The Government Accountability Office seems poised to play an increased role in intelligence oversight, despite a series of legislative setbacks and the Obama Administration’s threat of a veto earlier in the year.

The issue remains alive in the FY2010 Intelligence Authorization Act which was approved in the Senate on September 27 and which now appears likely to be enacted into law. The Act (in section 348) requires the Director of National Intelligence to prepare a directive on GAO access to intelligence community information — thereby setting the stage for a stable new role for the GAO in intelligence agency audits and reviews.

In a letter to Congress (reprinted in the record of the floor debate) withdrawing the threat of a veto, ODNI General Counsel Robert S. Litt stressed that the new directive would not imply any change in existing law or GAO authority. He added that the new directive would also conform with “relevant opinions of the Office of Legal Counsel.” However, the only OLC opinion on the subject is from 1988, and it argued that GAO access to intelligence information is “precluded” by law. It hardly seems likely that the new directive would affirm that view.

Instead, the required directive should be seen as analogous to the recently updated Pentagon directive that permitted GAO access to highly classified special access programs, suggested Sen. Dianne Feinstein, the Senate Intelligence Committee chair.

“The GAO has produced very useful studies” on defense intelligence matters, said Director of National Intelligence James R. Clapper Jr., at his July 20 confirmation hearing. “I think the GAO serves a useful purpose for us.”

When Wikileaks published tens of thousands of classified U.S. military records concerning the war in Afghanistan last July, did it commit a criminal act under U.S. law?  That was the question posed by a new report (pdf) from the Congressional Research Service.  In the end, the CRS report tentatively concludes that “although unlawful acquisition of information might be subject to criminal prosecution, the publication of that information remains protected.”

What’s more interesting than the report’s ultimate conclusion is its probing treatment of basic questions such as the scope of First Amendment protections, and the application of U.S. law to foreign jurisdictions.

Could the Espionage Act possibly be used against foreigners acting outside the United States?  Remarkably, the CRS report noted that it could.  “The only court that appears to have addressed the question” ruled in 1985 that a citizen of East Germany, Dr. Alfred Zehe, could be prosecuted under the Espionage Act and he was in fact convicted.

On the other hand, could it be that the First Amendment provides protection to foreign publishers?  There doesn’t seem to be a crisp yes or no answer to this question.  But the CRS report, written by national security law specialist Jennifer K. Elsea, turned up a 1964 district court decision which suggested that foreign publishers do enjoy First Amendment rights, if only because American readers have a right to the information that they publish.  “The essence of the First Amendment right to freedom of the press is not so much the right to print as it is the right to read,” that court ruled.  Therefore, “the rights of readers are not to be curtailed because of the geographical origin of printed materials.”

But what about the publication of materials that have been illegally acquired?  That seems to be an open question.  The CRS report cited a 1989 case (Florida Star v. BJF at footnote 8) where the U.S. Supreme Court said that the question of “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well” is “not definitively resolved.”

The comparatively short (14 page) CRS report, interesting as it is, is necessarily incomplete.

So, for example, it does not grapple in any detail with the legacy of the so-called AIPAC case. Although that case was ultimately dismissed in 2009, the court there upheld the constitutionality of the Espionage Act even when applied to private citizens who do not hold security clearances but who received and transmitted classified defense information without authorization.

Thus, Judge T.S. Ellis III ruled (pdf) in August 2006:  “Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.”

The CRS report also does not explicitly address 18 U.S.C. 793(g), which is the section of the Espionage Act that pertains to conspiracy.  Under this provision, the criminal offense would not be publication of the restricted records, but collusion with a source to violate the terms of the Espionage Act.  If Wikileaks has violated U.S. law — which remains uncertain — then its liability would likely be centered here.   (The possible relevance of 793g to the Wikileaks case was noted by the pseudonymous Equ Privat in the blog Finem Respice on August 1, and in private correspondence.)

A copy of the CRS report was obtained by Secrecy News.  See “Criminal Prohibitions on the Publication of Classified Defense Information,” Congressional Research Service, September 10, 2010.

The Office of the Director of National Intelligence last week released Intelligence Community Directive 701 (pdf), entitled “Security Policy Directive for Unauthorized Disclosures of Classified Information,” dated March 14, 2007.

The directive sets forth procedures and requirements for identifying and reporting suspected unauthorized disclosures of classified information that are likely to cause damage to national security interests.  These may include unauthorized disclosures to the media concerning U.S. intelligence activities, the loss or compromise of classified information storage media or equipment, the discovery of clandestine surveillance devices, or the compromise of the intelligence operations of foreign partners.  All such disclosures are to be reported to the DNI via the Special Security Center (SSC), a component of the ODNI.

The 2007 directive, signed by then-DNI J. Michael McConnell, seems measured and matter of fact by comparison with the 2002 directive (pdf) that it replaced, which was issued by then-DCI George J. Tenet.  The Tenet directive had a lot more adjectives (“strong”, “aggressive”) connoting forceful opposition to leaks, as well as a bit of chest-thumping (leaks “shall not be tolerated or condoned”).  For whatever reason, most of that colorful language was removed in the 2007 directive.  A copy of the 2002 Tenet DCI Directive 6/8, which was originally obtained by Wikileaks in 2008, is here.

Some new reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“The Freedom of Information Act and Nondisclosure Provisions in Other Federal Laws,” September 13, 2010.

“The Role of Trade Secrets in Innovation Policy,” August 31, 2010.

“Regulating Coal Combustion Waste Disposal: Issues for Congress,” September 21, 2010.

“The SPEECH Act: The Federal Response to ‘Libel Tourism’,” September 16.

“The Bush Tax Cuts and the Economy,” September 3, 2010.

The possible near-term declassification of historical intelligence satellite programs was examined by Dwayne Day in “A Paler Shade of Black,” The Space Review, September 20. The author also noted the pending Fundamental Classification Guidance Review that is supposed to purge obsolete classification requirements from the system.

An initiative led by Public Citizen to gain release of grand jury testimony presented in 1975 by former President Richard Nixon was discussed by John W. Dean in “Releasing Nixon’s Grand Jury Testimony: It Could Change History,” FindLaw, September 17.

The new Army Field Manual 3-28 addresses “Civil Support Operations” (pdf), referring to domestic military operations in support of civilian authorities within the United States.

The Department of Defense issued new guidance on “Use of Animals in DoD Programs” (pdf), DoD Instruction 3216.01, September 13.

In a September 15 report to the House on legislative actions to reduce waste, fraud and abuse, House Intelligence Committee chairman Silvestre Reyes cited House support for increasing the role of the Government Accountability Office in intelligence oversight, a measure opposed by the Obama Administration.

The Pentagon decided to purchase and destroy thousands of copies of Anthony Shaffer’s book Operation Dark Heart at a reported cost of nearly $50,000, while a censored version of the text is released in its place. But since numerous copies of the original version are already in the public domain, this move seems futile and counterproductive.

“Pakistan is in the midst of a catastrophic natural disaster that has precipitated a humanitarian crisis of major proportions,” a new report (pdf) from the Congressional Research Service observes.  The widespread flooding that has displaced millions of Pakistanis also represents a political crisis that “may undermine the already waning legitimacy of the civilian government” and a security crisis that has “already diverted Pakistani resources and focus away from its struggle with Islamic militants.”

Yet “despite the unprecedented scale of the flood disaster in Pakistan and more than 20 million people affected, aid donations from around the world have been much slower to materialize than other natural disasters such as the earthquake in Haiti,” the CRS said.

Possible reasons for the comparatively limited response include the gradual nature of the flooding, the paucity of press coverage, the limited death toll, Pakistan’s image problem among potential donors, the worldwide recession, and the fact that “the floods occurred in summer when many in western nations are on vacation.”

Under the best of circumstances, however, “International assistance after a catastrophe rarely, if ever, meets the need,” the CRS said.  Meanwhile, the United States government already leads international efforts in emergency relief to Pakistan with total FY2010 aid estimated at nearly $350 million.

The CRS report provides a detailed survey of what is known of the humanitarian, economic and political implications of the flood and the international response to date.

“The long-term effects of the flooding are likely to present daunting challenges to the country. The long-term effects are likely to manifest themselves in two ways that have significance to the United States and Congress. One aspect is the humanitarian toll that is likely to emerge from displaced people, disease, food security, and an economic decline. Another aspect is the strategic concerns that could result from a weakened government, and a dissatisfied and disenfranchised population.”

See “Flooding in Pakistan: Overview and Issues for Congress,” September 21, 2010.

Many charities and relief organizations offer opportunities to contribute to flood relief in Pakistan, including the American Jewish World Service, which highlights the Pakistan crisis on its home page.

An apparent spike in Islamist terrorist plots by American citizens and residents is examined in another new report (pdf) from the Congressional Research Service.

“This report describes homegrown violent jihadists and the plots and attacks that have occurred since 9/11.”  The report uses the term “jihadist” to refer to “radicalized individuals using Islam as an ideological and/or religious justification for their belief in the establishment of a global caliphate.”

The 128-page report describes the radicalization process and the responses of government and law enforcement agencies.  An appendix provides details about each post-9/11 incident of “homegrown jihadist terrorist plots and attacks” while a second appendix describes engagement and partnership activities by federal agencies with Muslim-American communities.  See “American Jihadist Terrorism: Combating a Complex Threat,” September 20, 2010.

Other new reports from CRS include the following (both pdf).

“The Mexican Economy After the Global Financial Crisis,” September 9, 2010.

“Deflation: Economic Significance, Current Risk, and Policy Responses,” August 30, 2010.

The indictment of former Los Alamos physicist Leo Mascheroni and his wife Marjorie Mascheroni on charges of attempting to sell classified nuclear weapons information to a foreign government includes a garbled account of nuclear weapons technology, potentially casting doubt on the credibility of the allegations against the couple, the New York Times disclosed.

In the indictment (at p. 8), Mascheroni supposedly described “a secret underground nuclear reactor for… enriching plutonium.”  But this makes no sense, since plutonium is not and cannot be enriched in a nuclear reactor.  The misstatement or misunderstanding of this matter enhances the possibility that other parts of the indictment are equally questionable.

The error in the indictment was reported in “Lawyers Look to Exploit a Scientific Error” by William J. Broad, New York Times, September 24.

The Defense Advanced Research Projects Agency has issued a new solicitation to industry and academia in an attempt “to discover new technologies to support declassification.”  Researchers are invited (pdf) to submit ideas for innovative approaches to declassification that will support the National Declassification Center in achieving its goals.

Can technology actually make a difference in declassification?  It seems clear that it can, at least within certain limits.

One thing that technology cannot do is to render a decision about exactly what should be classified or declassified.  That is a policy question which is dependent on a complex, rapidly changing factual environment (e.g. what related information is already available in the public domain) as well as a largely subjective threat assessment (e.g. what damage might conceivably result from disclosure and what benefits might ensue).  Such a decision does not easily lend itself to a technological formula.

Besides that, the executive order that governs the national security classification system is permissive, not mandatory;  it allows the classification of eligible information, but does not require it.  So any algorithm that dictates the continued classification of a certain category of information is likely to be wrong at least sometimes.

However, the declassification process is composed of several discrete steps, many or all of which could be facilitated by new technologies.  These steps include the collection and assembly of records for review, the circulation of records to reviewers as needed, the actual review and redaction process, and the distribution of the declassified records, among others — each of which might be streamlined and expedited by new technological measures.

So, for example, if it were possible to routinely incorporate the digitization of records into the declassification process, and to make the digitized records available online so that readers would not have to come to the National Archives or to the Presidential Libraries just to view them, that action alone would multiply the utility of the declassification process many times over.

But perhaps the strongest contribution that technology could make involves the future declassification of records that are being classified today.  Classified records that are being created now could be tagged in such a way as to expedite their ultimate declassification.  In fact, the goal should be to eliminate the need for declassification processing altogether, or as far as possible.  Instead, most classified records should literally be self-declassifying.  Their classification controls should expire and be automatically canceled.  In principle, this ought to be readily achievable.

The Public Interest Declassification Board will hold a public session on the potential role of new technology in declassification on Thursday, September 23 at the National Archives.  The agenda is here (pdf).

The new DARPA solicitation was reported in “Darpa Wants You To Build An Anti-Secrecy App” by Spencer Ackerman in Wired Danger Room, September 14.

The theory and practice of national security classification policy in the late cold war years are exemplified and explored in back issues of Classification Management, the journal of the National Classification Management Society (NCMS), which is the professional society of classification officers and other security professionals.  Several back issues of the journal are now available online.

“Security Classification is the black sheep of the Information Science family,” wrote C.C. Carnes in the first issue (pdf) of Classification Management in 1965 (p.15).  “Everyone else is trying to expedite the flow of information.  People working in the field of Security Classification are trying to impede, control, and limit the flow of information.  However, we should not be blamed for this apparent perversity.  It serves a purpose.”

That purpose is discussed in depth and detail and with notable candor.

“LIMDIS controls came into existence largely to replace bogus security markings such as SNTK, MK, and CNTK,” explained Raymond P. Schmidt of the Navy (NCMS Viewpoints 1992 [pdf], at p. 34).

While much of the security policy content of the journals is now obsolete, they retain  historical, sociological and perhaps even anthropological interest.

The first couple of issues of the journal comprised “virtually the entire body of published information on the professional aspects of classification management” at that time, wrote NCMS President (and ACDA official) Richard L. Durham in 1966 (Vol. 2, p. 4).

A wide array of security policy issues were addressed over the years in Classification Management, including the dissemination of scientific and technological information, the conduct of classified research and development on university campuses, patent secrecy, and the unauthorized disclosure of classified information.

In the 1972 edition, a panel of reporters and government officials discussed the impact and meaning of the Pentagon Papers for classification management and freedom of the press (Vol. 8, pp. 64-75).

In 1990, Steven Garfinkel, the former director of the Information Security Oversight Office, memorably discussed “not the highlights, not the triumphs, but some of the low points” of his career as ISOO director up to that point.  “This is my tenth anniversary speech.  Ushers, please bar the doors.” (Vol. 26, pp.6-9).

The National Classification Management Society kindly granted permission to post several back issues of Classification Management and NCMS Viewpoints on the Federation of American Scientists website here.

A new volume of the State Department’s official Foreign Relations of the United States (FRUS) series on the war in Vietnam, published this month, embodies both the strengths and the weaknesses of the government document declassification program.

The new FRUS volume presents an exceptionally vivid and interesting account of the Nixon Administration’s conduct of the war, beginning with the aftermath of the invasion of Cambodia.  It also “documents President Nixon’s penchant for secret operations and covert warfare.”  Several such secret operations “are documented in some detail to demonstrate the role of covert actions in support of overt political and military operations.”  See “Foreign Relations of the United States, 1969-1976, Volume VII, Vietnam, July 1970-January 1972,” published September 8, 2010.

While the 1100 page volume (pdf) provides rich testimony to the value of the declassification process, it also highlights its surprising limitations.

For one thing, the process is painfully slow.  Declassification review of this volume took four years, the Preface states, from 2006 to 2010.  At that glacial rate, the State Department will never fulfill its statutory obligation to publish the record of U.S. foreign policy no later than 30 years after the fact.

What’s worse is that U.S. government agencies continue to use an obsolete template for making declassification decisions.  So while various covert actions are “documented in some detail,” the amount of money spent on those same covert actions is scrupulously redacted at more than a dozen points with the parenthetical notation “dollar amount not declassified” — as if the publication of these budget figures could possibly have any bearing on national security today.

Adding to the evident confusion, the dollar figures for covert action were nevertheless published in one of the documents (document 202 at page 617), which notes that “Funds in the amount of $235,000 for FY 1971 and $228,000 for FY 1972 were approved [for certain covert actions].”

Was this a declassification “error”?  A publishing oversight?  It’s not clear.

Susan Weetman, the General Editor of the FRUS series, said that the publication decisions on covert actions were determined by the so-called “High Level Panel” (HLP) which is comprised of senior representatives of the State Department, CIA and National Security Council.

“While the release of some dollar amounts and the excision of others may appear inconsistent, it has been the policy of the HLP to approve the declassification of the overall budget figure for a covert action (occasionally broken out by fiscal year), but not release the specifics of how the money was spent,” Ms. Weetman told Secrecy News.

In the present case, however, there is an unusual amount of detail about “how the money was spent.”  It’s just the dollar figures that (in most cases) have been withheld.

The release of this FRUS volume, along with another volume on Vietnam published September 16, was timed to coincide with an upcoming State Department Office of the Historian conference on “The American Experience in Southeast Asia, 1946-1975”.

One of the recurring themes in the Vietnam covert action volume is the prevalence of leaks of classified information, and the need to take drastic action to combat them.

“You will see leaks all over town in the next few weeks on this issue,” Henry Kissinger told a group of Congressmen at a March 23, 1971 meeting “because the intelligence community is like a hysterical group of Talmudic scholars doing an exegesis of abstruse passages.  If any of you are on an intelligence subcommittee, you might find this a good reason to cut the budget for the intelligence agencies,” Kissinger suggested (at page 466).

A former Los Alamos nuclear weapons scientist, Pedro Leonardo Mascheroni, and his wife, Marjorie Mascheroni, were charged with conspiracy to communicate classified nuclear weapons information with the intent to injure the United States and conspiracy to develop an illict atomic bomb after they allegedly offered to provide assistance to a supposed Venezuelan nuclear weapons program.

“The conduct alleged in this indictment is serious and should serve as a warning to anyone who would consider compromising our nation’s nuclear secrets for profit,” said Assistant Attorney General Kris in a September 17 news release.

The underlying story is so twisted and psychologically fraught that it may never be completely clarified.  Mascheroni has been a fervent advocate of his own concept of inertial confinement fusion, while relentlessly criticizing the existing ICF program as misconceived and destined to fail.  He has tangled repeatedly with security officials over clearance and disclosure issues, but he has also found some influential supporters, including former Director of Central Intelligence R. James Woolsey, who provided him with legal representation on a pro bono basis.

According to the indictment (pdf), Mascheroni only thought of selling nuclear secrets (to an FBI agent he thought was a Venezuelan official) because he became increasingly frustrated with the United States government’s unresponsiveness to his claims and concerns.  The alleged turning point, the indictment says, came in 2007, when he attempted unsuccessfully to instigate a congressional hearing on “DOE-UC mismanagement of the nuclear stockpile, weapons programs, and national security.”  A copy of his 50-page proposal to Congress, of characteristic length and turgidity, is here (pdf).

“If those guys, the American government, doesn’t give me this,” he supposedly said, referring to the desired congressional hearing, “you know, I, I, the American government is going to be my enemy really.”

“The public is reminded that an indictment contains allegations only and that every defendant is presumed innocent unless and until proven guilty,” the Justice Department properly noted in its news release on the case.

A 1995 Los Alamos report “edited by Marjorie Mascheroni” on environmental contamination at Los Alamos involving high-energy explosives is available here (pdf).