Employees of the U.S. intelligence community are expected to be bold, innovative and imbued with moral courage.

At least, those are the desired qualities that are defined in a series of Intelligence Community Standards (ICS) first issued in 2008 that have just been released under the Freedom of Information Act.

Even a non-supervisory employee at levels GS-15 and below is expected (under ICS 610-3) to demonstrate creative thinking (he or she “designs new methods and tools where established methods and procedures are inapplicable, unavailable, or ineffective”); to consider alternative points of view (she “seeks out, evaluates, and integrates a variety of perspectives”); and to display intellectual integrity (he “exhibits courage when conveying views, presenting new ideas, and making/executing decisions irrespective of potentially adverse personal consequences. Does not alter judgments in the face of social or political pressure.”).

Higher-level, supervisory personnel are to do all of that, and more (ICS 610-4).

And senior officers (ICS 610-5) “are expected to personally embody, advance and reinforce IC core values: a Commitment to selfless service and excellence in support of the IC’s mission, as well as to preserving, protecting, and defending the Nation’s laws and liberties; the integrity and Courage (moral, intellectual, and physical) to seek and speak the truth, to innovate, and to change things for the better, regardless of personal or professional risk.”

Considering the state of the species, it would be remarkable if more than a small fraction of the IC workforce comes close to meeting the lofty standards for performance and conduct that are described here. But perhaps these statements of expectations themselves serve a wholesome, instructive purpose, making their own fulfillment somewhat more likely.

And the standards are more than rhetorical flights. They are to be used (pursuant to Intelligence Community Directive 610) for “qualification, training, career development, performance evaluation, [and] promotion.”

The guiding principles for implementing and operating the Intelligence Community (IC) Information Technology Enterprise (ITE) were set forth in a 2013 memorandum from the Director of National Intelligence that was recently released under the Freedom of Information Act.

The purpose of IC ITE (pronounced “eye sight”) is to establish a common information architecture for the entire U.S. intelligence community, thereby fostering integration and making information sharing among agencies the default option.

“Information acquired, collected, or produced by IC elements shall be available for access for all IC missions and functions, subject to applicable legal and policy requirements,” the 2013 DNI memo said.

Once available through IC ITE, however, access is still to be limited by need-to-know. “Determinations about access to and use of such information within IC ITE shall continue to be based upon content and mission need.”

Nevertheless, agencies are expected and required to make “their” information available to the larger IC. “Unless a discovery exemption has been obtained, originating IC elements shall authorize and provide for automated discovery and retrieval of intelligence and intelligence-related information in IC ITE.”

“IC ITE moves the IC from an agency-centric IT architecture to a common platform where the Community easily and securely shares technology, information, and resources,” according to an ODNI fact sheet. “These new capabilities, with seamless and secure access to Community-wide information, will positively and deeply change how users communicate, collaborate, and perform their mission.”

IC ITE technically “went live” in 2013, but it is still at an early stage of development.

“The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the CIA, DIA, NRO, NGA, and NSA to provide specific plans for adoption of IC ITE-compliant capabilities,” the Senate Intelligence Committee noted in a report earlier this year.

The Director of National Intelligence last month issued a new directive on Controlled Access Programs (CAPs).

CAPs are the Intelligence Community equivalent of what are otherwise called Special Access Programs (SAPs). These are classified programs that involve access restrictions above and beyond ordinary classification controls. CAPs include compartmented intelligence programs, but are not limited to them.

The new directive, Intelligence Community Directive 906, establishes the policy framework for management and oversight of Controlled Access Programs. The directive itself is unclassified.

The Office of the Director of National Intelligence yesterday released a transparency implementation plan that establishes guidelines for increasing public disclosure of information by and about U.S. intelligence agencies.

Based on a set of principles on transparency that were published earlier this year, the plan prioritizes the objectives of transparency and and describes potential initiatives that could be undertaken.

Thus, the plan aims to “provide more information about the IC’s governance framework”; to “provide more information about the IC’s mission and activities”; to “encourage public engagement” by intelligence agencies in social media and other venues; and to “institutionalize transparency policies and procedures.”

The plan does not include any specific commitments nor does it set any deadlines for action. And it is naturally rooted in self-interest. Its purpose is explicitly “to earn and retain public trust” of U.S. intelligence agencies.

Nonetheless, it has the potential to provide new grounds to challenge unnecessary secrecy and to advance a corresponding “cultural reform” in the intelligence community.

Perhaps the most important thing about it is the fact that it has been embraced by the Director of National Intelligence, James R. Clapper, who announced its release yesterday at a conference at George Washington University. The DNI’s endorsement gives it an indispensable bureaucratic potency and creates an expectation that measurable results will follow.

But the text of the plan itself also has several noteworthy features. For example:

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The ODNI plan instructs intelligence agencies to release substantive (though unclassified) intelligence information that could be of use to the public:

“The IC should review and provide appropriate information that is of current public utility, such as certain types of foundational information (including imagery). To facilitate the foregoing, the IC should develop a repeatable process of moving unclassified material not subject to other statutory protections to unclassified systems where it may be released.”

This important guidance points in a direction which is exactly the opposite of where CIA has taken its Open Source Center (now the Open Source Enterprise). After decades of providing open source material to the public through the Foreign Broadcast Information Service and then the OSC, the CIA terminated those public offerings in 2013. That move might now be reconsidered in light of the new transparency implementation plan (though CIA says it has no plans to do so).

*    *    *

The new transparency policy (in principle 3d) calls on intelligence agencies to “consider the public interest to the maximum extent feasible when making classification determinations.”

This is a remarkable statement that goes beyond any requirement in existing classification policy. In particular, President Obama’s 2009 executive order 13526 on classification does not include the public interest as a factor in original classification decisions at all.

The new plan dutifully states that it does not “modify or supersede” executive order 13526. But it does in fact present a different classification construct, or at least a different emphasis. As the plan says, it “reinforces Executive Order 13526, which governs classification standards, while also guiding the IC to consider the public interest to the maximum extent feasible in conducting declassification reviews in order to make as much information available as possible while protecting intelligence information.”

  *    *    *

The new transparency plan could end up altering the future contours of classification policy throughout the intelligence community because it will inform the upcoming Fundamental Classification Guidance Review. That Review is a government-wide evaluation and recalibration of national security classification policy that is due to be completed by 2017.

“The ODNI should work with the Information Security Oversight Office to provide guidance to IC elements on updating classification guides. This guidance should be aligned with the Principles as appropriate,” the plan says, in what may prove to be a misleadingly bland passage.

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The IC plan does not mention the name of Edward Snowden. It speaks of the need to provide channels for “submitting concerns or observations on potential misconduct by IC offices or employees.” But it does not clearly recognize or grapple with what might be called the Snowden conundrum.

That is the peculiar fact that the telephone metadata collection activities that Snowden and, later, most members of Congress and the interested public found objectionable had been secretly approved by all three branches of government. Within the government, collection of “all” telephone metadata was not considered misconduct, potential or actual. As a consequence, “whistleblowing” about these fully authorized activities using internal procedures would have been inapt and ineffective.

The problem, rather, was that a “lawful” secret government program had exceeded the implicit boundaries of public consent. Under the circumstances, disclosure was the only way to resolve the conundrum. This is a failure of congressional oversight above all, but it ought to be faced squarely by each branch of government involved.

*    *    *

“We believe transparency is worth the cost,” said DNI James R. Clapper in his October 27 speech announcing the new implementation plan.

“Because if the American people don’t understand what we are doing, why it’s important and how we’re protecting their privacy and civil liberties, we will lose their confidence and that will affect our ability to perform our mission — which ultimately serves them.”

See, relatedly, “Clapper’s transparency plan for intelligence community grinds forward” by Josh Gerstein, Politico, October 27.

A commitment to “Increase Transparency of the Intelligence Community” was included in the Open Government Partnership: Third Open Government National Action Plan that was released by the White House yesterday.

The DNI Open Source Center has been redesignated the Open Source Enterprise and incorporated in CIA’s new Directorate of Digital Innovation.

The Open Source Center, established in 2005, was tasked to collect and analyze open source information of intelligence value across all media – – print, broadcast and online. The OSC was the successor to the Foreign Broadcast Information Service (FBIS), which gathered and translated world news coverage and other open source information for half a century.

“As part of the Agency modernization effort announced by Director Brennan earlier this year, the DNI Open Source Center (OSC) changed its name to the Open Source Enterprise (OSE) on October 1, 2015,” said CIA spokesperson Ryan Trapani. “OSE remains dedicated to collecting, analyzing, and disseminating publicly available information of intelligence value. The organization’s new name reflects the broad relevance and scope of the open source mission.”

“OSE retains its role as the Intelligence Community’s (IC) center of excellence for open source collection, analysis, and tradecraft,” he added. “Director Brennan also retains his role as the interagency Open Source Functional manager.”

As FBIS also did for several decades, the Open Source Center used to produce a publicly available line of products, including translations and open source analyses. But at the end of 2013, to the dismay of many longtime subscribers, CIA abruptly terminated that channel of public information, citing costs and the easy availability of alternate public sources.

“That decision was primarily due to the cost-prohibitive nature of updating the feed and in light of the broad accessibility of open source information on the Internet,” said Mr. Trapani. “Nevertheless, OSE remains committed to fulfilling its core mission of collecting, analyzing, and disseminating open source information. At this time, however, OSE has no plans to expand the scope of its services to include the regular release of unclassified, non-copyrighted materials to the public.”

That’s unfortunate.

While there is indeed a surfeit of “news” and “information” of all kinds, the open source analytical products generated in the intelligence community have the potential to add value to public discourse. A somewhat random cross-section of OSC products from several years ago that illustrates the range and quality of these analyses, obtained without authorization, is available here.

“If I were the DNI, I would… direct the OSC to release as much unclassified material as it could,” I suggested in a speech last year to a conference of intelligence community lawyers. But I’m not, and it didn’t.

However, the new ODNI transparency implementation plan may present an occasion to reconsider the CIA non-disclosure policy regarding unclassified open source products.

Though the Open Source Center is no more, its name and logo live on in various locations, like this official website.

“OSE’s portal along with other materials branded with the previous OSC seal and moniker, will be updated with new OSE labeling in the coming months,” Mr. Trapani said.

In 2006, the DNI issued Intelligence Community Directive 301 on the National Open Source Enterprise, but it was rescinded in 2012, according to an ODNI spokesman. “It was determined that ICD 113, Functional Managers, provided sufficient authorities and responsibilities for all functional managers, including D/CIA as the open source intelligence [manager].”

Classified U.S. intelligence information may be shared with foreign recipients when it is advantageous to the U.S. to do so and when it is not otherwise prohibited by law, according to a directive that was publicly released last week by the Office of the Director of National Intelligence.

“It is the policy of the U.S. Government to share intelligence with foreign governments whenever it is consistent with U.S. law and clearly in the national interest to do so, and when it is intended for a specific purpose and generally limited in duration,” states Intelligence Community Directive 403, Foreign Disclosure and Release of Classified National Intelligence, which was originally issued on March 13, 2013.

There are some nuances, however.

For example, intelligence will ordinarily be shared with] foreign governments or their components, coalitions of governments, or international organizations. But individual foreign nationals and independent contractors “do not constitute foreign entities for purposes of foreign disclosure or release except as designated by the DNI.”

(“Disclosure” here means communicating the intelligence without transfering a copy of it for retention. “Release” means providing a copy that the recipient can keep.)

The release last week of Intelligence Community Directive 403, which had been sought through a Freedom of Information Act request, itself represents a novel act of transparency. The prior guidance governing Intelligence Disclosure Policy under DCI Directive 6/7 had not been publicly disclosed, as far as is known. The topic of intelligence liaison relationships, which is distinct but related to foreign disclosure, is among the most sensitive and least publicly documented areas of U.S. intelligence policy.

The current foreign disclosure policy was elaborated in several guidance documents that were also released by ODNI last week:

Criteria for Foreign Disclosure and Release of Classified National Intelligence, Intelligence Community Policy Guidance (ICPG) 403.1, March 13, 2013

Procedures for Foreign Disclosure and Release Requiring Interagency Coordination, Notification, and DNI Approval, Intelligence Community Policy Guidance (ICPG) 403.2, August 8, 2014

Criteria and Conditions for Emergency Foreign Disclosure and Release, Intelligence Community Policy Guidance (ICPG) 403.3, April 29, 2014

Procedures for Interagency Coordination Prior to Foreign Disclosure and Release to Senior Foreign Officials, Intelligence Community Policy Guidance (ICPG) 403.4, October 25, 2014

ICPG 403.1 specifies several categories of intelligence information that may not be shared with a foreign government.

These include intelligence which is protected against disclosure by law or treaty; intelligence on a U.S. person that is not publicly available; intelligence derived from Grand Jury information; and intelligence obtained through a liaison relationship with another government, among other categories.

Intelligence community officials are instructed to anticipate the purposes for which the shared intelligence might be used.

“Disclosures and releases that would support or facilitate lethal action require special consideration and authorization, including referral to the NSC and compliance with NSC direction as appropriate,” according to ICPG 403.1.

In 2010, then-Director of National Intelligence Dennis C. Blair convened a panel to review the November 2009 Fort Hood shooting committed by Army Maj. Nidal Hasan and the Christmas Day bombing attempt by Umar Farouk Abdulmutallab aboard Northwest Flight 253.

A redacted version of the resulting panel report was finally declassified and released this week. See Report to the Director of National Intelligence on the Fort Hood and Northwest Flight 253 Incidents, Intelligence Community Review Panel, 15 April 2010.  The panel was led by former Acting DCI John E. McLaughlin.

In a nutshell, the report found, “There were several missed opportunities that could have increased the odds of detecting Abdulmutallab or Hasan. The causes of the missteps ranged from human error to inadequate information technology, inefficient processes, unclear roles and responsibilities, and an occasional lack of individual inquisitiveness.”

Beyond a detailed recounting of what was known by U.S. intelligence about the perpetrators, much of which has been withheld, the report fills a gap in the literature of intelligence reform with a look at systemic issues such as the state of information technology in the intelligence community (as of 2011), the process of watch-listing, and disagreements over the handling of U.S. person information.

“Inadequate information technology runs through both the Fort Hood and the NW Flight 253 narratives, particularly the inability of IT systems to help analysts locate relevant reporting in a sea of fragmentary data or to correct for seemingly minor human errors.”

“NCTC [National Counterterrorism Center] analysts, for example, have access to more than 28 separate databases and systems, each of which, for the most part, has a separate log-on. This means analysts have to search each database separately before trying to identify connections among their results.”

The existing search capacity “is intolerant of even simple mistakes in the queries and does not enable questions like: list everyone that is potentially affiliated with AQAP and has a passport or visa that would permit entry to the United States or UK.”

But the problem is not purely one of technology, the report said. “The Community cannot realize the potential of information technology to assist the counterterrorism mission without clarifying… procedures for sharing information on US persons.”

The report reflects a view that restrictions on collecting and disseminating US person information had become onerous and counterproductive.

“Many of the people we interviewed assessed that policy on handling US Persons data… was limiting the Intelligence Community’s ability to aggregate and exploit available data, especially information pertaining to critical domestic-foreign nexus issues.”

“We noticed a strong belief among collectors and analysts that restrictions on collecting, disseminating, accessing, and analyzing data on US Persons impede mission performance…. We also saw a surprising level of disagreement — even among experienced practitioners — on whether current US Person authorities allow intelligence officers to accomplish their missions, or whether new legal authorities are needed.”

(“Sharing US Person information with foreign partners, and tasking them to collect on US Persons appeared at various points,” the report says at the start of an otherwise redacted paragraph.)

“We see a need to simplify, harmonize, update, and modify the Community’s procedures relating to US persons,” the McLaughlin panel wrote.

What exactly this might mean in practice was not spelled out, but it didn’t seem to entail tightening, narrowing or curtailing the use of US person information, or increasing oversight of it.

“The report’s finding on the Intelligence Community’s ‘caution’ and ‘risk aversion’ in the collection of US persons information is particularly notable,” said Christian Beckner, Deputy Director, GW Center for Cyber & Homeland Security, “leading the review group to worry that ‘the next terrorist surprise could be the result of confusion or excessive caution about how to manage this issue.’  This finding is in striking contrast to much of the public dialogue following the Snowden leaks about intelligence activities related to US persons.”

The panel report also includes various incidental observations of interest.

“The panel is concerned that the overlap between CTC [the CIA Counterterrorism Center} and NCTC [the National Counterterrorism Center] extends beyond healthy competition and that the turf battles, duplications, and clashes are a drain on the resources and creative energy of both organizations.”

Furthermore, “It appears that much of the tension between the two organizations centers on issues related to the President’s Daily Brief (PDB) — everything from who takes the lead to what is said in the articles.”

The report cites inaccuracies in news media coverage of the Fort Hood shootings and Christmas Day bombing “that have skewed the discussions.” For example, contrary to some accounts, “There is no evidence indicating that [Anwar al] Aulaqi directed Hasan.”

The report also presents a previously unreleased 2010 DNI directive on “lanes in the road” (included as Appendix D to the report) that “establishes the responsibilities and accountability of leaders of major organizations with counterterrorism analytic missions.” In other words, it assigned specific counterterrorism roles to each of the relevant intelligence agencies.

“Each organization within the IC with a significant counterterrorism analytic effort is expected to work seamlessly with its counterparts, drawing on the specific strengths and advantages of partners, but is also expected to place particular emphasis on those missions they are uniquely positioned to conduct,” wrote DNI Dennis C. Blair in the April 7, 2010 memorandum.

A 2013 Intelligence Community Directive that was released this week “establishes the baseline for CI [counterintelligence] programs across the Intelligence Community (IC).”

Counterintelligence is defined as “Information gathered and activities conducted to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or activities.”

Counterintelligence Programs, Intelligence Community Directive 750, was signed by DNI James R. Clapper on July 5, 2013, and was released by the Office of the Director of National Intelligence in response to a Freedom of Information Act request.

CI programs within the Intelligence Community are directed to address CI analysis, awareness and education, risk assessments, and critical asset protection.

A critical asset is “Any asset (person, group, relationship, instrument, installation, process, or supply at the disposition of an organization for use in an operational or support role) whose loss or compromise would have a negative impact on the capability of a department or agency to carry out its mission; or may have a negative impact on the ability of another U.S. Government department or agency to conduct its mission; or could result in substantial economic loss; or which may have a negative impact on the national security of the U.S.”

By any reasonable definition, the Office of Personnel Management database of security clearance background investigations for federal employees and contractors that was recently compromised by a foreign adversary would appear to qualify as a “critical asset.” But since OPM is not a member or an element of the Intelligence Community, it appears to fall outside the scope of this directive.

The IC Directive includes only the briefest of references to the sensitive topic of offensive counterintelligence, which involves penetrating, diverting and redirecting foreign intelligence efforts targeted at the United States:

“Effective mitigation of FIE [Foreign Intelligence Entity] activities involves anticipating, detecting, understanding, and assessing threats to national security and also taking appropriate CI actions to defeat, counter, neutralize, or exploit the threat.”

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ODNI this week also released a 2012 instruction on the ORCON dissemination marking, referring to intelligence information whose distribution is “originator controlled.”

“The use of ORCON enables the originator to maintain knowledge, supervision, and control of the distribution of ORCON information beyond its original dissemination. Further dissemination of ORCON information requires advance permission from the originator.”

However, its use should be limited. “The ORCON marking shall be applied judiciously in accordance with this ICPG to ensure that classified national intelligence is disseminated appropriately without undue delay or restriction.”

“The decision to apply ORCON shall be made on a case-by-case basis using a risk-managed approach. It shall not be applied in a general or arbitrary manner.”

See Application of Dissemination Controls: Originator Control, ICPG 710.1, July 25, 2012.

Despite an explicit statutory requirement to keep Congress “fully and currently informed” about the proliferation of weapons of mass destruction, the President may withhold proliferation-related information from Congress if he determines that doing so could harm the national security, according to a sweeping opinion from the Justice Department Office of Legal Counsel (OLC) that was prepared in 2003.

The opinion, written by then-OLC deputy John C. Yoo, was released this week under the Freedom of Information Act. See Presidential Authority to Protect National Security Information, January 27, 2003.

The OLC opinion takes an uncompromising view of presidential authority. It reviews multiple statutes that mandate disclosure of various types of information to Congress, including requirements to report on WMD proliferation and to keep the intelligence committees “fully and currently informed of all intelligence activities.” It then concludes that those statutes cannot override, modify or limit the President’s constitutional prerogatives.

“Despite Congress’s extensive powers under the Constitution, its authorities to legislative [sic] and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security,” the OLC opinion said.

Even to a layman, the Yoo opinion seems muddled and poorly argued, in several respects.

*    Yoo claims that the statute requiring reporting of WMD proliferation was obviated by a signing statement issued by President Clinton in 1999. “In signing the legislation, President Clinton stated that section 1131 and similar provisions raised serious constitutional questions.” But upon examining the text of that 1999 signing statement, one finds that Clinton did not mention section 1131 at all, and the President’s comments there have no bearing on WMD proliferation or congressional reporting requirements.

*    Yoo uses the word “disclosure” throughout the opinion to refer to classified reporting to Congress, which excludes public release of the information. At no point does he try to explain how such reporting through classified channels “could harm the national security” if the information never became public.

*    Yoo does not acknowledge or mention the Supreme Court’s 1952 Youngstown decision which addressed Presidential authority in the face of contrary statutory imperatives: “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” To sustain his position, Yoo cannot admit the existence of any relevant constitutional powers of Congress, since those would diminish the President’s freedom of action.

*    Yoo does allow that “the President can disclose such information as a matter of inter-branch comity to members of Congress of his choosing when he judges it consistent with the national security.” But this is incoherent, even by Yoo’s own lights, since whenever disclosure is consistent with national security, the President’s authority to withhold it evaporates. Then disclosure to Congress would not be a matter of comity at all, but a binding requirement.

The six page OLC opinion does have some positive features.

*    It was prompted by an inquiry to OLC from then-White House Counsel Alberto R. Gonzales as to “whether the President has the constitutional authority to withhold sensitive national security information from Congress involving the proliferation of weapons of mass destruction by other nations.” So the very fact of the inquiry is an indication that the authority to withhold was not self-evident even to the George W. Bush White House.

*    The opinion discloses the title of at least one previously unknown OLC opinion on Congressional Notification for Certain Special Operations (November 1, 2002).

It is unclear whether the 2003 Yoo OLC opinion has had any enduring impact or influence on executive branch policy.

The first known public reference to the opinion appeared in a declassified version of the 2009 Joint Inspector General report on the President’s Surveillance Program (Stellar Wind) that was obtained by the New York Times this year in response to a FOIA lawsuit.

Footnote 192 on page 167 of the DOJ volume of the Joint Report (p. 504 in the NYT PDF) reads in part: “Citing… a 2003 OLC opinion, Gonzales’s letter stated that the President has the constitutional authority to define and control access to the nation’s secrets, ‘including authority to determine the extent to which disclosure may be made outside the Executive Branch’.”

The reference to the 2003 OLC opinion was first noticed by Marcy Wheeler last May.

In its response to a Freedom of Information Act request, the Office of Legal Counsel said that the 2003 Yoo opinion “is protected by the deliberative process and attorney-client privileges and [is] exempt from mandatory disclosure pursuant to FOIA Exemption Five.”

Nevertheless, wrote OLC Special Counsel Paul P. Colborn, “we are releasing it to you as a matter of discretion.”

Intelligence agencies that discover a threat to a person’s life or safety are obliged to alert the intended target in most cases as long as they can do so without compromising intelligence sources and methods, a new intelligence community directive instructs.

A U.S. intelligence agency “that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate,” the new directive states. “This includes threats where the target is an institution, place of business, structure, or location.”

Remarkably, “the term intended victim includes both U.S. persons… and non-U.S. persons.”

The “duty to warn” obligation, which in principle dates back at least several decades, was formally established last month by Director of National Intelligence James R. Clapper in Intelligence Community Directive 191, July 21, 2015.

It is not binding in all circumstances, however. Notification of the target would be waived if it “would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations.”

The notification requirement also does not apply in cases where the threat emanates from the U.S. government itself, whether in combat operations or in “covert” targeted killing programs. Thus, the directive states that the requirement would be appropriately waived when “There is a reasonable basis for believing that the intended victim is a terrorist, a direct supporter of terrorists, an assassin, a drug trafficker, or involved in violent crimes.”

Likewise, no notification would be required in cases where “The intended victim is at risk only as a result of the intended victim’s participation in an insurgency, insurrection, or other armed conflict.” Nor is notice needed when the intended victim “is already aware of the specific threat.”

The “duty to warn” requirement seems to be an obligation that has been voluntarily assumed by the U.S. intelligence community, perhaps for moral or prudential reasons. In other contexts where there are similar requirements for professionals to breach confidentiality and to warn of credible threats (most notably mental health care), they are rooted in case law. But no comparable legal precedent or statutory requirement appears to exist in the intelligence context that would compel agencies to act in this way. The legal authorities cited in the new DNI directive — the National Security Act and executive order 12333 — do not specifically mention the duty to warn.

If necessary to protect sources and methods, “communication of threat information to the intended victim may be delivered anonymously,” the new DNI directive says.

Former U.S. intelligence officer Rick Francona recalled being part of a CIA covert action team in northern Iraq in 1995 that was tasked one day to warn an American living there that he had been targeted for death by Iranian Revolutionary Guards because of his Christian missionary activity.

Francona and his heavily armed CIA team knocked on the incredulous American’s door and introduced themselves: “We’re from the State Department.”

Effective oversight of intelligence community contractors is a particularly difficult exercise since the reliability of official data on contractor activities is uncertain and most of it is classified and inaccessible to outsiders, a new report from the Congressional Research Service explains.

“Contractors have been and are an integral part of the intelligence community’s (IC’s) total workforce (which also includes federal employees and military personnel). Yet questions have been raised regarding how they are used, and the size and cost of the contractor component.”

The new CRS report “describes several initiatives designed, or used, to track contractors or contractor employees. [It also] addresses the questions of whether IC contractor personnel are performing inherently governmental functions and whether the IC’s acquisition workforce is equipped to monitor contractors performing critical functions….”

The CRS report itself was prepared without access to classified data on the role of contractors, so it sheds no new factual light on the subject. Instead, it summarizes the recent literature on internal IC contractor management and congressional oversight of IC contractors.  See The Intelligence Community and Its Use of Contractors: Congressional Oversight Issues, August 18, 2015.

Dozens of other new and updated CRS reports were obtained and posted online last week, including these:

The Greek Debt Crisis: Overview and Implications for the United States, August 19, 2015

China’s Currency Devaluation, CRS Insights, August 17, 2015

Powering Africa: Challenges of and U.S. Aid for Electrification in Africa, August 17, 2015

Unaccompanied Alien Children: An Overview, updated August 18, 2015

Mandatory Minimum Sentencing: Federal Aggravated Identity Theft, updated August 20, 2015

Medal of Honor: History and Issues, updated August 18, 2015

Sentence for Killing a Bald Eagle Found Too Severe and Unauthorized, CRS Legal Sidebar, August 18, 2015

Biopower: Background and Federal Support, updated August 14, 2015

California Drought: Hydrological and Regulatory Water Supply Issues, updated August 14, 2015

Automatic Continuing Resolutions: Background and Overview of Recent Proposals, August 20, 2015

“Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits, updated August 19, 2015

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated August 17, 2015

Women in Combat: Issues for Congress, updated August 18, 2015

Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments, updated August 14, 2015

Not new, but of renewed current interest is Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents, January 10, 2012.

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The long-term vitality of the Congressional Research Service is threatened by Congress’s repeated refusals to appropriate the modest budget increases ($5 million in FY2016) that the agency has requested in recent years. Reductions in the quality of CRS publications and in the depth of staff expertise are foreseeable.

Other congressional support agencies and professional staff face similar curbs on funding, to the detriment of the legislative process.

“Why would Congress cannibalize its own legislative and creative capacity?” ask political science professors Anthony Madonna and Ian Ostrander. See “If Congress keeps cutting its staff, who is writing your laws? You won’t like the answer,” Washington Post, August 20.

The House of Representatives yesterday approved its version of the FY 2016 intelligence authorization act (HR 2596).

The bill includes “several” new reporting requirements intended “to enhance Congress’ role in and understanding of the classification process,” said Rep. Doug Collins (R-GA). One of these requirements is for a report to Congress noting each occasion in the past 5 years in which non-compartmented intelligence reporting has been disseminated through a (more restrictive) compartmented channel.

The bill passed by the House preserves a proposed new restriction on the Privacy and Civil Liberties Oversight Board barring its access to covert action information. The Washington Post reported last week that the restriction was prompted by an op-ed written by the Board chairman suggesting that the Board might be able to assist in oversight of covert targeted killing operations.

Also yesterday, the Senate voted 78-21 to affirm a ban on torture and to limit the use of interrogation techniques to those that are included in Army Field Manual 2-22.3 (Appendix M). The measure was sponsored by Senators McCain and Feinstein.

“Current law already bans torture, as well as cruel, inhuman, or degrading treatment or punishment,” Sen. McCain noted.

“However,” he said, “this amendment is still necessary because [after 9/11, so-called ‘enhanced’] interrogation techniques were able to be used, which were based on a deeply flawed legal theory, and those techniques, it was said, did not constitute ‘torture’ or ‘cruel, inhuman, or degrading treatment.’ These legal opinions could be written again.” The amendment is intended to preclude that possibility.

“I ask my colleagues to support this amendment,” Sen. Feinstein said, “and by doing so, we can recommit ourselves to the fundamental precept that the United States does not torture–without exception and without equivocation–and ensure that the mistakes of our past are never again repeated in the future.”

Sen. John Cornyn (R-TX), who opposed the amendment, said “the effect of this policy is to hand our entire interrogation playbook to groups such as the self-declared Islamic State of Iraq and the Levant, ‘ISIL,” Al Qaeda, and the Taliban, which is a profound mistake.”