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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Official Dissembling and Misrepresentation

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

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

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

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

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

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

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

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

Suppressing Public Oversight

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

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

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

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

Judicial Overreach

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

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

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

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

Unchecked Secrecy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Inspector General at each government agency that classifies national security information is required by the Reducing Over-Classification Act of 2010 to review the agency’s classification program as part of an effort to combat overclassification.  Those reviews are now underway.  But if properly performed, they could put the Inspectors General at odds with senior officials at their agency who habitually overclassify.

In its latest semi-annual report to Congress last week, the Department of Justice Office of Inspector General (OIG) cited its ongoing work to evaluate Department classification activity.

“The OIG is reviewing the Department’s compliance with the Reducing Over-Classification Act to assess whether applicable classification policies, procedures, rules, and regulations have been adopted, followed, and effectively administered; and to identify policies, procedures, rules, or management practices that may result in misclassification of material,” the DoJ IG report said.

But at the Department of Justice, “misclassification of material” is arguably attributable to the senior leadership of the Department, if not the White House itself.

On May 22, Attorney General Eric Holder wrote to Congress to formally acknowledge that four U.S. citizens had been killed in counterterrorism operations, including Anwar al-Aulaqi and three others.  The death of Al-Aulaqi (and all but one of the others) at the hands of U.S. forces had of course been previously reported and had long been implicitly or explicitly acknowledged by U.S. officials.

But remarkably, Attorney General Holder wrote that this information “until now has been properly classified.”

In other words, information that everyone around the world who cared to know had already known for years was, according to Attorney General Holder’s letter to Congress, “properly classified” until May 22, 2013.  The disconnect between objective reality and official classification policy could hardly be more apparent.

Whether the DoJ Inspector General is prepared to take the Attorney General to task for tolerating or promoting this type of misclassification of material remains to be seen.

From another point of view, it could be argued that the Attorney General’s classification judgments are beyond reproach, particularly since the President’s executive order on classification makes the Attorney General the final arbiter of the order’s requirements (EO 13526, section 6.2c). If the Attorney General says something is properly classified, then by the terms of the executive order it is properly classified– by definition.

From that perspective, what the President himself once referred to as “the problem of over-classification” simply vanishes. The DoJ Inspector General could then report that the classification system is functioning perfectly, and that it is performing as intended.

The first of two rounds of Inspector General evaluations of classification activity is due to be completed by September 30, 2013.

The Foreign Intelligence Surveillance Court issued an order on Friday directing the Department of Justice to respond no later than June 7 to a motion filed on May 23 by the Electronic Frontier Foundation (EFF).  The order was signed by Judge Reggie B. Walton, presiding judge of the surveillance court.

EFF had asked the Court to formally consent to the release of records in which the Court found government surveillance activities to be inconsistent with the Fourth Amendment to the Constitution.  In response to a prior Freedom of Information Act request, the Justice Department had asserted that Court rules did not permit such disclosure, though that position is not explicitly stated in Court rules.  To overcome this impasse, EFF asked the Court to affirmatively consent to disclosure of the requested records.

The case was first reported in Group wants special court to release ruling on unlawful U.S. surveillance by Ellen Nakashima, Washington Post, May 22.

For further background, see EFF Takes FOIA Fight Over Secret Wiretaps to the Foreign Intelligence Surveillance Court by Mark Rumold, May 22.

Almost a year and a half after he was nominated by President Obama in December 2011, the Senate yesterday confirmed David Medine to be the chairman of the Privacy and Civil Liberties Oversight Board by a vote of 53-45.

Republicans, led by Sen. Charles Grassley, opposed the nominee and voted against him.

“I was disappointed that he failed to answer a basic yes-or-no question about national security law: ‘Do you believe that we are engaged in a war on terrorism?’,” Sen. Grassley said. “Instead of a simple yes or no, he opted for a more limited answer that military power is permissible in appropriate cases.”

Democrats, led by Sen. Patrick Leahy, praised Mr. Medine and the Board that he will now lead.

“The confirmation of this nominee is a significant victory for all Americans who care about safeguarding our privacy rights and civil liberties,” Sen. Leahy said. “The Privacy and Civil Liberties Oversight Board is a guardian of Americans’ privacy rights and civil liberties as well as an essential part of our national security strategy,” he said.

But this seems like an overstatement.  The size of the five-member Board and the resources available to it are not commensurate with the responsibilities it has nominally been assigned.  It cannot possibly perform comprehensive oversight of the broad range of privacy or civil liberties concerns that arise in the national security domain.  Expectations to the contrary are bound to be disappointed.  At best, the Board may serve as a boutique oversight shop that tackles a couple of discrete policy issues each year.

For background on the origins and development of the Board, see Privacy and Civil Liberties Oversight Board: New Independent Agency Status, Congressional Research Service, August 27, 2012.

“During calendar year 2012, the Government made 1,856 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.”

That somewhat opaque statistic was disclosed in the Justice Department’s latest annual report to Congress on the Foreign Intelligence Surveillance Act, filed on Tuesday.  As is usually the case, none of the requests for electronic surveillance were denied by the Court.

No matter how it is sliced and diced, the newly disclosed number of applications does not yield much substance.  It means that the government submitted an average of 5 requests per day last year for intelligence surveillance or physical search.  It is about 5% higher than the number of applications the year before (1,745), but quite a bit lower than the figure from 2007 (2,371).

The number of applications does not correspond directly to the number of targets, since multiple applications may be submitted in the course of an individual investigation. Nor is the outcome of the surveillance or search activity indicated in a way that would tend to validate or invalidate the authorization after the fact.

In any case, the FIS Court did not deny any of the government’s requests for authority to conduct electronic surveillance in whole or in part, the report said, although unspecified modifications were made to 40 proposed orders. The report does not say whether or not any requests for physical search were disapproved or modified.

The government also made 212 applications for access to business records and “tangible things” for foreign intelligence purposes, almost the same as the 205 the year before.

And also in 2012, the FBI submitted 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons (“excluding requests for subscriber information only”), down somewhat from the 16,511 requests (concerning 7,201 different persons) the year before.

As an instrument of public oversight, the annual reports on FISA are only minimally informative.  They register gross levels of activity, but they provide no measures of quality, performance or significance.  Neither counterintelligence successes nor failures can be discerned from the reports.  Nor can one conclude from the data presented that the FISA process is functioning as intended, or that it needs to be curbed or refined.

Congressional leaders blocked efforts to impose new or stronger public reporting requirements when the FISA Amendments Act was reauthorized late last year. However, Sen. Jeff Merkley and several Senate colleagues asked the FIS Court to summarize its opinions in such a way as to facilitate their eventual declassification and disclosure.  This request has produced no known results to date.

The FISA itself is a product of a rich period of political ferment in the 1970s when public and private institutions converged to promote increased transparency, improved oversight and meaningful new constraints on government authority.  Investigative journalists wrote groundbreaking stories, Congressional committees held historic hearings, political activists and ordinary citizens mobilized to defend their interests, leading to real and lasting changes. On the legislative front, these included passage of an invigorated Freedom of Information Act, along with the Privacy Act, the Government in the Sunshine Act, and the FISA, which subjected intelligence surveillance activities to at least a degree of independent judicial review.

An interesting account of that momentous period can be found in the new book Reining in the State: Civil Society and Congress in the Vietnam and Watergate Eras by Katherine A. Scott, University Press of Kansas, March 2013.

Congressional oversight of intelligence is “dysfunctional,” according to a new report from the liberal Center for American Progress.

Some of the most urgent and fundamental policy issues facing the nation are matters of intelligence policy: What are the proper boundaries of domestic intelligence surveillance? What is the legal framework for interrogation of enemy detainees? Why haven’t the recommendations of the 9/11 Commission been effectively implemented?

But at a moment when intelligence policy is relatively high on the public agenda, the intelligence oversight committees in Congress seem to have little to contribute.

Even on specific intelligence questions such as the conduct of warrantless domestic surveillance by the National Security Agency, the public can gain more insight from the Senate Judiciary Committee, which has held several public hearings on the subject, than from the Senate Intelligence Committee, which has held none.

The new Center for American Progress report provides a useful survey of the history of intelligence oversight and its current failings, along with a prescription for improvement.

“Correcting the problems that plague congressional oversight of intelligence will not require dramatic changes in the existing oversight structure. Congress has all the tools it needs to conduct its oversight responsibilities effectively….it is simply not using them. It must.”

See “No Mere Oversight: Congressional Oversight of Intelligence is Broken,” June 13, 2006.

Some of the limitations of intelligence oversight are implicit in the structure of the process.

For an earlier (1992) self-critical account by a staff member of the Senate Intelligence Committee, see “Congressional Oversight of Intelligence: One Perspective” by Mary K. Sturtevant, American Intelligence Journal, Summer 1992.

A recent study (pdf) of Romania’s intelligence apparatus finds that “legislative control of intelligence in Romania can be estimated on a low-medium-high scale as ‘medium to high’.”

Furthermore, in Romania “the budgets of the intelligence agencies are transparent,” which is more than can be said about U.S. intelligence.

See “The Intelligence Phenomenon in a New Democratic Milieu: Romania — A Case Study” by Valentin Fernand Filip, Naval Postgraduate School, March 2006.