying information that is not propaganda, showing pictures of what the Russians are doing,” Dr. Farkas told the House Armed Services Committee last year.

“We did it a couple of times, and interestingly, the Open Skies Treaty was actually useful because, unlike satellites, that is unclassified data that is gleaned as a result of aircraft that take pictures for the purposes of our treaty requirements.”

“But in any event, I think that we can do more just by getting some information out. That is the minimum that the State Department could do and should do, together with the intelligence community. But it should also be a push, not a pull–not leaders like yourselves or executive branch members saying, ‘Declassify that,’ but actually the intelligence community looking with the State Department, ‘What should we declassify?’ not waiting for somebody to tell them to do it,” she said.

See Understanding and Deterring Russia: U.S. Policies and Strategies, House Armed Services Committee, February 10, 2016 (published January 2017).

The same hearing featured testimony from Fiona Hill of the Brookings Institution. She has just been offered a position in the Trump White House as senior director for Europe and Russia, Foreign Policy reported today. See Trump Taps Putin Critic for Senior White House Position, by John Hudson, March 2.

“Putin is a professional secret service operative,” Ms. Hill told the House Armed Services Committee. “He is very unusual among world leaders at present. Putin has also been trained to conceal his true identity and intentions at all times. This is what makes him particularly difficult to deal with.”

Meanwhile, yesterday the National Reconnaissance Office successfully launched a new U.S. spy satellite aboard an Atlas V rocket — that was powered by a Russian RD-180 engine. (“All in a day’s work,” tweeted Bill Arkin.)

Though it might seem incongruous that U.S. intelligence collection would be dependent on Russian space technology, that is how things stand and how they are likely to remain for some time.

“Goodness knows we want off the Russian engine as fast as any human being on the planet,” said Gen. John E. Hyten of US Air Force Space Command. “We want off the Russian engine as fast as possible.”

But there is a but. “But, asking the American taxpayers to write a check for multiple billions of dollars in the future for an unknown is a very difficult thing to do, and for the Air Force, that will be a very difficult budget issue to work,” Gen. Hyten told the House Armed Services Committee last year.

Pentagon official Dyke Weatherington concurred: “The Department continues to be dedicated to ending use of the Russian manufactured RD-180 engine as soon as reasonably possible, but still believes that access to the RD-180 while transitioning to new and improved launch service capabilities is the optimal way forward to meet statutory and Department policy requirements for assured access to space in both the near and long term.”

Even a new US-manufactured rocket engine will not suffice, Mr. Weatherington added. “Any new engine still has to be incorporated into a launch vehicle. The Department does not want to be in a position where significant resources have been expended on an engine and no commercial provider has built the necessary vehicle to use that engine.”

Their testimony was presented at a 2016 hearing on military and intelligence space programs that has recently been published. See Fiscal Year 2017 Budget Request for National Security Space, House Armed Services Committee, March 15, 2016.

Collection of more intelligence-related information does not necessarily translate into better intelligence.

“Because of limitations associated with human cognition, and because much of the information obtained in war is contradictory or false, more information will not equate to better understanding.”

What makes that sensible observation doubly interesting is that it was written by Lt.Gen. H.R. McMaster, the newly designated National Security Advisor to President Trump.

It appears in the Foreword to the updated U.S. Army Functional Concept for Intelligence, 2020-2040, TRADOC Pamphlet, 525-2-1, February 2017.

The Army document, a somewhat speculative and aspirational look into the future of Army intelligence, presents a stark view of future threats, projected intelligence gaps, and directions forward. Some excerpts:

“International conditions will change more rapidly based on the increased velocity and momentum of human interactions and events. Technologies will become universally available and create a potential to overmatch U.S. capabilities. Weapons of mass destruction (WMD) proliferation among state and nonstate actors will pose an increased threat to U.S. security interests. Advanced cyberspace and counter-space capabilities will spread to state and nonstate actors, allowing them to protect their access and disrupt or deny access to others. Operations will occur among populations in cities and complex terrain.”

“Geospatial databases support the understanding of existing infrastructure and potential entry points but do not fully address the complexities of large urban centers, such as megacities. Country studies establish an overview, but city studies and transnational studies are lacking. While infrastructure and order of battle information remain valid, understanding networked and transnational enemy organizations, social media, and biometric identity information have equal or greater importance in some missions. Commanders must also understand critical infrastructure, assets, and terrain in the cyberspace domain. Nonstate ideological movements or political competition may drive national and subnational change more rapidly than conventional analysis may indicate. Proliferation of technology and WMD between states and nonstate actors disrupts normalcy faster than country studies can update.”

“Current information collection techniques are not robust enough to understand the rapidly changing urban environment. The speed of human interaction is greatest in a large urban environment. Operations in urban environments are not traditional adversary centric problems — the environment itself offers significant challenges to a conventional force and provides ample concealment to the enemy. Social networking, flows, infrastructure layering, radical variations by neighborhood, multiple authority structures, and others, complicate information collection against populations, infrastructure, and physical environment signatures. Government, religious, economic, and ideological actors use social and traditional public media to influence the population. Understanding the environment requires collecting and exploiting relevant signatures, many of which are either as of yet undiscovered, or lack sufficient technical exploitation to be useful.”

“Population and structural and signal density in urban environments produce physical and virtual clutter that reduces the effectiveness of intelligence collection, and complicates target acquisition. Market saturation of cell phones and other web-enabled devices produce a signal dense environment which complicates target acquisition and SIGINT collection…. Increasing proliferation of personal mobile communications is making connectedness more robust at the personal level adding to the difficulty of identifying relationships. The density of information and communications technologies may slow our ability to identify actionable intelligence.”

Meanwhile, the document says, the Army should anticipate “budget and force reductions.”

“Fiscal constraints demand near-term solutions that preserve the balance of readiness, force structure, and modernization necessary to meet the demands of the national defense strategy now, while setting the stage to begin evolving the force in the mid-term (2020-2030) and bringing innovative solutions to fruition to meet the challenges of the far-term (2030-2040).”

Domestically, “Legal constraints govern intelligence support to operations conducted within the homeland, specifically Defense Support to Civil Authorities (DSCA) and homeland defense. The U.S. is a litigious environment within which the Army operates; intelligence leaders must understand the role legal limitations and authorities play in shaping intelligence support.”

The National Reconnaissance Office (NRO) has modified its classification policies in favor of heightened secrecy, withholding budget records that were previously considered releasable and redesignating certain unclassified budget information as classified.

NRO is the U.S. intelligence agency that builds and operates the nation’s intelligence satellites.

Since 2006, and for most of the past decade, the NRO has released unclassified portions of its budget justification documents in response to requests under the Freedom of Information Act.

But in a January 23, 2017 letter, the NRO said it would no longer release that unclassified budget information, which it now deems classified.

“The NRO has determined that a series of unclassified items in the [FY 2016 budget justification] document in the aggregate reveals associations or relationships not otherwise revealed in the unclassified items individually; thus, in the aggregate, this information meets the standard for classification under E.O. 13526 Section 1.7(e),” wrote Patricia B. Cameresi, NRO FOIA Public Liaison, in her FOIA denial letter.

As a purely technical matter, the latter claim is probably a misreading of the Executive Order, which states in Section 1.7(e):

“Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that:  (1) meets the standards for classification under this order; and (2) is not otherwise revealed in the individual items of information.”

Properly understood, the fact that various unclassified items reveal additional information in the aggregate does not mean that those items meet the standard for classification. That requires a separate determination which, in any case, is discretionary. Classifying compilations of unclassified budget information is a threshold which was never crossed in the past and which has not been explicitly justified by NRO here.

The NRO also invoked a statutory exemption in 10 USC 424, which says that NRO (along with DIA and NGA) cannot be compelled to disclose “any function” at all.

The upshot is that the NRO is abandoning the budget disclosure practices of the past decade, and is positioning itself to withhold anything and everything that it prefers not to release.

An administrative appeal of the NRO FOIA denial was filed yesterday.