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In a startlingly indiscriminate classification action that officials termed “unprecedented,” U.S. General John F. Campbell, the commander of U.S. forces in Afghanistan, ordered the classification of a broad range of previously public information concerning operations in that country.

How has the $25 million authorized by Congress for women in the Afghan army been used? What are the definitions of the terms “unavailable” and “present for duty”? What is the total amount of funding that the U.S. has expended on salaries for the Afghan National Police?

The answers to those questions, and more than a hundred others that had formerly been subject to public disclosure, are now considered classified information. The newly classified data was withheld from disclosure in the public version of the latest quarterly report from the Special Inspector General for Afghanistan Reconstruction (SIGAR) that was released today.

“The classification of this volume of data for SIGAR’s quarterly report is unprecedented,” the new report stated. “The decision leaves SIGAR for the first time in six years unable to publicly report on most of the U.S.-taxpayer-funded efforts to build, train, equip, and sustain the [Afghan National Security Forces].”

General Campbell defended his action (which was first reported today in the New York Times) in a letter to the SIGAR appended to the report.

“While I cannot comment upon the precise reason why certain information was considered unclassified in the past, I can advise that given the risks that continue to exist to our forces and those of Afghanistan, I have directed that sensitive operational information or related materials, that could be used by those who threaten the force, or Afghan forces, be classified at an appropriate level,” General Campbell wrote. “With lives literally on the line, I am sure that you can join me in recognizing that we must be careful to avoid providing sensitive information to those that threaten our forces and Afghan forces, particularly information that can be used by such opposing forces to sharpen their attacks.”

The General did not explain how budget and contracting information, among other routine data, could be used to sharpen attacks against allied forces.

The new classification action highlights the inadequacy of existing mechanisms for correcting excessive, abusive or mistaken classification decisions.

In principle, the director of the Information Security Oversight Office has the authority under executive order to overrule or modify General Campbell’s sweeping classification decision. But that authority, which has never yet been exercised in the 35 years of ISOO’s existence, may have finally atrophied beyond recovery.

Congressional complaints about overclassification, as in the case of the summary of the Senate report on CIA interrogation, tend to underscore the view that classification is an executive branch prerogative, and paradoxically to strengthen it.

A 2013 Department of Defense Inspector General report noted that out of a small sample of 220 DoD documents, at least ten percent were misclassified or overclassified, including documents based on public information. At that time, the DoD Inspector General generously concluded that “we do not believe that those instances concealed violations of law, inefficiency, or administrative error; prevented embarrassment to a person, organization, or agency; restrained competition; or prevented or delayed the release of information that did not require protection in the interest of national security.”

That deferential judgment will need to be amended in light of the expansive classification of oversight information concerning Afghanistan.

As a result of General Campbell’s decision, the Special Inspector General wrote, “much of the information SIGAR has used for the past six years to report on the $65 billion U.S. investment in the ANSF is no longer releasable to the public.”

Update: On February 2, the move to classify the relevant Afghanistan oversight data was partially rescinded, the New York Times reported.

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There is a new sheriff in town. Is that the message that Senator Richard Burr, the new chair of the Senate Select Committee on Intelligence, is trying to send?

Senator Burr reportedly wrote to President Obama last week to ask that all copies of the classified 6,700 page Committee report on CIA interrogation practices be returned immediately to the Committee. While the redacted summary of the report has been publicly released and is even something of a bestseller for the Government Printing Office as well as a commercial publisher, the full report has not been made public. And Senator Burr seems determined to keep it that way.

Senator Burr’s letter was reported in C.I.A. Report Found Value of Brutal Interrogation Was Inflated by Mark Mazzetti, New York Times, January 20. (More: Washington Post, Huffington Post.)

Senator Dianne Feinstein, who chaired the Committee while the report was produced, scorned the request for its return.

“I strongly disagree that the administration should relinquish copies of the full committee study, which contains far more detailed records than the public executive summary. Doing so would limit the ability to learn lessons from this sad chapter in America’s history and omit from the record two years of work, including changes made to the committee’s 2012 report following extensive discussion with the CIA,” she said in a statement.

Among other things, the proposed return of the full report may be intended to prevent its potential future accessibility through the Freedom of Information Act, which does not apply to records in congressional custody.

But if so, this seems short-sighted and probably futile, given that all of the evidentiary material on which the report is based originated in the executive branch anyway. Moreover, the Committee report has spawned an entire literature of agency evaluations and responses (such as the so-called Panetta Review). That literature belongs to the agencies, and sooner or later it should be subject to public disclosure regardless of the fate of the SSCI report.

Update 1/22/15: Jason Leopold of VICE News has a thorough account of this episode to date here, including a copy of the letter from Senator Burr and a letter from Senator Feinstein in response.

“We do overclassify,” Director of National Intelligence James R. Clapper, admitted at his 2010 confirmation hearing. It’s a theme he has reiterated on a number of occasions on which he has spoken of the need for increased transparency in intelligence.

So it comes as a surprise and a disappointment that a new study of the subject from the Intelligence Community Inspector General failed to identify a single case of unnecessary or inappropriate classification.

“IC IG found no instances where classification was used to conceal violation of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency; restrain competition; or prevent or delay the release of information not requiring protection in the interest of national security,” the December 2014 report said.

When it comes to overclassification, ODNI is far from the worst offender. But the IC IG report purports to address classification trends across the intelligence community. And its conclusions are hard to reconcile with the public record, to say the least.

Thus, at the same time that the Inspector General was finding no use of classification to prevent or delay the release of information not requiring protection, the release of the Senate Intelligence Committee report on CIA interrogation practices was being hamstrung and delayed for months or years by dubious, inconsistent classification claims.

“Members of the Committee have found the declassification process to be slow and disjointed, even for information that Congress has identified as being of high public interest,” Sen. Dianne Feinstein wrote to the President last month.

Today the New York Times reported on a 2012 report on intelligence surveillance practices that had been withheld in its entirety until it was partially released in response to a lawsuit brought by the Times. Numerous other examples of the misapplication of classification authority could be cited. Yet all of them were somehow missed or ignored by the IC Inspector General.

Meanwhile, some senior officials in the intelligence community are rethinking current classification practices and policies because they have concluded, contrary to the thrust of the new IG report, that the status quo is unsatisfactory.

“Going forward, I believe that the Intelligence Community is going to need to be much more forward-leaning in what we tell the American people about what we do,” said ODNI General Counsel Robert S. Litt in a public speech last year. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected.”

Each year millions of pages of government records are declassified that few if any members of the public will ever look at. This is an awkward fact which is not often discussed because it might call into question the whole declassification enterprise.

“Statistical Records Relating to Ship Stability, 1918-67,” anyone? A new collection of declassified records on that subject was among those processed for release recently by the National Declassification Center. Like too many other such records, it seems unlikely to generate or to justify much public attention.

In response to this problem, the Public Interest Declassification Board (PIDB), an official advisory committee, said that agencies should do more to selectively prioritize topics of high public interest for declassification review rather than trying to declassify most records as they become 25 years old.

“After studying declassification practices in use at agencies and at the National Declassification Center (NDC), we concluded that a coordinated government-wide policy focused on declassifying historically significant records with greatest interest to the public made most sense,” wrote former Congressman David E. Skaggs, the acting chair of the PIDB, in a letter to President Obama last week transmitting a new PIDB report on the subject.

“Currently, all classified records of a certain age receive the same attention, regardless of their historical value or potential research interest,” the PIDB report said. “Such indiscriminate use of dwindling government resources makes no sense.”

PIDB therefore proposed that agencies move away from broad-based “automatic declassification” (which is rarely if ever automatic) to “topic-based prioritization [that] would ensure declassification review of records of the greatest potential for use by the public, historians, public policy professionals and the national security community itself,” the report said.

The PIDB proposal, which addresses a genuine problem, itself raises several concerns.

Automatic declassification of all (non-exempt) historically valuable 25 year old classified records was originally mandated by the Clinton Administration in 1995 in order to compel agencies to take declassification seriously. It served as a forcing function, requiring documents to be released if they were not reviewed or exempted, and it yielded more than a billion pages of declassified records.

A move away from automatic declassification could eliminate that forcing function without replacing it with another equally compelling rationale. The PIDB report says, a bit vaguely, not to worry: “Lessening the burden of automatic declassification [in a shift to topical priorities]… should not reduce the overall declassification activity across government.” It is not immediately clear why not.

Another concern is how to establish which declassification priorities are actually dictated by “the public interest.” There are certainly passionate communities of interest surrounding topics such as the JFK assassination, prisoners of war, or intelligence history, but these are not necessarily a proper basis for a “public interest” declassification agenda. Even a preliminary list of declassification topics that was compiled by the PIDB itself and published in the new report is admittedly “too extensive and diffuse… to inform decisions leading to implementation of a priority-based declassification program.”

A deeper problem than the choice of topics or the impact of resource limitations is the question of which criteria are to be used by agencies for making declassification decisions. If the declassification criteria are obsolete or overly conservative, then applying them even to well-chosen topics won’t do much good.

The PIDB report does not directly engage the question of how to optimize and update declassification criteria. It does propose, however, to eliminate the crude pass/fail process that is often used to withhold entire documents when even a small portion of them is found to be exempt. The report also notes in passing that the 1992 JFK Assassination Records Review Act mandated disclosure requirements for assassination-related records that were “much more stringent” than those of past and current executive orders. There is perhaps an implicit suggestion that a similarly forthcoming approach could be adopted in other topical reviews.

The PIDB report also discusses new applications of technology to declassification, the need for increased risk tolerance, and other topics.

Meanwhile, the demand for declassification is persistent and growing.

Just last week, Sen. Carl Levin renewed his request to the Central Intelligence Agency “to fully declassify a March 13, 2003 cable from CIA field officers to headquarters. This cable provides information about the Bush administration’s campaign to build public support for the Iraq invasion” on grounds that were erroneous and misleading, Sen. Levin said in a December 11 floor statement.

A day before, Sen. Mark Udall introduced a resolution calling on the Administration to declassify records on mass killings and U.S. covert action in Indonesia in the 1960s. “Some may ask, why is this resolution needed? Why now? This is why: The survivors and descendants of victims continue to be marginalized. Many of the killers continue to live with impunity. Very few Americans are aware of these historical events or our government’s actions during this time. These events demand our attention and resolution as we work together to build a strong Asia-Pacific partnership,” he said.

And also last week, Congress approved the new FY 2014-15 intelligence authorization act containing a provision (sec. 321) that “requires the DNI to submit a report to Congress describing proposals to improve the declassification process.”

The release of the executive summary of the Senate Intelligence Committee report on CIA’s post-9/11 interrogation program is, among other things, an epic act of record preservation.

Numerous CIA records that might not have been disclosed for decades, or ever, were rescued from oblivion by the Senate report and are now indelibly cited and quoted, even if many of them are not yet released in full.

That’s not a small thing, since the history of the CIA interrogation program was not a story that the Agency was motivated or equipped to tell.

“The CIA informed the Committee that due to CIA record retention policies, the CIA could not produce all CIA email communications requested by the Committee,” the report noted, explaining that the desired information was sometimes recovered from a reply message when the original email was missing.

Agency emails turned out to be a critical source of information, a fact that illuminates the Committee’s sharp response recently to the (now suspended) CIA proposal to the National Archives (NARA) to destroy most Agency emails of non-senior officials.

Thus, the gruesome record of the waterboarding of al Qaeda operative Abu Zubaydah “was referenced in emails, but was not documented or otherwise noted in CIA cables.” (This is at odds with NARA’s initial view that “It is unlikely that permanent records will be found in these email accounts that is not filed in other appropriate files.”)

The Committee report is also a remarkable demonstration of the congressional oversight function that is all the more impressive because it was performed in adverse, unfavorable conditions.

It is striking to see how the CIA sometimes treated the Senate Intelligence Committee, its leadership and its staff with the same disdain and evasiveness that is often perceived by FOIA requesters and other members of the public.

Committee questions were ignored, inaccurate information was provided, and the oversight process was gamed.

“Internal CIA emails include discussion of how the CIA could ‘get… off the hook on the cheap’ regarding [then-Committee] Chairman [Bob] Graham’s requests for additional information…. In the end, CIA officials simply did not respond to Graham’s requests prior to his departure from the Committee in January 2003,” the report said.

“I am deeply disturbed by the implications of the study for the committee’s ability to discharge its oversight responsibility,” wrote Sen. Angus King (I-Maine) in his additional remarks. “Because it appears from the study that the committee was continuously misled as to virtually all aspects of this program, it naturally raises the extremely troubling question as to whether we can trust the representations of the agency in connection with difficult or sensitive issues in the future.”

But minority members of the Committee disputed this characterization: “In reality, the overall pattern of engagement with the Congress shows that the CIA attempted to keep the Congress informed of its activities,” they wrote in their extensive dissenting views.

Perhaps the most important achievement of the Committee report was to document and memorialize the fact that agents of the US Government practiced torture. Not “harsh measures” or “enhanced techniques,” but torture.

Senator Susan Collins (R-Maine), who criticized what she said were methodological flaws in the Committee report, said in her additional views that “Despite these significant flaws, the report’s findings lead me to conclude that some detainees were subject to techniques that constituted torture. This inhumane and brutal treatment never should have occurred.”

By the same token, the most important omission from the report is the absence of any discussion of remedies.

Now that it is firmly established that “we tortured some folks,” as President Obama awkwardly put it, the question is what to do about it. Confession without atonement is incomplete.

Prosecution seems problematic for a number of reasons, including the difficulty of localizing responsibility, when it is entire institutions and not just particular officials that failed.

A different approach to the problem would start by considering the individuals who suffered abuse at the hands of the U.S. government, including a number of persons who were detained in error. Congress could now ask how some of them (i.e. those who are still alive) could be compensated in some measure for what was wrongly done to them.

Several previous efforts to seek remedies for torture were deflected by use of the state secrets privilege. In light of the detailed findings of the Senate Intelligence Committee report, that sort of evasion should be harder to sustain. Congress could accelerate a resolution of the problem with a focused investigation of what potential remedies are now feasible and appropriate.

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The Intelligence Community Inspector General (IC IG) received a tip last year that the Intelligence Community might have assembled a database containing US person data in violation of law and policy.

“A civilian employee with the Army Intelligence and Security Command made an IC IG Hotline complaint alleging an interagency data repository, believed to be comprised of numerous intelligence and non-intelligence sources, improperly included U.S. person data,” the IC IG wrote. “The complainant also reported he conducted potentially improper searches of the data repository to verify the presence of U.S. persons data. We are researching this claim.”

The resolution of that complaint concerning improper collection of U.S. person data was not disclosed. But the IC IG evidently found it credible enough to justify a rare report to the White House Intelligence Oversight Board (IOB).

Update, 12/04/14: The IC IG said it did not corroborate the complaint. “We researched this allegation to determine whether the data repository was operating with sufficient internal controls to provide reasonable assurance that the collection, retention and dissemination of information complied with applicable laws, executive orders, policies, and regulations. We reached a preliminary conclusion that this was the case and thus had no basis for further review.” The case was closed on June 4, 2014.

The report to the IOB was noted in the IC Inspector General’s Semi-Annual report for October 2013 to March 2014 that was released this week (in redacted form) under the Freedom of Information Act.

The IC Inspector General, I. Charles McCullough III, has oversight responsibility both for the Office of the Director of National Intelligence (ODNI) and for the Intelligence Community as a whole (but not for its individual member agencies). In addition to monitoring compliance with the law, the IC IG deals with a broad range of administrative, budgetary and personnel issues, several of which are described in the new report.

So, for example, “[An intelligence] contractor misconduct investigation substantiated that a contractor employee routinely misused government equipment and systems to engage in inappropriate and prurient Internet chat over an extended period of time.”

Judging from the Semi-Annual Reports, the IG is also capable of challenging senior ODNI leadership when there is cause to do so.

“An ODNI Senior Official engaged in conduct unbecoming a federal employee while on TDY [temporary duty] conducting official ODNI business,” according to the Semi-Annual Report for March-September 2013, which was also released this week.

“The Senior Official exhibited poor personal judgment that created circumstances which reflected poorly on the ODNI and potentially impaired his ability to perform his duties,” the IG report said. The case was referred to the ODNI Chief Management Officer, but further details such as the identity of the Senior Official were not divulged.

In the concentric circles of U.S. intelligence oversight, Inspectors General are close to the center — receiving allegations, interviewing witnesses, formulating responses, and taking appropriate action.

Though heavily redacted, the new Semi-Annual Reports include multiple points of interest, including these:

**    During the six-month period ending in March 2014, the IC IG processed 5 whistleblower complaints of waste, fraud or abuse, 3 “urgent concern” complaints, 2 requests for external review under the provisions of Presidential Policy Directive 19, and 1 whistleblower reprisal complaint. The outcomes of these cases were not described.

**    During the six-month period ending September 2013, the IC IG investigated two cases of unauthorized disclosures, neither of which was substantiated. There were no such investigations in the following six-month period.

**    “ODNI does not have a policy or process for notifying CIA Covert Capabilities Center when an employee or detailee separates from ODNI or is reassigned,” the IC IG reported. The CIA “Covert Capabilities Center” is not a familiar entity.

**    “An adverse work environment exists” in the IC Equal Employment Opportunity and Diversity Office.

**    In the six-month period ending last March, the IC IG complaint hotline “received 135 contacts, 48 internal contacts and 87 external contacts from the general public. ”

**    And while most ODNI and IC employees are directed to have no contacts with the media without prior authorization, the IC Inspector General made special arrangements for himself and his staff:  “We worked with PAO [ODNI Public Affairs Office] so they understood the need for the IC IG to work independently with media contacts to preserve IC IG objectivity and independence.”

In a four-part series this week, the Washington Examiner reported allegations that some agency Inspectors General are improperly subservient to, and protective of, their agency leadership.

In the United States Air Force, “intelligence components do not engage in experimentation involving human subjects for intelligence purposes.”

That unsolicited assurance was reiterated in the latest revision of Air Force Instruction 14-104, Oversight of Intelligence Activities, November 5, 2014.

“For purposes of this instruction, the term ‘human subjects’ includes any person, whether or not such person is a US person. No prisoners of war, civilian internees, retained, and detained personnel as covered under the Geneva Conventions of 1949 may be the subjects of human experimentation.”

The Instruction also addressed domestic imagery collection, reporting of “questionable intelligence activities,” and other topics.

Most of the national security agencies in the executive branch have now been granted approval to exempt certain 50 year old classified information from automatic declassification.

The national security classification system normally requires declassification of classified documents as they become 25 years old, with several specified exemptions to allow continued classification up to 50 years.

Only “in extraordinary cases” may agency heads propose to exempt information from declassification when it is 50 years old, says President Obama’s 2009 executive order 13526. They must request and receive approval from the Interagency Security Classification Appeals Panel (ISCAP).

So it was somewhat disconcerting to see an updated Notice from the Information Security Oversight Office last week indicating that dozens of executive branch agencies have now been granted exemptions from declassification for 50 year old information, including all of the major national security agencies. The United States Mint, among others, was even granted an exemption for 75 year old classified information.

It appeared that the extraordinary had become quite ordinary.

But that initial impression is not correct, said John P. Fitzpatrick, director of the Information Security Oversight Office, which oversees the national security classification system.

In the first place, the exemptions from declassification are limited to specific categories of information that the ISCAP was persuaded “would clearly and demonstrably cause damage to national security.”

“Blanket exemptions were not approved,” Mr. Fitzpatrick said.

And proposed exemptions for particular categories of information were critically reviewed by the ISCAP members, he said. “They often required agencies to make specific changes to their proposed declassification guide before granting approval.”

Because the ISCAP is a presidential body (of which he is the Executive Secretary), Mr. Fitzpatrick said he could not provide detailed information about its deliberative process. But he responded to several questions on the subject in general terms.

“During the evaluation of agency exemptions the ISCAP required that certain agencies significantly narrow their submissions,” he said. “In some cases, the ISCAP required that an agency remove a requested exemption element.”

Moreover, exemption from “automatic declassification” does not necessarily mean exemption from declassification altogether. Individual “records exempted from automatic declassification remain subject to mandatory declassification review,” he noted.

Why does the U.S. Mint need an exemption from declassification for 75 year old information? Is it some sort of anti-counterfeiting issue? No, he said, that’s not it.

The U.S. Mint declassification exemption, “which is perhaps the most [narrowly] targeted of all ISCAP-approved exemptions,” applies solely to “security specifications from the U.S. Bullion Depository at Fort Knox, which was built in the late 1930s,” Mr. Fitzpatrick said.

“Think ‘Goldfinger’,” he said.

It is entirely proper for a court to conduct in camera review of documents and testimony that the government asserts are subject to the state secrets privilege, said the plaintiffs in a lawsuit challenging the constitutionality of the “no fly” list.

The Justice Department had argued that judicial review of privileged documents was “inappropriate” and asked Judge Anthony J. Trenga of the Eastern District of Virginia to reconsider his order requiring such review. (Gov’t Resists Court Review of State Secrets, Secrecy News, August 27.)

But “the state secrets privilege… was never intended to provide the federal government with a blank check to usurp the rights of Americans in novel and profound ways,” countered Gadeir Abbas, attorney for Gulet Mohamed, who is challenging the “no fly” procedure.

“This Court’s August 6th Order [requiring in camera review of the contested documents] is an appropriate exercise of its authority to subject the federal government’s limiting-principle-free assertion of the state secrets privilege to some scrutiny,” Mr. Abbas wrote in his September 5 response.

A ruling from the Court is pending.

Whether the government’s argument prevails or not, Mr. Abbas noted that the 2013 Watchlisting Guidance which the government sought to withhold has been published online by The Intercept.

Attorney General Holder “had asserted the state secrets privilege over this document, but because it is now publicly available, the Court can consider it in its entirety,” he wrote.

In preparing its recent report on the Section 702 surveillance program, the Privacy and Civil Liberties Oversight Board (PCLOB) demonstrated an unusual mode of declassification, in which one executive branch agency asks another agency to declassify information.

In this case, the process was remarkably productive, and it may offer a precedent for future declassification efforts.

“During the process of preparing this report we sought and obtained declassification of facts about this still highly classified [Section 702] program in order to allow us to put in context how the program operates and clarify some public misconceptions,” said PCLOB Chairman David Medine at a July 2 public meeting.

“As a result, over one hundred new facts were declassified by the government to provide needed context for the program’s operation,” he said.

In what the PCLOB staff termed a “lateral declassification” model, it was an executive branch agency (i.e., the PCLOB itself) — rather than Congress or members of the public — that pressed another government agency (ODNI, NSA, CIA, FBI or Justice) to declassify specific information.

Such an interagency request for declassification differs from the “referrals” that agencies routinely direct to one another. In those cases, the receiving agency is simply asked to review records to identify its own classified information (or “equities”) and then to advise the originating agency what must be withheld and what may be disclosed.

Here, the PCLOB didn’t merely ask agencies to screen for classified information under existing classification standards. It urged them to actually change those standards. And in more than 100 specific cases, the agencies did so.

Most of the declassified facts in the PCLOB Section 702 report are not specifically flagged as having been declassified at the Board’s request, and they may therefore be easily overlooked. A partial compilation of such newly declassified facts, prepared by a participant in the process, was obtained by Secrecy News.

Several features appear to have contributed to the efficacy of the lateral declassification approach.

For one thing, the requesting agency (the PCLOB) already possessed the requested information in classified form. So it knew exactly what it was asking for, and why it was asking for it to be declassified.

And then the fact that the declassification requests originated within the executive branch itself (the PCLOB is an independent executive branch agency) made it harder for the recipient agencies to ignore the request and easier for them to fulfill it.

By contrast, public requests through the Freedom of Information Act often seem to decline into an adversarial contest, in which the agency adopts a defensive posture and offers only minimal, grudging compliance with disclosure requirements.  (At CIA, one gets the impression that asking for a record to be declassified can make it less likely to be disclosed.) Requests from Congress also inevitably have a political overlay, and may be seen to serve an agenda that does not coincide with the Administration’s own.

But as part of the Administration, the PCLOB’s many declassification requests did not trigger the sort of immune response that any outside request would have done.

Of course, the PCLOB’s work, including its declassification proposals, did not take place in a vacuum.

“A lot of political wind was at our back,” said Peter Winn, acting general counsel for the Board.

Not only had related classified details entered the public domain through the Snowden disclosures, but calls for declassification of more information regarding current surveillance programs had been explicitly endorsed by the Director of National Intelligence and other senior officials.

Because of these competing factors, the role played by the Board’s “lateral declassification” approach cannot be precisely delineated or clearly distinguished from them.

But its apparent effectiveness is consistent with the productive declassification work performed by another executive branch body, the Interagency Security Classification Appeals Panel (ISCAP), which has declassified information in a large majority of the mandatory declassification review appeals presented to it.

Perhaps most important, the Board’s experience with declassification in the Section 702 report may serve as a precedent for similar initiatives in the future.

“For us, it’s a model,” said Sharon Bradford Franklin, executive director of the PCLOB.

She noted that more than 90% of the Board’s requests for declassification had been granted, and that they preceded completion of the Board’s report. (That is, the declassification actions were not predicated on any agency’s review of the Board’s conclusions or recommendations.)

Enough information about the 702 program was declassified that a classified annex — which had earlier been assumed to be necessary — turned out to be unnecessary, Ms. Franklin said.

She also credited the intelligence agencies for their diligent engagement and cooperation in the declassification process, as did the published PCLOB report.

“In the preparation of this Report, the Board worked with the Intelligence Community to seek further declassification of information related to the Section 702 program,” the report noted (at p. 3).

“Specifically, the Board requested declassification of additional facts for use in this Report. Consistent with the Board’s goal of seeking greater transparency where appropriate, the request for declassification of additional facts to be used in this Report was made in order to provide further clarity and education to the public about the Section 702 program.”

“The Intelligence Community carefully considered the Board’s requests and has engaged in a productive dialogue with PCLOB staff. The Board greatly appreciates the diligent efforts of the Intelligence Community to work through the declassification process, and as a result of the process, many facts that were previously classified are now available to the public.”

The final PCLOB report on the Section 702 program included several recommendations concerning transparency, including proposals for further specific declassification actions. Those proposals remain pending.

 

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The National Security Agency would be required to prepare an unclassified report on “all NSA bulk collection activities,” the Senate Appropriations Committee directed in its report on the Fiscal Year 2015 Department of Defense Appropriations bill, published yesterday.

The Committee told the NSA to prepare a report “describing all NSA bulk collection activities, including when such activities began, the cost of such activities, what types of records have been collected in the past, what types of records are currently being collected, and any plans for future bulk collection.”

Such a report would be expected to clarify whether NSA bulk collection extends beyond the acknowledged telephone metadata program in Section 215 of the USA Patriot Act.

The required report is to be “unclassified to the greatest extent possible,” the Senate Committee said.

In the reporting requirements that it imposed on NSA, the Senate Appropriations Committee notably went beyond what was required by the Senate or House Intelligence Committees.

The Appropriations Committee also directed NSA to submit additional reports on the total number of records acquired and reviewed by NSA in its bulk telephone metadata program over the past five years, and an estimate of the number of records of U.S. persons that have been acquired and reviewed in the telephone metadata program.

Another unclassified report is required to provide “a list of terrorist activities that were disrupted, in whole or in part, with the aid of information obtained through NSA’s telephone metadata program.”

A January 2014 report of the Privacy and Civil Liberties Oversight Board found that the Section 215 telephone metadata program had “minimal value in protecting the nation from terrorism.”

“We are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack,” the PCLOB report said.

In contrast to the Section 215 bulk telephone metadata program, the PCLOB said in a report this month that the Section 702 program to collect the communications of targeted non-U.S. persons abroad “has proven valuable in a number of ways to the government’s efforts to combat terrorism,” and that it had enabled the government to “discover previously unknown terrorist operatives and disrupt specific terrorist plots.”

The Board cautioned, however, that the 702 program “may allow a substantial amount of private information about U.S. persons to be acquired by the government, examined by its personnel, and used in ways that may have a negative impact on those persons.”

An estimate of the amount of such U.S. person information collected under the Section 702 program was not specifically required by the Senate Appropriations Committee.

Update: Identical reporting language was included by the Senate Appropriations Committee last year in its report on the FY2014 Defense Appropriations bill (h/t @byersalex), yet the required NSA reports were not produced.

At Emptywheel, Marcy Wheeler questions the utility of the proposed reports, particularly since the Senate Committee language lacks a clear, unambiguous definition of “bulk collection.”

The House of Representatives yesterday approved an amendment to cut the budget for the National Security Council by one third in response to NSC moves to block congressional access to information.

“Over the last few months, we have had several instances in which the National Security staff has mandated that the Department of Defense and other agencies selectively withhold information from congressional oversight committees,” complained Rep. Rodney Frelinghuysen (R-NJ), who introduced the amendment. It was not immediately clear which instances of withholding he was referring to.

“Accurate, complete, and timely reporting by the Department of Defense is essential for the [Appropriations] committee to conduct its oversight responsibilities,” added Rep. Peter Visclosky (D-IN), who endorsed the amendment to cut the NSC budget.

“Over the past few years, the size of the National Security Council’s staff has grown, and it appears that they have moved beyond their Presidential advisory role to involve themselves in decisions which are not in their purview,” said Rep. Frelinghuysen.

The amendment to reduce the FY 2015 NSC budget by $4.2 million, or approximately one-third, passed the House on a voice vote.