Last May, J. William Leonard, the former director of the Information Security Oversight Office, asked a federal court for permission to disclose and discuss declassified National Security Agency documents that had been cited in the prosecution of former NSA official Thomas Drake.  The documents represented a particularly “egregious” and “willful” case of overclassification, Mr. Leonard said, that needed to be publicly addressed.

Last month, government attorneys said there was no basis for action by the Court, and they suggested that Mr. Leonard could submit a Freedom of Information Act request to NSA for the documents instead.

Yesterday, Mr. Drake’s attorneys fired back in support of Mr. Leonard, who served as an expert for the Drake defense. They said Mr. Leonard is properly seeking relief from the Court because it was the Court that issued the Protective Order that limits his ability to discuss the issue.

“The Protective Order remains in effect today. It was not voided or mooted when judgment was entered last year. It has not expired,” wrote public defenders James Wyda and Deborah L. Boardman, Mr. Drake’s attorneys. “Although the United States may not take the terms of its own Protective Order seriously, Mr. Leonard does.”

The government’s suggestion that Mr. Drake file a FOIA request is unsatisfactory in two ways, Mr. Wyda and Ms. Boardman wrote.  First, NSA has failed to release these documents in response to previous FOIA requests, including one filed by me last year.

“Given NSA’s track record and its failure to respond to prior requests […], Mr. Leonard had no reason to believe his FOIA request for the same document would have been successful.”

But even if NSA did release the documents under FOIA, that would not solve Mr. Leonard’s problem, the defense attorneys explained.

“Even if Mr. Leonard had received the documents pursuant to a FOIA request, he would still be bound by the terms of the Protective Order that prohibit him from disclosing and discussing the documents.  It would do Mr. Leonard no good to merely receive the documents pursuant to a FOIA request if he cannot discuss the documents because he is bound by a Court Order that prohibits such discussion.”

The good news, they said, is that NSA has already prepared lightly redacted versions of the documents that are suitable for public release.  “These redacted versions are acceptable to Mr. Leonard,” Mr. Wyda and Ms. Boardman wrote.

Now it will be up to the Court to rule.

The deeper question raised by Mr. Leonard’s action — how to respond to “egregiously” mistaken classification actions — remains open.

“I’ve had it up to my keister with these leaks,” President Reagan complained in 1983 after a series of unauthorized disclosures.  “Keister is slang for buttocks,” the Associated Press helpfully explained at that time.

One of President Reagan’s responses to the flood of leaks was to direct the use of polygraph examinations in leak investigations. (The Director of National Intelligence reflexively responded in a similar way last month.)

National Security Decision Directive 84 of March 11, 1983 directed that “All departments and agencies with employees having access to classified information are directed to revise existing regulations and policies, as necessary, so that employees may be required to submit to polygraph examinations, when appropriate, in the course of investigations of unauthorized disclosures of classified information.”

Amazingly, this policy was denounced by then-Secretary of State George Shultz, who threatened to resign rather than submit to a polygraph examination.  He was excused from the test.

“Management through fear and intimidation is not the way to promote honesty and protect security,” Secretary Shultz said in a January 9, 1989 valedictory speech, explaining his opposition to the polygraph.

But management through fear and intimidation seems to be a recurring theme in security policy.  And polygraph testing is part of that, judging from a remarkable story published this week by McClatchy Newspapers.

“One of the nation’s most secretive intelligence agencies is pressuring its polygraphers to obtain intimate details of the private lives of thousands of job applicants and employees, pushing the ethical and legal boundaries of a program that’s designed instead to catch spies and terrorists,” wrote McClatchy reporter Marisa Taylor.

“The National Reconnaissance Office is so intent on extracting confessions of personal or illicit behavior that officials have admonished polygraphers who refused to go after them and rewarded those who did, sometimes with cash bonuses, a McClatchy investigation found.”  See “National Reconnaissance Office accused of illegally collecting personal data,” July 10.  (More here.)

“The US is, so far as I know, the only nation which places such extensive reliance on the polygraph,” wrote convicted spy Aldrich Ames in a November 2000 letter from prison. “It has gotten us into a lot of trouble.”

The executive branch has just completed a two-year review of its classification guidance that was ordered by President Obama as a way to combat overclassification of government information.  The Review was intended “to ensure the guidance reflects current circumstances and to identify classified information that no longer requires protection and can be declassified” (as per section 1.9 of executive order 13526).

The early results of the Fundamental Classification Guidance Review, which formally concluded on June 27, make it clear that something out of the ordinary occurred and that some changes have been made, but the significance of those changes remains uncertain.

The single most dramatic outcome of the Review is that the Department of Defense, which is the largest classifying agency, eliminated more than 400 of its 2000 classification guides.  Each guide is a compilation of detailed classification instructions for an individual program or topical area.  Those cancelled guides can no longer be used to authorize the classification of information.

“Approximately 20% of DoD’s non-compartmented SCGs [security classification guides] have either been eliminated or identified for retirement,” the Pentagon said in its final report on the Fundamental Review.

The Air Force eliminated 44 guides (out of 306 extant), the Army eliminated 72 guides (out of 417), and the Navy eliminated 248 guides (out of 988), the DoD report showed.

Unfortunately, the practical effect of these startling reductions is hard to assess, and it may well be less substantial than the impressive numbers would suggest.  To the extent that the cancelled guides pertain to programs that have been terminated, their elimination will have no effect whatsoever.  Likewise, to the extent that their contents may have been incorporated into or are duplicative of other guides which have not been cancelled, the result is a wash.

In some cases, it is certain that no declassification resulted from the process.  Thus, the Joint Staff, DARPA, and DTRA all state explicitly that none of their information was declassified as a result of the Fundamental Review, since it was all deemed to be properly classified.

In other cases, however, some declassification is known to have occurred due to the Review.  The National Reconnaissance Office, for example, downgraded several categories of classified NRO information and declassified two of them:  “the identification of a contractor as an NRO satellite vehicle contractor” and “the ‘fact of’ real-time command and control telemetry.”

Even such narrow modifications can produce measurable changes in disclosure policy.  In 2008, the “fact of” NRO radar satellite reconnaissance was declassified, which led to the release this week of an extensive body of NRO material about the QUILL synthetic aperture radar satellite, which flew in 1964.

But the general lack of clarity concerning the results of the Fundamental Review is something of a disappointment.  Moreover, it is not consistent with the guidance that was provided to agencies last January by the Director of the Information Security Oversight Office (ISOO), John P. Fitzpatrick.

“To the greatest extent possible,” Mr. Fitzpatrick wrote then, the final reports of the Fundamental Review “should be informative as to how much information that was classified is no longer classified as a result of the review.  The report should also provide the best estimate of how much information that would normally have been classified in the future will now not become classified.”

The DoD Report, at least, did not fulfill that instruction.

Mr. Fitzpatrick said yesterday that he was still reviewing the reports of the Fundamental Review, which will all be posted on the ISOO website, and that he would discuss them at a later date.

Even in agencies where declassification did not take place, the improved quality of the classification guidance that resulted from the Review appears to have had a salutary effect on the classification system.

According to the latest ISOO Annual Report to the President, the number of original classification decisions — or newly generated secrets — actually decreased by a sizable 43% from 2010 to 2011.  The number of original classifications last year was lower than it has been since 1996.

“The primary reason for this is a greater utilization of classification guides and greater adherence to executive order guidance on the incorporation of original decisions into classification guides,” the ISOO report said.

The Congressional Research Service has just produced a second report concerning “Article V Conventions” by which state legislatures can try to initiate amendments to the U.S. Constitution.

“The Article V Convention for proposing amendments was the subject of considerable debate and forethought at the Constitutional Convention [in 1787],” the new report says. “The founders clearly intended it as a balance to proposal of amendments by Congress, providing the people, through their state legislatures, with an alternative means to consider amendments, particularly if Congress was unable or unwilling to act on its own. Since it is one of the few provisions of the Constitution that has never been implemented, however, the Article V Convention presents many questions for Congress.”

See The Article V Convention for Proposing Constitutional Amendments: Historical Perspectives for Congress, July 10, 2012.  The earlier Article V report on Contemporary Issues for Congress, noted yesterday, is here.

Other new and updated CRS reports that have not been made readily available to the public include the following.

Abortion: Judicial History and Legislative Response, July 9, 2012

Higher Education Tax Benefits: Brief Overview and Budgetary Effects, July 10, 2012

Prescription Drug Monitoring Programs, July 10, 2012

Yesterday, Rep. Leonard Lance (R-NJ) and Rep. Mike Quigley (D-IL) introduced a resolution in the House of Representatives that make non-confidential CRS reports publicly available on a congressional website.  If the resolution is approved, the public would have authorized access to most CRS reports and would no longer have to rely on unauthorized access.  See “New Bill Would Open CRS Reports to Public” by Daniel Schuman of the Sunlight Foundation.

Iran continues to develop its military capabilities, including ballistic missiles, nuclear weapons-related technologies, and unconventional forces, according to a new Department of Defense report to Congress.

The Pentagon assessment was first reported yesterday in “Iran’s Ballistic Missiles Improving, Pentagon Finds” by Tony Capaccio, Bloomberg News.

The report itself appears to stress that while developing offensive capabilities, Iran’s military posture is essentially defensive in character.

“Iran’s military doctrine remains designed to slow an invasion; target its adversaries’ economic, political, and military interests; and force a diplomatic solution to hostilities while avoiding any concessions that challenge its core interests,” the report says.

Similarly, “Iran’s unconventional forces are trained according to its asymmetric warfare doctrine and would present a formidable force while defending Iranian territory.”

A copy of the new Pentagon Annual Report on Military Power of Iran, dated April 2012 but transmitted to Congress late last month, is available here.

Judge Raymond J. Dearie of the Eastern District of New York was appointed to the Foreign Intelligence Surveillance Court on July 2 by the Chief Justice of the United States.

The 11-member FIS Court rules on applications for domestic intelligence surveillance and physical search under the Foreign Intelligence Surveillance Court.  Judge Dearie replaces Judge Malcolm Howard whose seven-year term expired on May 18, 2012.

Judge Dearie’s appointment last week was confirmed today by Sheldon L. Snook, a spokesman for the Court.  The current membership of the FIS Court may be found here.

Judge Dearie was nominated to the federal bench by President Reagan in February 1986.

The Foreign Intelligence Surveillance Act has played a role in at least one case presided over by Judge Dearie, namely that of Najibullah Zazi.  In 2009, prosecutors in that case gave notice of their intent to use evidence obtained through FISA surveillance. In the event, Zazi pled guilty in 2010 to multiple charges of conspiracy and support for a terrorist organization.

 

Article V of the U.S. Constitution prescribes two ways by which the Constitution can be amended:  Either Congress may propose amendments for ratification by the states, or else a majority of state legislatures may ask Congress to call a convention for considering amendments.

A new report by the Congressional Research Service examines the possibility of a convention to amend the Constitution.  That option has never been used in practice but, CRS says, it could become newly appealing under present circumstances.

“Various contemporary developments could contribute to a renewal of congressional interest in the Article V Convention alternative,” the new CRS report said.  “The emergence of Internet and social media-driven public policy and issue campaigns has combined with renewed interest in specific constitutional amendments, and the Article V Convention procedure in general, as a means of bypassing perceived policy deadlock at the federal level.”

However, “The Constitution provides only a brief description of the Article V Convention process, leaving many details that would need to be considered if a convention were to become a serious prospect.”

A copy of the new CRS report was obtained by Secrecy News.  See The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, July 9, 2012.

Other new and updated CRS reports that have not been approved by Congress for broad public access include the following.

Health Care: Constitutional Rights and Legislative Powers, July 9, 2012

U.S. Postal Service: Background and Analysis of H.R. 2309 and S.1789 in the 112th Congress, July 9, 2012

Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues, July 6, 2012

Criminal Prohibitions on the Publication of Classified Defense Information, June 26, 2012

 

The Director of National Intelligence issued a new directive that is intended to improve foreign language skills throughout the U.S. intelligence community.

“Foreign language capabilities are essential to the performance of intelligence missions and operations,” the May 2012 directive notes.

Foreign language competence for intelligence purposes extends well beyond mastery of a common vocabulary or the ability to translate a newspaper article.

“Foreign language capabilities include a broad range of language proficiency skills and other abilities, such as cultural awareness and understanding, regional expertise, skill in translation and interpretation, and knowledge of the scientific and technical vocabularies of critical foreign languages,” the directive says.

“This Directive establishes an integrated approach to develop, maintain, and improve foreign language capabilities across the Intelligence Community (IC).” See Intelligence Community Directive 630, “Intelligence Community Foreign Language Capability,” May 14, 2012.

Shortfalls in foreign language abilities are a recurring problem in U.S. intelligence agencies.

“U.S. intelligence efforts are complicated by unfilled requirements for foreign language expertise,” according to the Congressional Research Service.

“A major constraint on HUMINT collection is the availability of personnel trained in appropriate languages. Cold War efforts required a supply of linguists in a relatively finite set of foreign languages, but the intelligence community now needs experts in a wider range of more obscure languages and dialects,” wrote CRS specialist Richard A. Best, Jr. last year.

Questions of law and policy regarding unauthorized disclosures of classified information, whistleblower rights and the adequacy of oversight have been discussed lately in several law review articles, including these.

Whistleblowers and the Obama Presidency: The National Security Dilemma by Richard Moberly, Employee Rights and Employment Policy Journal, Volume 16, 2012

Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protection for Leakers of Classified Information by Heidi Kitrosser, Journal of National Security Law & Policy, 2012

Protecting Rights from Within? Inspectors General and National Security Oversight by Shirin Sinnar, Stanford Law Review, forthcoming

Newly updated reports from the Congressional Research Service that have not been authorized by Congress for broad public distribution include the following.

Trafficking in Persons: International Dimensions and Foreign Policy Issues for Congress, July 6, 2012

Monetary Policy and the Federal Reserve: Current Policy and Conditions, July 6, 2012

The Definition of “Supervisor” Under the National Labor Relations Act, July 5, 2012

Military Construction, Veterans Affairs, and Related Agencies: FY2013 Appropriations, July 5, 2012

Updated below

Last month, former CIA officer John Kiriakou, who is accused of unlawfully disclosing classified information to two reporters, said in pre-trial motions that he had been wrongly and unfairly singled out for prosecution, particularly since he had criticized the U.S. practice of waterboarding.  (“Kiriakou Calls Leak Prosecution Selective, Vindictive,” Secrecy News, June 22).

This week, prosecutors unsurprisingly rejected such claims while affirming that they intend to vigorously pursue their case against Mr. Kiriakou.

“The genesis of this prosecution has nothing to do with waterboarding, the national conversation about its wrongness or rightness, the defendant’s opinions, or other public statements he may or may not have made,” the July 2 government response states.

The new government filing presents a series of legal arguments against the defense motions for dismissal, explaining why prosecutors believe the Intelligence Identities Protection Act and the Espionage Act statutes under which Mr. Kiriakou is charged are sufficiently clear and specific to be constitutional.  Beyond that, the new government response makes a couple of noteworthy points.

“The government does not intend to seek the testimony of either journalist to whom Kiriakou made the charged disclosures,” prosecutors wrote.  By refraining from subpoenaing the two unnamed reporters — believed to be Matthew Cole, formerly of ABC News, and Scott Shane of the New York Times — prosecutors will steer clear of the controversies and difficulties facing the prosecution of former CIA officer Jeffrey Sterling, which is currently suspended while the government appeals the right to subpoena New York Times reporter James Risen, to whom Sterling allegedly provided classified information.

Prosecutors also suggest at one point that their obligation to prove at trial that Mr. Kiriakou had specific “reason to believe” his alleged disclosures would damage national security would be satisfied by “the non-disclosure agreements signed by Kiriakou,” since those agreements include boilerplate language affirming that unauthorized disclosures could cause injury to the United States.  This approach seems calculated to enable prosecutors to overcome the otherwise daunting hurdle of demonstrating the defendant’s intent to harm the country.  It is unclear if it would be found legally satisfactory by the court or persuasive to a jury.

In a critical account of the Kiriakou case to date, Dan Froomkin wrote that “The bitterest irony of the case is that if Kiriakou had actually tortured, rather than talked about it, he almost certainly wouldn’t be in trouble.” See “Squelching Secrets: Why Are Obama’s Prosecutors Pursuing John Kiriakou?”, Huffington Post, July 4.

Update (7/19/12):  The defense reply to the government is here.

William Leonard, the former director of the Information Security Oversight Office, served as an expert witness for the defense in the misconceived prosecution of Thomas Drake, in which all felony charges against Mr. Drake were dismissed.  (Mr. Drake pleaded guilty to a misdemeanor count.)

Now Mr. Leonard is seeking permission from the trial judge in the Drake case to publicly disclose and discuss certain National Security Agency documents cited in the charges against Mr. Drake that he says were classified in violation of national policy.

“I believe the Government’s actions in the Drake case served to undermine the integrity of the classification system and as such, have placed information that genuinely requires protection in the interest of national security at increased risk,” Mr. Leonard wrote in a May affidavit seeking permission from Judge Richard D. Bennett to reveal the now-declassified (but still undisclosed) documents. Attorneys for Mr. Drake asked the court to release Mr. Leonard from the protective order that restricts disclosure of the documents, so that he could publicly pursue his criticism of their original classification by NSA.  See “Former Secrecy Czar Asks Court to Release NSA Document,” Secrecy News, May 23, 2012.

But government attorneys said that Mr. Leonard has no standing to request relief from the protective order that was imposed on the NSA documents.  They added that if he wants the documents to be publicly disclosed he should request them under the Freedom of Information Act.

“The problem with Leonard’s claim is that it relies not on injury to him, but instead on a general desire to complain to the press and the public,” the government said in a June 22 response to Mr. Leonard.  Instead of court-ordered release, “the proper alternative… is for Leonard to file a Freedom of Information Act (FOIA) request with the National Security Agency (NSA), which is prepared to act expeditiously upon the request.”

As it happens, I requested one of those documents under FOIA last year, and NSA has not acted on it expeditiously, or at all.

But the government said “The NSA has already prepared FOIA-approved versions of the documents at issue” which involve only minimal redactions.

“The government has no animus toward Leonard or his desire to express his opinion about the documents in question — only an interest in appropriately protecting the sensitive nature of the material and to prevent a flood of similar claims by non-parties in other completed cases,” the government response said.

See also “Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 1, 2011.