The notion of “intelligence transparency,” which once would have been considered an oxymoron, is instead becoming institutionalized with the establishment of a new Intelligence Transparency Council. Director of National Intelligence James Clapper signed the Charter of the new Council on April 5.

The Council includes representatives of each of the 17 Intelligence Community member agencies. Its role is to identify and promote appropriate areas for intelligence-related transparency and specifically to coordinate and oversee the implementation of the 2015 Principles of Intelligence Transparency.

For a start, the Council is supposed to “ensure that the public has information that clearly presents the mission, authorities, and oversight mechanism that direct and guide the IC.”

Beyond that, it will also “serve as the principal mechanism to identify possible new priority IC transparency topics to be selected by the DNI and IC leadership for implementation” and it will “establish interagency working groups to address specific transparency topics, as appropriate, in order to advance IC transparency efforts.”

As an inward-looking body that mostly meets behind closed doors, the Intelligence Transparency Council seems to be an internal forum for grappling with questions of increased disclosure, rather than an obvious public relations ploy. The Charter envisions votes and procedures for resolving disagreements, implying that the Council could serve a decision-making function.

Significantly, the Charter signed last week by DNI Clapper will remain in effect for five years. This means that “intelligence transparency” is likely to endure as a problem and a challenge well into the next Administration.

Director of National Intelligence James R. Clapper threw his weight behind the upcoming Fundamental Classification Guidance Review (FCGR), which requires executive branch agencies to review all of their classification guidance and to eliminate obsolete secrecy requirements every five years. (On the FCGR, see “Secrecy System to Undergo ‘Thoughtful Scrutiny’,” Secrecy News, March 28).

In an extraordinary memorandum sent to directors of five other intelligence agencies (CIA, DIA, NGA, NSA, and NRO), Director Clapper told them to seize the opportunity to overhaul current classification policy.

“This periodic review provides an ideal platform for the Intelligence Community (IC), as stewards of the nation’s most sensitive information, to take a leading role in reducing targeted classification activities that could extend to the larger Federal government,” Clapper wrote in his March 23 memo.

Ordinarily, the nuts and bolts of the classification system would be beneath the concern of senior agency officials. But DNI Clapper’s intervention changes that presumption. In effect, the Clapper memo focuses attention on what would otherwise be a routine mid-level bureaucratic function and elevates it to a senior-level imperative.

“I am requesting your personal involvement,” he wrote, instructing the intelligence agency directors to perform several additional steps above and beyond what the Fundamental Classification Guidance Review already requires.

Clapper asked for feasibility studies on reducing the number of IC Original Classification Authorities, on the utility of an IC-wide classification guide, on the elimination of the Confidential classification in the IC, and on a new initiative to promote discretionary declassification actions.

“Please comment on what would be required to implement a proactive discretionary declassification program distinct from the systematic, automatic, and mandatory declassification review programs” that already exist, the DNI wrote.

The history of secrecy reform in the U.S. government demonstrates that it is most effective — or that it is only effective — when it is driven by senior agency leadership. Not since Secretary of Energy Hazel O’Leary’s “openness initiative” in the 1990s has an agency head endorsed secrecy reform with the specificity and authority expressed by DNI Clapper.

“I believe your efforts will serve as a significant step forward in furthering our shared goals for greater openness and reduced classification activity while protecting legitimate national security interests,” he wrote to the intelligence agency directors.

For the coming decade, the Department of Defense Military Intelligence Program (MIP) will focus its new investments “on space protection, enhancing capabilities that provide intelligence in Anti-Access / Area Denial environments, improving intelligence support to Cyber operations, and improving Security.”

So says the FY 2016 Congressional Budget Justification Book for the MIP, which was released this week in heavily redacted form under the Freedom of Information Act.

Though the majority of the document has been withheld, the released portions nevertheless contain fragmentary observations of interest.

For example, “budget uncertainty impeded efforts to develop and maintain language professionals at the highest levels of proficiency to meet the challenges posed by our adversaries.”

“DoD fell two points short of meeting its FY 2014 target to fill 52% of Defense Intelligence Enterprise government authorized language-required positions with individuals possessing the required language proficiency, with a total fill rate of 49.4%.”

Earlier this month, the National Geospatial-Intelligence Agency also released minimal unclassified portions of its FY2015 Congressional Budget Justification Book.

The “existence of the Office of the Director of National Intelligence (ODNI)” is Unclassified. So is “the fact that ODNI Headquarters is located within the Liberty Crossing Compound in the Tyson’s Corner Area of Virginia.”

However, “the names and abbreviations of ODNI locations in the Washington Metropolitan Area, both overt and covert” are classified Secret.

These determinations and many others of interest are compiled in a newly released ODNI Classification Guide, Version 2.1, September 30, 2014. The declassified Classification Guide was released by ODNI with limited redactions in response to a Freedom of Information Act request filed by Stephen Revilak.

“The Guide implements ODNI classification policy and procedures for the use and dissemination of ODNI national security information,” the document states.

It covers a wide range of intelligence policy, technology and operational areas involving ODNI that are potentially subject to classification. (Unfortunately, portions of the document released by ODNI are poorly scanned and several pages are cut off at the bottom. Hopefully, a corrected version will soon follow.) [Now fixed.]

“The absence of an item in the Guide does not imply that it is Unclassified,” the reader is cautioned.

Moreover, “The fact that some ODNI information is marked unclassified does not authorize public release,” the Guide states.

The Director of National Intelligence exercises authority and maintains global awareness through a network of DNI Representatives deployed across the intelligence community and around the world.

“DNI Representatives serve as the principal advisors to their assigned organizations for IC matters, as a conduit between the DNI and their assigned organizations, and as the DNI’s personal representatives to a variety of U.S. and foreign partners and international organizations,” according to a declassified December 2009 Intelligence Community Directive that was made public last week. See DNI Representatives, ICD 402, 23 December 2009, amended 06 September 2012.

DNI Representatives help to execute DNI policies and to collect information for reporting back to the DNI.

That is, they both “facilitate and monitor the implementation of DNI direction, policies, and procedures” and they “promptly inform the DNI or his designee of significant issues, operations, or incidents.”

And in language that recalls the broadly permissive statutory provision for CIA covert action, the Directive says that DNI Representatives will also “Perform other duties as the DNI determines.”

“Organizations and locations to be considered for DNI Representatives include U.S. Diplomatic Missions; military organizations; organizations where there is a large IC presence, diverse mission requirements, significant interaction with foreign intelligence and security services or international organizations; and other places deemed appropriate,” the Directive says.

A prior version of Intelligence Community Directive 402 (dated May 19, 2009) generated friction between then-DNI Dennis C. Blair and the Central Intelligence Agency because it asserted that the DNI could appoint his own Representatives in foreign countries to serve alongside the CIA station chiefs in those countries. CIA resisted that assertion and reportedly prevailed.

The revised directive now states that “In all cases the Central Intelligence Agency (CIA) Chief of Station shall serve as the DNI Representative [classified phrase deleted].”

However, “In instances where the DNI believes that a Chief of Station is not performing effectively his essential functions as a DNI Representative, the DNI shall convey his concerns directly to the Director of the CIA, and may recommend that the individual be removed if those concerns have not been resolved to the satisfaction of the DNI within a period of six months.”

“We do not have the full picture of who is working for the Intelligence Community as contractors, or why,” said Senator Thomas Carper at a June 2014 hearing, the record of which was just published last week.

See The Intelligence Community: Keeping Watch Over Its Contractor Workforce, Senate Homeland Security and Governmental Affairs Committee, June 18, 2014, published March 18, 2016.

The hearing record is of particular interest as a reflection of the revived intelligence oversight role assumed by the Government Accountability Office (GAO) following the issuance of 2014 Intelligence Community Directive 114, which authorized GAO access to intelligence information under certain circumstances.

“That new Intelligence Community Directive, I think that did establish a good framework for us to move forward,” said GAO’s Timothy J. DiNapoli at the hearing. “It gave us an approach for a presumption of cooperation. It prevented the categorical denial of information, and access to much of the information on a more formal basis.”

And the Intelligence Community apparently responded to the GAO engagement constructively.

“We thought the responses to the draft report and the recommendations were solid,” Mr. DiNapoli said. “I actually thought that the Director [of National Intelligence] provided cogent responses saying here are some specific steps we are going to take with regard to improving information on the methodology; we are going to ask for that information so we will have a better handle on it.”

For her part, ODNI Principal Deputy Director Stephanie O’Sullivan also testified in support of the GAO role in intelligence oversight.

“The only way to really approach this–and this is what I tell my management organization–is by looking at this as an opportunity to see that which you are missing. It is that old adage of when you are in college and you typed a term paper, you could read that paper 50 times and read right over the typo every time. You just simply cannot see that which is the norm to you.”

“You need outside eyes to help you find problems,” Ms. O’Sullivan said, “and that is about the basic credo of IGs and GAO, to make the function of government more efficient and effective.”

A series of Questions for the Record appended to the newly published hearing volume addressed the issue of “Why have the number of contractors and the cost of contracts been classified?”

In response to criticism of the hefty fees that could be charged to public requesters in its new Mandatory Declassification Review (MDR) rule, the Office of the Director of National Intelligence has agreed to modify the rule.

The revised rule will adopt the more flexible and forgiving approach used in ODNI’s Freedom of Information Act (FOIA) program.

“We will pull back the MDR rule and swap out the fee structure there for the fee structure in the FOIA policy,” said Jennifer Hudson, director of the ODNI Information Management Division.

This represents a substantial change. In comments on the rule submitted yesterday by the Federation of American Scientists, we recommended such a change. We noted that the MDR fee schedule was inconsistent in several respects with existing law and policy and, in particular, that it differed from the cost recovery procedures in ODNI’s FOIA program:

*     The MDR rule would charge 50 cents per page for photocopying, but ODNI charges only 10 cents per page for responses to FOIA requests.

*     The MDR rule would have made requesters responsible “for paying all fees,” but ODNI always waives costs of $10 or lower under FOIA.

*     The MDR rule did not provide for discretionary fee waivers for public interest or other reasons, but the FOIA policy does.

Now all of these discrepancies will be eliminated. Perhaps most significantly, “We will also make sure that there is room [in the MDR process] for discretion in charging fees,” Ms. Hudson said in an email message. “I’m sure you know from looking at our FOIA reports that we have exercised our discretion to not charge fees quite a bit in the past.”

She noted, however, that “The search/review charges are identical” under the proposed MDR rule and under FOIA. “FOIA just breaks [the charges] down into 15 minute increments where the MDR rule is by the hour. The end result is the same.”

“At the end of the day, I don’t think it will make as much of a difference as people think,” she said.

Updated below, twice

Anyone who submits a mandatory declassification review request to the Office of the Director of National Intelligence seeking release of classified records “shall be responsible for paying all fees” resulting from the request, according to a new ODNI regulation.

And those fees are considerable.

A search for a requested document costs from $20-$72 per hour. Document review runs $40-$72 per hour. And photocopying costs fifty cents per page, the new ODNI regulation said. It was published in the Federal Register on Friday, with a request for public comments.

The mandatory declassification review (MDR) process was established by executive order 13526 to permit requests for declassification of information that no longer meets the standards for national security classification. The executive order’s implementing directive states that fees may be charged for responding to MDR requests for classified records.

But the proposed ODNI fees seem extravagant on their face. No commercial enterprise charges anything close to fifty cents to photocopy a single page. Neither do most of ODNI’s peer agencies.

The Department of Defense permits (though it does not require) DoD agencies to charge fees for search, review and reproduction (pursuant to DoD Manual 5230.30-M). But the DoD schedule of fees is well below the proposed ODNI rate.

Instead of fifty cents per page, DoD charges thirteen cents. Instead of up to $72 per hour for search and review, DoD charges no more than $52.60 per hour. ODNI wants $10 for a CD, but DoD asks only $1.25. (See DoD 7000.14-R, Volume 11A, Chapter 4, Appendix 2, Schedule of Fees and Rates, at page 4-13).

And while ODNI would make requesters liable for “all fees,” DoD says that “Fees will not be charged if the total amount to process your request is $30.00 or less.”

Similarly, at the Department of State, “Records shall be duplicated at a rate of $.15 per page.”

In a 2011 rule, the Central Intelligence Agency did mandate a fifty cent per page photocopy fee for MDR requests, as well as a $15 minimum charge. But the CIA policy was suspended in response to public criticism and a legal challenge from the non-profit National Security Counselors. That challenge is still pending.

“There is nothing unusual about these fees,” CIA told a court in 2014 in response to the legal challenge. “And the reproduction costs are similar to those employed by other agencies.” CIA noted that a National Archives regulation sets reproduction costs as high as 75 cents per page. (Last year it reached 80 cents, although a self-service copier is sometimes available for 25 cents per page.)

Furthermore, CIA said in 2014, “neither set of costs reimburses the CIA for the full cost of providing the declassification review service to the requester.”

Public comments on the new ODNI rule are due by March 28.

Update, 3/3/16: FAS comments on the ODNI rule are available here.

Update, 3/4/16: ODNI agreed to amend its MDR fee structure and to replace it with the same fee policy used in its Freedom of Information Act program.

Under a requirement recently enacted by Congress, intelligence agency employees who hold clearances for Sensitive Compartmented Information (SCI) must report any employment with a foreign government entity for up to two years after leaving their US government job.

An internal US Air Force memorandum implementing the new requirement for Air Force intelligence personnel was released under the Freedom of Information Act yesterday.

See Reporting Certain Post-Government Employment by Holders of Sensitive Compartmented Information (SCI) Accesses, Air Force Guidance Memorandum 2015-14-04-O, 5 November 2015.

SCI is classified information that is derived from intelligence sources or methods.

The reporting requirement concerning foreign government employment was adopted by Congress in the FY 2015 intelligence authorization act (section 305) and was enacted into law as 50 U.S.C. 3073a.

It is unclear from the public record whether any specific incident or circumstance prompted the new reporting requirement.

A 2014 memorandum from Director of National Intelligence James R. Clapper, released this week under the Freedom of Information Act, drew a new distinction between intelligence satellite images and the intelligence products that are derived from those images.

The subtle new distinction affects the classification and declassification of the two categories of information, and may help to facilitate the release of a growing volume of imagery-related material by US intelligence agencies.

The new policy affirms that original satellite images retain their privileged status as a subset of protected intelligence sources and methods that can only be declassified by the Director of National Intelligence (pursuant to executive order 12951). However, the declassification of intelligence products based on those images is now delegated to the Director of the National Geospatial-Intelligence Agency.

Adopting this distinction will mean “streamlining our procedures,” the DNI memo said, and “enabling the overall process to be more responsive to future Freedom of Information Act requests.”

See “Classification and Marking of Imagery Derived from Space-based National Intelligence Reconnaissance Systems,” memorandum from DNI James R. Clapper to NGA Director Robert Cardillo, November 12, 2014.

Whether the policy shift has already enabled more disclosure of intelligence imagery through the Freedom of Information Act is doubtful. We haven’t seen evidence of it.

But what is true is that the National Geospatial-Intelligence Agency has undertaken to provide an increasing amount of unclassified imagery and mapping products to the public, including online resources concerning the Arctic, the Nepal earthquake, and the Ebola outbreak, as well as various disaster relief packages. Though it is easy to take the availability of this material for granted, it shouldn’t be; an affirmative decision and something of a cultural shift by the intelligence community (or at least by NGA) was required in order to accomplish it.

The indiscriminate use of the term “intelligence sources and methods” to justify withholding of intelligence-related information from the public has long been a source of frustration and a cause for criticism.

The 1997 Moynihan Commission on secrecy said that “this very general language has come to serve as a broad rationale for declining to declassify a vast range of information about the activities of intelligence agencies” and that it “appears at times to have been applied not in a thoughtful way but almost by rote.”

The Commission recommended that the scope of the term be clarified so as to limit its application.

DNI Clapper’s 2014 memorandum on intelligence image products may be understood as a step in that direction.

Intelligence community budgets appear set to continue on the modest downward slope of the last several years.

The Office of the Director of National Intelligence said yesterday that it was requesting $53.5 billion for the National Intelligence Program (NIP) in FY 2017, a slight reduction from the $53.9 billion that was requested for the NIP in FY 2016. (The amount actually appropriated has not yet been disclosed.)

“Recognizing the challenges of this fiscal environment, the IC continues to review its operational, investment, and infrastructure programs to identify areas for savings. The Budget reflects the results of a deliberative process to ensure that the IC focuses on those programs that have the most impact and highest priority,” ODNI said in a fact sheet on the FY 2017 request.

Meanwhile, the Department of Defense said that it was requesting $16.8 billion for the Military Intelligence Program (MIP) in FY 2017, down from the $17.9 billion requested for the current fiscal year.

Public disclosure of the NIP budget request was required by Congress in the FY 2010 intelligence authorization act. But there is no corresponding requirement for DoD to publicly report the amount of its annual budget request for the MIP.

The practice of voluntarily declassifying and disclosing the MIP budget request was started by James R. Clapper when he was Under Secretary of Defense (Intelligence). Doing so “made sense,” he said recently, particularly since the NIP budget figure had to be released anyway.

Some Members of Congress expressed disappointment that the Obama Administration did not also voluntarily disclose the budget requests of individual intelligence agencies.

“There is no transparency there — they’re complying with the thinnest of laws about the [aggregate] number,” said Rep. Peter Welch (D-VT). “Members of Congress and the American public really are learning nothing.” See “Obama Keeps Public in Dark About ‘Black Budget’ Requests” by Steven Nelson, U.S. News, February 9.

*    *    *

The U.S. Constitution in Article I (Section 9) requires a public “Statement and Account” of the government’s receipt and expenditure of all money.

Past attempts to invoke this requirement to challenge intelligence budget secrecy have foundered on a 1974 US Supreme Court ruling in U.S. v. Richardson which said that a taxpayer lacked “standing” to make the argument in court.

But in a recent law review article, Chapman University professor Lawrence Rosenthal argued that this is not, or should not be, the end of the story, and that the Statement and Account clause may still have potency against secret intelligence expenditures.

“In terms of its text, original meaning, and its place in constitutional ethos and structure, the [Statement and Account] clause is comprehensible only if it is understood as a mechanism that enables the people to effectively hold the government accountable for its use of public funds. Disclosing an aggregate figure without more makes the clause a bit of foolscap…. If the clause requires only a meaningless and ineffectual disclosure, however, it becomes impossible to explain what it is doing in the Constitution.”

“Perhaps the level of disclosure required if we take the clause seriously would put the United States at a disadvantage when compared to other nations that fund their intelligence communities in secret. Or perhaps the resulting accountability would make our intelligence community stronger; we will never know unless we adopt a more transparent regime. Ultimately, however, the constitutional question about disclosure of intelligence spending does not turn on considerations of policy but on the Statement and Account Clause itself. If we take the clause seriously, the current regime cannot stand.”

See “The Statement and Account Clause as a National Security Freedom of Information Act” by Lawrence Rosenthal, Loyola University Chicago Law Journal, Volume 47, No. 1, Fall 2015.

Demographic information concerning the Office of the Director of National Intelligence and the Intelligence Community as a whole is provided in a newly-released ODNI Strategic Human Capital Plan, 2012-2017.

As of 2012, the total Intelligence Community workforce was 76.6% white, and 61.6% male, both higher than the overall federal workforce (which was 65.6% white and 55.9% male).

Intelligence agencies need to do better, wrote Damien Van Puyvelde and Stephen Coulthart of the University of Texas at El Paso in a recent opinion piece. (The ODNI Human Capital Plan was obtained under FOIA by Prof. Van Puyvelde.)

“To properly understand a wide world of actors and adversaries, the U.S. intelligence community needs a diverse workforce. The good news is that the IC understands this; the bad news is it’s still largely white and male. It’s time to pay more attention to the various barriers that keep members of some key demographics from joining up,” they wrote. See “The Intelligence Community Must Remove Barriers to Minority Recruitment,” DefenseOne, January 25, 2016.

The ODNI Plan does affirm the value of diversity. However, it uses the term in two distinct senses: ethnic or racial diversity (“We strive to have a workforce that is representative of the U.S. labor force”), and diversity of backgrounds, skills and perspectives related to the intelligence mission (“ODNI requires a diverse workforce with a deep, collective understanding of global political, economic, social, scientific, technological, and cultural developments that affect U.S. national security”). While there is undoubtedly overlap between the two types of diversity, they are not the same.

“The average age of the ODNI workforce — cadre and detailees — is 44 years, and 37 percent are age 39 or under,” the ODNI document also states. (“Cadre” employees are those hired by ODNI, while “detailees” were hired by other agencies.)

Employee job satisfaction within the Intelligence Community is comparatively high, according to a recent survey publicized by ODNI.

“The IC finished in first place in national security and second overall — up from fourth place in 2014 — among large agencies that employ more than 15,000 full-time permanent employees,” the ODNI news release said.

The survey did not distinguish among the member agencies of the Intelligence Community, some of which are bound to be more satisfying than others.