Reporting on intelligence can be a challenge even for an experienced national security reporter, observed Dana Priest in her book “Top Secret America” (co-authored with William Arkin).

“Having traveled the world with the military, I just didn’t understand why I was failing to progress with [reporting on] the CIA,” she wrote (p. 19).  “Maybe I wasn’t using the right terminology or phrases, or hadn’t found the right people to ask.  But the obvious answer was made clear to me one day when [CIA spokesman William] Harlow finally got tired of the badgering and let me have it, explaining in a very loud voice why, for the umpteenth time, he had no comment to my questions.  ‘This is a goddamn secret organization!  That’s why!'”

The notion that “it’s secret because it’s secret” actually goes a long way towards explaining the often reflexive and indiscriminate practice of national security classification.

It therefore stands to reason, says a new report from the Brennan Center for Justice, that if classifiers were obliged to justify their classification actions with more clarity and precision, they would classify less.  Among other steps, the report recommends that each classification action be accompanied by a concise written explanation.  This would be one way of shifting incentives and burdens in favor of more thoughtful and more limited classification, the authors say.  They sensibly call for a pilot project to test and refine their proposal on a limited scale.  See “Reducing Overclassification Through Accountability” by Elizabeth Goitein and David M. Shapiro, Brennan Center for Justice, October 5.

However, it is not self-evident that this recommendation would have the desired effect.  There are probably very few classifiers who consciously abuse classification authority to withhold information that they know should not be classified.  Nor is it insurmountably difficult for a government official to devise a rationale even for a questionable classification decision, as many FOIA litigators can attest.  If classifiers are required to provide a written justification for their view, no matter how eccentric or ill-considered it may be, they will find a way to do so.

A better approach would seem to be to diminish the effect of individual and agency biases towards secrecy by submitting classification decisions to a broad consensual review.  (Since there are no purely objective standards to guide classification policy, a consensus of independent views may be the best one can hope for.)  A procedure of this sort is supposed to be followed in the ongoing Fundamental Classification Guidance Review, though it is unclear how broad a range of perspectives is actually being brought to bear.

Besides their several proposals for change, the Brennan Center authors present a lucid recapitulation of the case against unfettered secrecy that anyone can read with benefit.  Their report contributes another voice of urgency to the mounting demand for reform of national security secrecy.

The need for secrecy reform was also vividly illustrated by the Obama Administration’s unwillingness to candidly discuss the killing of Anwar al-Awlaki in Yemen last week, or even to present the legal justification for it.  See “A Closed-Mouth Policy Even on Open Secrets” by Scott Shane, New York Times, October 5.

Mahmoud M. Hegab was a well-regarded budget analyst at the National Geospatial-Intelligence Agency (NGA) until last year when his Top Secret/SCI security clearance was abruptly revoked.

Among the issues precipitating his loss of clearance were the fact that his newlywed wife had graduated from an Islamic school, that she had participated in an anti-war protest, and that she had engaged in pro-Palestinian political activity while a student at George Mason University.

This week Mr. Hegab filed a lawsuit against the NGA seeking reinstatement of his clearance.

“The revocation of plaintiff’s security clearance and access to classified information by NGA was based solely on plaintiff’s wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization,” wrote Sheldon I. Cohen, Mr. Hegab’s attorney.  None of her actions or affiliations posed any national security concern, the lawsuit said.

There is no constitutional right to be granted a security clearance.  However, Mr. Hegab does have “a property interest in his continued employment in the position he previously held at NGA,” wrote Mr. Cohen.  “NGA by its actions has deprived plaintiff of his property interest in his continued employment with the federal government in violations of plaintiff’s right to due process under the First, Fifth and Ninth amendments to the United States Constitution.”

The new complaint presented an extensive account of Mr. Hegab’s experience along with a detailed rebuttal of the allegations against him and his wife.  The NGA’s response to the complaint will be posted in Secrecy News when it is filed in a month or so.

“Muslims have replaced Jews as targets of discrimination” in the security clearance system, according to a report in Moment magazine, a Jewish monthly.  See “Anti-Muslim Discrimination in Post 9/11 America,” April 2011.

Former CIA officer Jeffrey Sterling, who is accused of leaking classified information to reporter James Risen, should not be permitted to argue at trial later this month that he was unfairly singled out for prosecution, government attorneys urged in an October 4 motion.

“The Court should bar the defendant [Sterling] from presenting any evidence, argument or comments of selective prosecution or that everybody leaks classified information,” the prosecution motion said.

Further, the motion said, Sterling should not be allowed to introduce evidence “that everyone at the CIA or on Capitol Hill leaks information” or evidence “regarding specific examples of the leaking of classified information, whether prosecuted or not.”

If such evidence were to be introduced at trial, prosecutors said, then “Fights over the classification levels of the information, the potential damage caused to the United States, and a host of other issues would consume and overwhelm the real issues in this case.”

Among several other categories of defense evidence or argument that prosecutors asked the Court to rule out of order were claims that the alleged leaks were justified or necessary, unsupported defense allegations of an alternative perpetrator of the leaks, and arguments that CIA has conspired to implicate the defendant.

Prosecutors said that case law does not allow the presentation of “arguments that leaks are good or necessary, or that [Sterling] was a whistleblower, thereby justifying his conduct or negating his criminal intent.”

And they said “There is absolutely no evidence that the CIA was out to get the defendant, or that the CIA orchestrated some grand conspiracy to blame the defendant for the leaks to Risen.”

In a separate motion yesterday, prosecutors petitioned the court to admit into evidence several categories of statements.  These included CIA records of phone calls made by James Risen to CIA public affairs, talking points presented by Condoleezza Rice at a White House meeting with Risen and Jill Abramson of the New York Times, and “excited utterances” made by an individual identified as Human Asset No. 1 who believed his identity might have been compromised by publication of information in Mr. Risen’s book.

The trial of Jeffrey Sterling is scheduled to begin on October 17.

“The Soldier’s Guide,” which is something like the U.S. Army equivalent of the Boy Scout Handbook, was updated last month.  The 436 page Guide is filled with instruction and lore about life in the U.S. Army.  It covers Army history, traditions, and professional development.

In places the text limps.  Thus, “The Army’s core values are loyalty, duty, respect, selfless service, honor, integrity and personal courage. They form the acronym LDRSHIP.”  In other places, it is moving and profound.  The Guide explains that when you are in the Army, your first duty is not to the Army, but to the U.S. Constitution.  “Put [your] obligations in correct order: the Constitution, the Army, the unit, and finally, self.”  See “The Soldier’s Guide,” Field Manual, 7-21.13, February 2004, with Change 1, September 20, 2011.

“Law and Order Operations” is the topic of another recently updated Army manual.  In the past, this term referred primarily to law enforcement activities at military facilities.  But its scope has now expanded.  “The applications of L&O [law and order] operations and the requirements for Army LE [law enforcement] personnel to conduct these operations have grown tremendously as nation building and protracted stability operations have demonstrated the need for civil security and civil control as critical lines of effort within the larger effort to transfer authority to a secure and stable HN [host nation] government.” See “Law and Order Operations,” ATTP 3-39.10, June 20, 2011.

This week the Army published an updated regulation on “Military Justice.”  The 176-page regulation presents rules and procedures for administering justice in the military.  It addresses a variety of particular offenses, including “subversion, treason, domestic terrorism, and known or suspected unauthorized disclosure of classified information or material.”  See “Military Justice,” Army Regulation 27-10, October 3, 2011.

The Department of Defense this year cancelled 82 security classification guides as a result of the ongoing Fundamental Classification Guidance Review, a focused effort to combat overclassification of national security information.  The cancelled guides can no longer be used to authorize classification of DoD information.

The Fundamental Classification Guidance Review, which must be performed by all classifying agencies under President Obama’s executive order 13526 (sect. 1.9), is intended to ensure that classification guidance reflects current circumstances, and is supposed to eliminate obsolete or unnecessary classification requirements.  Remarkably, it seems to be having a measurable effect.

The cancellation of the 82 DoD classification guides, which are compilations of detailed instructions used for classifying information on various topics, will not make a huge dent in Pentagon secrecy.  The defunct guides amount to only a little more than 4% of the total number of DoD classification guides (of which there are 1,878 extant).  But their withdrawal appears to represent a real, non-rhetorical reduction in the permissible scope of national security secrecy.

In fact, the 82 cancelled guides (which are mostly from the Navy) constitute more than 10% of the 648 DoD classification guides that had been reviewed as of last July.  So by the time that a review of all of the guides is completed, which must be done by June 2012, there is reason to expect the elimination of dozens of additional DoD classification guides.

These data were reported by the Department of Defense in a July 29, 2011 Interim Status Report on the Fundamental Classification Guidance Review (FCGR) that was obtained by Secrecy News under the Freedom of Information Act.

The DoD Interim Report sought to downplay expectations about the final outcome of the Review.  DoD said that most of its classification guides had already been reviewed during the past three years “and declared accurate… by the responsible Original Classification Authority.”  Consequently, the Report said, “within the ongoing FCGR, we have seen few changes or developments impacting actual topics meriting classification.”

But this worrisome remark suggests that there has been a misunderstanding of the Review process by some Pentagon officials.  The question posed by the Fundamental Review is not whether the original classifier believes that a prior classification decision is still valid;  if he or she does not, the information should no longer be classified by any account.

Rather, the Review is supposed to reflect a judgment by subject matter experts other than the original classifier (involving “the broadest possible range of perspectives,” as the ISOO implementing directive says) that the classification action makes continued sense — which is a higher, more demanding standard to meet.  It is not clear from the Interim Report whether DoD is incorporating the views of internal or external subject matter experts in its Review.

“It is essential that we fulfill this [Fundamental Review] requirement in a way that shows responsible stewardship of our resources,” wrote Under Secretary of Defense Michael G. Vickers in a May 19 tasking memo.  “We cannot afford to expend resources on protecting information that no longer meets the criteria for classification.”

In a related development of potentially great significance, the DoD Interim Report mentions in passing that “The DoD Inspector General is evaluating the nomination of the [Fundamental Review] to be identified as an IG Special Interest Item (SII).”  Any such involvement by the Inspector General could bring valuable depth and perspective to the Fundamental Review, and add to its effectiveness in stripping away unwarranted secrecy.

Meanwhile, the Office of the Director of National Intelligence reported that it had initiated a Fundamental Review of 8 of its 22 security classification guides so far, and that 1 of them had been eliminated “because the program it supported was terminated.”  The ODNI Interim Report, by Information Management Director John F. Hackett, also described various ODNI classification management initiatives to ensure compliance with the executive order.

The FCGR “is not intended to be a superficial review but a thoughtful, methodical process using the experience and knowledge of a variety of subject matter experts,” wrote Stephanie L. O’Sullivan, Principal Deputy Director of National Intelligence, in a May 26 memo to intelligence agencies.

The leading Chinese think tank known as CICIR, or China Institutes of Contemporary International Relations, “is affiliated with China’s top intelligence agency,” according to a profile (pdf) prepared by the DNI Open Source Center (OSC), “although this fact is rarely acknowledged in PRC media.”

The OSC report presents a detailed description of the structure, leadership and publications of the CICIR, which “has been repeatedly named one of China’s top think tanks based, at least in part, on its perceived influence within the PRC government.” See “Profile of MSS-Affiliated PRC Foreign Policy Think Tank CICIR,” Open Source Center, 34 pages, August 25, 2011.

The OSC profile was first reported in “Chinese Think Tank Also Serves as Spy Arm” by Bill Gertz, Washington Times, September 28.

The Obama Administration’s commitment to open government does not extend to Open Source Center analyses like the CICIR report, even when they are unclassified and non-copyrighted.  Americans who wish to read such government publications anyway must therefore rely on unauthorized disclosures.

Recent moves by Russia to reform its military were assessed by the Congressional Research Service in a new report (pdf).

“This report… provides basic information about the [Russian] military’s leadership and structure, the arms industry and efforts to modernize weaponry (including through foreign arms technology transfers), power projection efforts, and the military budget.”

The CRS report on “Russian Military Reform and Defense Policy” is dated August 24, 2011, though it was actually published September 20.

Under congressional secrecy policy, CRS is not permitted to make its reports directly available to the public.

Led by the United States, arms-exporting nations are competing ever more intensely to win lucrative sales contracts in a shrinking global marketplace, according to a new report (pdf) from the Congressional Research Service.

“Worldwide weapons sales declined generally in 2010 in response to the constraints created by the tenuous state of the global economy,” the report said.  The value of all arms transfer agreements with developing nations declined from $49.8 billion in 2009 to over $30.7 billion in 2010.  At the same time, however, the value of all arms deliveries to developing nations was nearly $21.9 billion, which is “the highest total in these deliveries values since 2006.”  See “Conventional Arms Transfers to Developing Nations, 2003-2010” by Richard F. Grimmett, Congressional Research Service, September 22, 2011.

Yet “as new arms sales have become more difficult to conclude since the global recession began, competition among sellers has become increasingly intense,” the report said.

“A number of weapons-exporting nations are focusing not only on the clients with whom they have held historic competitive advantages, due to well-established military-support relationships, but also on potential new clients in countries and regions where they have not been traditional arms suppliers.”

Meanwhile, “[D]eveloping nations have been leveraging their attractiveness as clients by demanding greater cost offsetting elements in their arms contracts, as well as transfer of more advanced technology and provisions for domestic production options,” the report said.

The United States dominates the global arms market both in sales agreements and in deliveries, according to the CRS report, which was first reported in the New York Times on September 24.

The annual CRS reports prepared by Mr. Grimmett are authoritative compilations of official data on arms transfers, based on privileged access by CRS to government records.  As such, they may have enduring reference value for researchers in the field (despite the fact that the reports do not include clandestine or covert transfers).   A collection of all CRS annual reports on conventional arms transfers dating back to 1982 is available on the Federation of American Scientists website here.  Additional background is available from the FAS Arms Sales Monitoring Project.

The Brennan Center for Justice will sponsor a panel discussion October 5 at the National Press Club in Washington DC on overclassification and “Curbing Needless Secrecy” to accompany the release of a new report on the subject.  Participants include former Rep. Christopher Shays, former ISOO director J. William Leonard, former NRO director and chair of the Public Interest Declassification Board Martin C. Faga, and Elizabeth Goitein of the Brennan Center.

Updated below

When the Central Intelligence Agency established a Center on Climate Change and National Security in 2009, it drew fierce opposition from congressional Republicans who disputed the need for an intelligence initiative on this topic.  But now there is a different, and possibly better, reason to doubt the value of the Center:  It has adopted an extreme view of classification policy which holds that everything the Center does is a national security secret.

Last week, the CIA categorically denied (pdf) a request under the Freedom of Information Act for a copy of any Center studies or reports concerning the impacts of global warming.

“We completed a thorough search for records responsive to your request and located material that we determined is currently and properly classified and must be denied in its entirety…,” wrote CIA’s Susan Viscuso to requester Jeffrey Richelson, an intelligence historian affiliated with the National Security Archive.

With some effort, one can imagine records related to climate change that would be properly classified.  Such records might, for example, include information that was derived from classified collection methods or sources that could be compromised by their disclosure.  Or perhaps such records might present analysis reflecting imminent threats to national security that would be exacerbated rather than corrected by publicizing them.

But that’s not what CIA said.  Rather, it said that all of the Center’s work is classified and there is not even a single study, or a single passage in a single study, that could be released without damage to national security.  That’s a familiar song, and it became tiresome long ago.

But in this case, it is more than an annoyance.  The CIA response indicates a fundamental lack of discernment that calls into question the integrity of the Center on Climate Change, if not the Agency as a whole.  If the CIA really thinks (or pretends to think) that every document produced by the Center constitutes a potential threat to national security, who can expect the Center to say anything intelligent or useful about climate change?  Security robots cannot help us navigate the environmental challenges ahead.  Better to allocate the scarce resources to others who can.

Meanwhile, access by scientists to classified military intelligence data on the environment has actually been improving lately, reports Geoff Brumfiel in the latest edition of Nature (“Military surveillance data: Shared intelligence,” 21 September 2011, sub. req’d).  Among other things, the Clinton-Gore era group of cleared scientists known as MEDEA (Measurements of Earth Data for Environmental Analysis) was reconvened in 2008 at congressional request.

A Federation of American Scientists proposal to expand public access to unclassified open source intelligence products (“Open Up Open Source Intelligence,” Secrecy News, August 24) did not find favor with the White House.  Nothing like it was included in the new U.S. National Action Plan (pdf) for the Open Government Partnership, which mostly elaborates and restates previous commitments.

Update: The National Intelligence Council has published a collection of commissioned papers on “The Impact of Climate Change to 2030” which do not, however, “reflect official U.S. Government positions.”

Reports on secrecy-related topics from the Congressional Research Service that are newly updated (but otherwise not new) include these (all pdf).

Criminal Prohibitions on the Publication of Classified Defense Information, September 8, 2011

Protection of Classified Information by Congress: Practices and Proposals, August 31, 2011

The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation, August 16, 2011

Newly updated CRS reports on other topics include these.

Intelligence Issues for Congress, September 14, 2011

The Palestinians: Background and U.S. Relations, August 30, 2011

U.S. Foreign Aid to the Palestinians, August 29, 2011

 

The number of persons who held security clearances for access to classified information last year exceeded 4.2 million — far more than previously estimated — according to a new intelligence community report to Congress (pdf).

The report, which was required by the FY2010 intelligence authorization act, provides the first precise tally of clearances held by federal employees and contractors that has ever been produced.  The total figure as of last October 1 was 4,266,091 cleared persons. See “Report on Security Clearance Determinations for Fiscal Year 2010,” Office of the Director of National Intelligence, September 2011.

In 2009, the Government Accountability Office had told Congress that about 2.4 million people held clearances “excluding some of those with clearances who work in areas of national intelligence.”  (“More Than 2.4 Million Hold Security Clearances,” Secrecy News, July 29, 2009).  But even with a generous allowance for hundreds of thousands of additional intelligence personnel, that estimate somehow missed more than a million clearances.

Likewise, one of the many startling findings in the 2010 Washington Post series (and 2011 book) “Top Secret America” by Dana Priest and William M. Arkin, was that “An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.”

But remarkably, that too was a significant underestimate, according to the new report.  In actual fact, as of October 2010 there were 1,419,051 federal employees and contractors holding Top Secret clearances.

As high as the newly determined total number of clearances is, it may not be the highest number ever.  In the last decade of the cold war, a comparable or greater number of persons seems to have had security clearances.  In those years the size of the uniformed military was much larger than today, and a large fraction of its members were routinely granted clearances.  Thus, as of 1983, there were approximately 4.2 million clearances, according to 1985 testimony (pdf) from the GAO.  But that was an estimate, not a measurement, and the actual number might have been higher (or lower).  By 1993, the post-cold war number had declined to around 3.2 million clearances, according to another GAO report (pdf) from 1995.

The unexpectedly large number of security clearances today can presumably be attributed to several related factors:  the surge in military and intelligence spending over the past decade, increased government reliance on cleared contractors, and intensive classification activity that continues today.