Director of National Intelligence James R. Clapper issued a directive earlier this month to improve the protection of intelligence information and to help prevent unauthorized disclosures.

The newly revised Intelligence Community Directive 700 requires a new degree of collaboration between counterintelligence and security activities.  While counterintelligence (CI) was scarcely mentioned in the previous version of the policy on protecting intelligence in 2007, it is now being elevated to a central role and integrated with security.

“Together, CI and security provide greater protection for national intelligence than either function operating alone,” the new directive states.

In order to combat the insider threat of unauthorized disclosures, the directive prescribes that “all personnel with access to national intelligence… shall be continually evaluated and monitored….”

But since there are more than a million government employees and contractors holding Top Secret clearances who are potentially eligible for access to intelligence information, it seems unlikely that any significant fraction of them can literally be “continually monitored.”  Still, that is now formally the objective.

A copy of the June 7, 2012 directive on “Protection of National Intelligence” was released by the Office of the Director of National Intelligence under the Freedom of Information Act.

The new directive has been under development for at least several months.  It was not specifically devised as a response to the latest controversy over leaks of classified information.

It serves as a reminder that the implementation of revised policies to address unauthorized disclosures of classified information (including congressional action just last year to establish an “insider threat detection program”) is ongoing, possibly obviating the need for new legislation.

A 2008 report by the Congressional Research Service discussed the history of claims of executive privilege, including various unresolved questions surrounding its use.  The Obama Administration asserted executive privilege today in connection with records sought by a House Committee.  See Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments, updated August 21, 2008.

Newly updated reports from the Congressional Research Service that Congress has not made publicly available include the following.

U.S.-China Military Contacts: Issues for Congress, June 19, 2012

Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade Policy, June 18, 2012

Madagascar’s Political Crisis, June 18, 2012

Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, June 15, 2012

U.S. Trade Deficit and the Impact of Changing Oil Prices, June 18, 2012

Unauthorized Alien Students: Issues and “DREAM Act” Legislation, June 19, 2012

Federal Taxation of Aliens Working in the United States, May 18, 2012

An updated report from the Congressional Research Service proposes a series of questions to help inform and guide congressional debate on the future of the U.S. war in Afghanistan and its aftermath.  See In Brief: Next Steps in the War in Afghanistan? Issues for Congress, June 15, 2012.

Other new and (mostly) updated CRS reports that Congress has not made publicly accessible include the following.

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, June 13, 2012

The Navy Biofuel Initiative Under the Defense Production Act, June 13, 2012

Navy Ship Names: Background For Congress, June 15, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, June 14, 2012

Coast Guard Polar Icebreaker Modernization: Background, Issues, and Options for Congress, June 14, 2012

Coast Guard Cutter Procurement: Background and Issues for Congress, June 13, 2012

Comprehensive Environmental Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and Related Provisions of the Act, June 14, 2012

Employee Stock Options: Tax Treatment and Tax Issues, June 15, 2012

Proliferation Security Initiative (PSI), June 15, 2012

U.S. Response to the Global Threat of Malaria: Basic Facts, June 15, 2012

U.S. Response to the Global Threat of Tuberculosis: Basic Facts, June 15, 2012

U.S. Response to the Global Threat of HIV/AIDS: Basic Facts, June 15, 2012

U.S.-Taiwan Relationship: Overview of Policy Issues, June 15, 2012

Drought in the United States: Causes and Issues for Congress, June 12, 2012

The Department of Defense has identified 110 sites in the United States that could serve as bases for military unmanned aerial systems (UAS), or drones.  A new report to Congress lists each of the 110 sites “and the UAS likely to fly at that location.”  See “Report to Congress on Future Unmanned Aircraft Systems Training, Operations, and Sustainability,” Department of Defense, April 2012 (pp. 9-12).

The newly disclosed DoD report was first reported by InsideDefense.com.

The actual or potential drone bases are located in 39 of the 50 states, from Fort McClellan in Alabama to Camp Guernsey in Wyoming, as well as Guam and Puerto Rico.

Currently, the DoD and the military have “88 active certificates of authorization (COAs) at various locations around the country” that permit them to fly UASs outside of restricted military zones, the report to Congress said.  COAs are issued by the Federal Aviation Administration.

But “The rapid increase in fielded UAS has created a strong demand for access within the NAS [National Airspace System] and international airspace. The demand for airspace to test new systems and train UAS operators has quickly exceeded the current airspace available for these activities,” the report said.

The Senate Armed Services Committee, evidently receptive to this demand, said in its report on the FY2013 defense authorization act that integration of drones into domestic airspace should be accelerated.  See “Senate: Drones Need to Operate ‘Freely and Routinely’ in U.S.,” Secrecy News, June 8, 2012.

The website Public Intelligence previously identified 64 U.S. drone site locations.  See also “Revealed: 64 Drone Bases on American Soil” by Lorenzo Franceschi-Bicchierai, Wired Danger Room, June 13:

“UAS will not achieve their full potential military utility unless they can go where manned aircraft go with the same freedom of navigation, responsiveness, and flexibility,” the new DoD report to Congress said.

A bill “to protect individual privacy against unwarranted governmental intrusion through the use of the unmanned aerial vehicles” (HR 5925) was introduced in the House of Representatives on June 7 by Rep. Austin Scott.  A companion bill (S.3287) has been introduced in the Senate by Sen. Rand Paul.

New and updated reports from the Congressional Research Service which have not been made publicly accessible include the following.

Alternative Fuel and Advanced Vehicle Technology Incentives: A Summary of Federal Programs, June 12, 2012

SBA New Markets Venture Capital Program, June 12, 2012

Health Insurance Premium Credits in the Patient Protection and Affordable Care Act (ACA), June 13, 2012

The U.S. Postal Service: Common Questions About Post Office Closures, June 13, 2012

Multiyear Procurement (MYP) and Block Buy Contracting in Defense Acquisition: Background and Issues for Congress, June 13, 2012

Iraq: Politics, Governance, and Human Rights, June 13, 2012

The Jackson-Vanik Amendment and Candidate Countries for WTO Accession: Issues for Congress, June 13, 2012

Russia’s Accession to the WTO and Its Implications for the United States, June 13, 2012

Permanent Normal Trade Relations (PNTR) Status for Russia and U.S.-Russian Economic Ties, June 13, 2012

Navy Littoral Combat Ship (LCS) Program: Background, Issues and Options for Congress, June 13, 2012

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for Congress, June 12, 2012

“The unauthorized release of classified information is a crime–it is a crime–because it threatens our national security and puts the lives of those who are sworn to defend our Nation in jeopardy,” said Sen. John Cornyn (R-TX) said on the Senate floor yesterday. “Everyone agrees [this] is criminal conduct.”

A resolution introduced by Sen. John McCain and twenty Republican colleagues calling for appointment of a special counsel to investigate recent leaks stated flatly that “the unauthorized disclosure of classified information is a felony under Federal law.”

But these statements are imprecise and misleading.  While some unauthorized disclosures of classified information are indeed contrary to law, it is not the case that all such disclosures violate the law.  In fact, there is no law that categorically prohibits the release of classified information.

“It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved,” wrote Attorney General John Ashcroft in an October 2002 report to Congress.

Significantly, AG Ashcroft added that “The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret.”

Likewise, according to the Congressional Research Service, “there is no one statute that criminalizes the unauthorized disclosure of any classified information…. It is possible that some of the government information… does not fall under the express protection of any statute, despite its classified status.”

Some types of classified information are specifically protected by law, including that pertaining to communications intelligence, identities of covert agents, and nuclear weapons design information.  But the Espionage Act statutes that have been used to prosecute most leak cases (18 USC 793, 794) do not mention “classified information” at all.  Rather, they apply to “national defense” information, an imprecise term that is not coextensive with “classified” information.

Even when “national defense” information that is clearly covered by the Act is disclosed to an unauthorized person, it does not necessarily follow that a crime has been committed.

Courts have interpreted the convoluted language of the Espionage Act to mean that only those with the requisite criminal intent will have violated the law.

In order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that it would be necessary for prosecutors “to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”

If White House officials disclosed classified information to reporters without authorization, it is doubtful that they intended to harm the United States or to aid a foreign government by doing so.

For these reasons, it is not true that “everyone agrees [this] is criminal conduct.”

New and updated reports from the Congressional Research Service include the following.

Mexican Migration to the United States: Policy and Trends, June 7, 2012

Mexico’s Drug Trafficking Organizations: Source and Scope of the Rising Violence, June 8, 2012

International Monetary Fund: Background and Issues for Congress, June 12, 2012

The Multilateral Debt Relief Initiative, June 11, 2012

The American Opportunity Tax Credit: Overview, Analysis, and Policy Options, June 11, 2012

Sexual Orientation and Gender Identity Discrimination in Employment: A Legal Analysis of the Employment Non-Discrimination Act (ENDA), June 8, 2012

Qatar: Background and U.S. Relations, June 6, 2012

Iran’s Nuclear Program: Tehran’s Compliance with International Obligations, June 8, 2012

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, June 12, 2012

The brewing controversy over leaks of classified information presumes that disclosures of classified information to unauthorized persons are always impermissible and undesirable.  But that presumption does not correspond precisely to the reality of government operations as they are conducted in practice.

The leaders of the House and Senate Intelligence Committees said last week that they would work “to ensure that criminal and administrative measures are taken each time sensitive information is improperly disclosed.”

In fact, however, classified information is frequently disclosed at the interface between national security agencies and the news media.  This is not necessarily a surreptitious or underhanded process.  Rather, though it is not often discussed, it is how the system normally functions.

“I refer to classified information a lot,” admitted then-Pentagon press secretary Kenneth Bacon at a November 2000 press briefing, when asked whether all of his statements from the podium were unclassified.

“There are certain questions that I can only answer by referring to classified information,” Mr. Bacon said at that time, adding that “I do this carefully, after consultation with our intelligence authorities, to make sure that I don’t answer questions in a way that causes any problems.”

This type of routine public discussion of classified information would have been obstructed if there were a law that categorically prohibited all unauthorized disclosures of classified information.  When Congress passed such a measure in 2000, Mr. Bacon and other executive branch officials quietly opposed it, and it was ultimately vetoed by President Clinton.

“There are certain types of questions that can only be answered with references to classified information,” Mr. Bacon told reporters following the presidential veto.  “One of the concerns that I and other spokespeople had [about the vetoed provision was that] it would prevent reference to classified information in answering everyday questions.”

Thus, the peculiar reality is that certain officials routinely take it upon themselves to discuss classified information with unauthorized persons.  They do so not to subvert policy but to explain it, to defend it and to execute it.  Though it may seem counterintuitive (and may in fact violate formal procedures), sometimes officials will even reveal currently classified information in order to enhance security.

Veteran aerospace journalist Craig Covault wrote an article last week in which he recalled once such incident in the 1970s.  At that time Mr. Covault was the space technology editor at Aviation Week, which was sometimes referred to as “Aviation Leak” because of the prevalence of (actual or purported) classified information in its pages.  In the course of his reporting, Mr. Covault learned some details about the KH-11 intelligence satellite shortly following its first launch in December 1976.  After he queried Air Force public affairs about the matter, he received an urgent summons to discuss it that afternoon with the Chairman of the Joint Chiefs of Staff.  As he described it:

“I showed up at the Pentagon at the appointed time and was taken up to the suite of offices used by Joint Chiefs Of Staff, then ushered into the office of Air Force General David Jones, a four star that had commanded the Strategic Air Command before becoming Chairman. My escort then departed and it was just Jones and myself left to discuss this issue.”

“He said he was familiar with my coverage then asked ‘what have you got?’ I explained in significant detail what sources had told me about the new reconnaissance system.”

“‘You are exactly right’ said Jones, ‘and now I am going to give you the reasons why we request that you not publish’.”

“He then cited specific examples where the Soviets were not taking any measures to conceal what they were doing as this first KH-11 approached and passed overhead. Unlike the KH-9s, they did not realize yet that this was a high resolution imaging spacecraft that could see people, and tell if they were carrying a lunchbox or not.”

“Jones said the Soviets were leaving missile silo doors open allowing us to ‘look right in’ and keeping their own new secret aircraft in the open.  If I published, it would ruin a major U. S. intelligence advantage. Jones had clearly demonstrated that no articles on the KH-11 should be written at that time so I agreed to his request to hold.”

“And on the way out he asked. ‘Now is there anything I can do for you?'”

“There was certainly no quid pro quo in my mind for this discussion, so his question was a surprise. But when he asked that, I told him I had not received any consistent backgrounders on the Soviet space program. ‘You will have them now,’ Gen. Jones said, and for the next two years I received classified backgrounders on the Soviet space program at the Defense Intelligence Agency.”

This is a remarkable anecdote in several respects.  Significantly, General Jones did not declassify the information about the KH-11 satellite, which remained highly classified.  Instead, he simply revealed it to Mr. Covault, an uncleared reporter, even though this was technically inconsistent with procedures in effect then and now.  Gen. Jones did not insist that Mr. Covault sign a non-disclosure agreement, or that he submit his work to some kind of prepublication review.  Rather, he simply argued the case for secrecy on the merits, and he succeeded in persuading Mr. Covault not to publish the information in question, to the presumptive benefit of national security.  (On another occasion described by Mr. Covault in the same article, he found the government’s request not to publish unpersuasive and disregarded it.)

Was General Jones guilty of “leaking” information to Mr. Covault?  Should the Chairman of the Joint Chiefs of Staff have been fired or sent to prison for his actions?  He certainly disclosed highly classified information to an unauthorized person, and he did so not once but repeatedly through the ongoing classified briefings that he arranged for Mr. Covault.

In other respects, though, this story is quite unremarkable.  Many national security reporters who write about classified government activities and seek a response from a government spokesman will have a similar (though perhaps less dramatic) tale to tell.

If members of Congress are determined to impose punitive measures “each time” that classified information is disclosed, then they will be confusing means (secrecy) and ends (security).  They run the risk of turning an already sluggish classification system into one that is so rigid as to be self-defeating.

There is no doubt such a thing as a wrongful and unlawful disclosure of classified information, but it seems that there are also wise, prudent and appropriate disclosures of classified information.  The actions of General Jones — or of Kenneth Bacon or innumerable others who have acknowledged or revealed classified information in similar circumstances — were not those of a criminal, and it would almost certainly be counterproductive to try to designate them categorically as crimes.

Some of the challenges involved in prosecuting a leak case were discussed in “For U.S. Inquiries on Leaks, a Difficult Road to Prosecution” by Charlie Savage, New York Times, June 10, 2012.

Members of the Senate Intelligence Committee are divided over whether there is a loophole in current law which would permit government agencies to monitor the communications of American citizens without any kind of warrant or other judicial authorization.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

It is unclear from the public record which of these conflicting positions is more likely to be correct.

Senators Wyden and Udall offered an amendment to explicitly prohibit searches of U.S. persons’ communications that are incidentally gathered in the course of FISA surveillance of foreign persons abroad unless there is a warrant or other authorization permitting surveillance of that specific person, but their amendment was voted down in Committee by 13-2.

“We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number,” Sens. Wyden and Udall wrote.  An Inspector General review is now underway to determine whether it is feasible to estimate the number, Sen. Feinstein noted.

See FAA Sunsets Extension Act of 2012, Senate Report 112-174, June 7, 2012.

The first three semi-annual reports on compliance with the procedures of Section 702 of the FISA Amendments Act were recently released in redacted form by the Office of the Director of National Intelligence.

Those reports generally found no evidence of “any intentional or willful attempts to violate or circumvent the requirements of the Act.”  On the other hand, “certain types of compliance incidents continue to occur, indicating the need for continued focus on measures to address underlying causes, including the potential need for additional measures.”

The integration of drones or unmanned aerial systems (UAS) into the National Airspace System (NAS) needs to be expedited, the Senate Armed Services Committee said in its report on the FY2013 defense authorization bill last week.

“While progress has been made in the last 5 years, the pace of development must be accelerated; greater cross-agency collaboration and resource sharing will contribute to that objective,” the Committee said.

A provision of the bill would encourage greater collaboration on drone integration among the Department of Defense, the Federal Aviation Administration, and NASA.

“Large number of UASs now deployed overseas may be returned to the United States as the conflict in Afghanistan and operations elsewhere wind down in coming years, and new UASs are under development.”

“Without the ability to operate freely and routinely in the NAS, UAS development and training– and ultimately operational capabilities– will be severely impacted,” the Committee report said.

Meanwhile, the House of Representatives yesterday approved an amendment to the 2013 Department of Homeland Security Appropriations bill that would prohibit DHS from acquiring or flying drones that have weapons onboard.

“None of the funds made available by this Act may be used for the purchase, operation, or maintenance of armed unmanned aerial vehicles,” says the provision sponsored by Rep. Rush Holt (D-NJ).

This prohibition, which is limited to DHS, is likely to be of no practical significance.  “Has there ever been any plan to buy armed drones by Homeland Security?” asked Rep. Norm Dicks on the House floor yesterday.  “No,” replied Rep. Robert Aderholt.

Also yesterday, Rep. Scott Austin (R-GA) introduced a bill (HR 5925) “to protect individual privacy against unwarranted governmental intrusion through the use of the unmanned aerial vehicles commonly called drones.”

The U.S. military is placing too much emphasis on defense against cyber attacks when it should be developing offensive cyber capabilities, according to Sen. John McCain.

“”I am very concerned that our strategy is too reliant on defensive measures in cyber space, and believe we need to develop the capability to go on the offense as well,” Sen. McCain wrote in remarks appended to the Senate Armed Services Committee report on the FY 2013 defense authorization bill.

“I believe that cyber warfare will be the key battlefield of the 21st century, and I am concerned about our ability to fight and win in this new domain.

“I authored a provision in the bill that requires the commander of U.S. Cyber Command to provide a strategy for the development and deployment of offensive cyber capabilities.”

“This provision to craft a comprehensive strategy should spur U.S. Cyber Command to develop this offensive capability effectively and at a reasonable cost to the taxpayer,” Sen. McCain wrote.

“The Department of Justice has not taken the initiative to prosecute leaks of national security secrets,” said Rep. Lamar Smith (R-TX) at a House Judiciary Committee hearing yesterday.

Considering that the Justice Department in the Obama Administration has initiated an unprecedented number of leak prosecutions, Rep. Smith had it exactly wrong.  But his remark illustrates the rampant confusion and the growing antagonism that surrounds the topic of leaks of classified information.

For some of the latest coverage, see:

“The ‘Leak’ Wars” by Josh Gerstein, Politico, June 8

“Toobin: Obama has been ‘very tough’ on leakers” by Ashley Hayes, CNN, June 7

“U.S. Attacks, Online and From the Air, Fuel Secrecy Debate” by Scott Shane, New York Times, June 7