“Pakistan — a key U.S. ally in global efforts to combat Islamist militancy — is in urgent need of an estimated $4 billion in capital to avoid defaulting on its sovereign debt.”  See “Pakistan’s Capital Crisis: Implications for U.S. Policy” (pdf), Congressional Research Service, November 7, 2008.

A new Pentagon manual (pdf) issued by Under Secretary of Defense (Intelligence) James R. Clapper prescribes the implementation of the Department of Defense operations security (OPSEC) program.  OPSEC is the process of identifying sensitive information that could be exposed to hostile detection in the course of military operations, and taking steps to protect such information.  See “DoD Operations Security (OPSEC) Program Manual,” DoD Manual 5205.02M, November 3, 2008.

The state of national preparedness for a bioterrorist incident was examined last year in a newly published congressional hearing, which includes supplementary questions and answers for the record.  See “Six Years After Anthrax: Are We Better Prepared to Respond to Bioterrorism?”, Senate Committee on Homeland Security and Governmental Affairs, October 23, 2007.

The possibilities for significant changes in government secrecy policy are starting to attract official attention as the presidential transition process begins.

“I know things are going to change,” one executive branch official with national security classification responsibility said this morning.  “The folks that are inbound have a keen appreciation for the kind of things that need to occur,” the official said.

He noted the role of John Podesta as leader of the transition team.  Mr. Podesta, now at the Center for American Progress (where he said he will return after the transition), is a former Clinton White House chief of staff.  He played an influential part in the development of the Clinton executive order on classification policy, which generally favored openness and dramatically increased declassification of historical records.

Mr. Podesta testified (pdf) on government secrecy policy before the Senate Judiciary Committee as recently as last September 16, where he presented his own agenda for secrecy reform.

His analysis was acute and his critique was eloquent.  But many of his recommendations pointed backwards, towards undoing what the Bush Administration has done, rather than to a qualitatively new information security policy.

So, for example, the very first “key recommendation” in Mr. Podesta’s testimony was that “The next president should rewrite [President Bush’s] Executive Order 13292 to reinstate the provisions of [President Clinton’s] Executive Order 12958 that establish a presumption against classification in cases of significant doubt.”

But restoring a “presumption against classification in cases of significant doubt” will not accomplish much since executive branch classification officers do not experience significant doubt.  There is no record of a single classification decision that was determined by the Clinton-era [and Carter-era] injunction not to classify in cases of doubt.  Therefore adding such language back to the executive order on classification is not imperative.

A better starting point would be a systematic review of all of the thousands of agency classification guides, geared towards eliminating obsolete or unnecessary classification instructions.  Classification guides are the secrecy system’s “software.”  Revising and updating them would be likely to pay immediate dividends in reduced classification.

Beyond that, there may be a once in a generation opportunity to fundamentally rethink the structure of the national security classification system, and to conceive of something altogether new, different, and better.  What that might be remains to be discovered and articulated.

There is an old story of a Russian soldier who saved the life of the czar and was told that as a reward he could have anything he wanted.  “Please change my commanding officer!” he begged.

In the coming weeks and months, it should be possible to do a lot better than that.

The National Reconnaissance Office has released a heavily redacted version of the Fiscal Year 2008 Congressional Budget Justification Book for the National Reconnaissance Program.  It provides a few intriguing glimpses of the intelligence agency in transition.

“Ten years ago, a user might be satisfied with an image or a signal intercept; now users demand fused, multidiscipline, multi-phenomenology information tailored to a specific location or area of interest,” wrote Donald M. Kerr, then-director of the NRO.

“The mission of the NRO remains the same– the research, development, acquisition, launch and operation of overhead reconnaissance systems and other missions as directed to solve intelligence problems,” the budget document stated. “However, the focus of the NRO and the way it executes the mission will change.  NRO’s priority for the future is to increase the value of the information its systems can deliver, chiefly through a variety of improvements in ground systems for rapid, adaptive, multisensor tasking, processing, exploitation, cross-cueing, and dissemination.”

Development, acquisition and operation of intelligence satellites are still the main business of the NRO.

“Careful stewardship of limited budget resources is increasingly critical as the NRO undertakes the daunting task of designing and building the next generation of satellite systems,” the document said.

“In general, IMINT [imagery intelligence] acquisition programs meet established performance requirements but are less successful in achieving cost and schedule goals,” the document acknowledged.

The NRO budget book was released in redacted (declassified) form in response to a Freedom of Information Act request from the Federation of American Scientists.

On 4 November 2008, Mozambique ratified the Comprehensive Nuclear Test Ban Treaty (CTBT) which bans all nuclear explosions on Earth, the CTBT Organization announced in a news release.

The Treaty has now been ratified by 146 nations, and signed by 180.

“To enter into force, however, the Treaty must be signed and ratified by the 44 States listed in Annex 2 to the Treaty,” the CTBT Organization explained.  “These States participated in the negotiations of the Treaty in 1996 and possessed nuclear power or research reactors at the time. Thirty-five of these States have ratified the Treaty, including … France, Russian Federation and the United Kingdom. The nine remaining States are China, Democratic People’s Republic of Korea, Egypt, India, Indonesia, Iran, Israel, Pakistan and the United States.”

Background on the Treaty from the Congressional Research Service is available here (pdf).

The national security classification system at the Department of Homeland Security is “broken,” and one of the top ten challenges facing the next Secretary of Homeland Security is to fix it, according to a recent report (pdf) from the Homeland Security Advisory Council.

“The federal security clearance process and classification system is broken and is a barrier (and often an excuse) for not sharing pertinent information with homeland security partners,” the report stated.  “The next Secretary should direct a concerted effort to resolve these clearance and classification issues.”

See “Top Ten Challenges Facing the Next Secretary of Homeland Security,” Homeland Security Advisory Council, September 11, 2008 (Key Challenge 3, at page 8).

The Homeland Security Advisory Council is chaired by William H. Webster, the former Director of Central Intelligence and FBI Director.  The Vice Chair is James R. Schlesinger, the former Secretary of Energy and Secretary of Defense.

Not everyone shares the Council’s dismal view of DHS classification and clearance policy.

“We try to write at the lowest classification level possible,” said Charles E. Allen, the DHS Under Secretary for Intelligence Analysis at a February 26, 2008 hearing before the House Homeland Security Committee.  “It is amazing what we can get down to ‘official use’,” he said. “I am rather amazed at what we have out there on a day-to-day basis.”

As for security clearances, Mr. Allen said, “I am quite a tiger at pushing clearances and getting people cleared.”

But others concur with the Council assessment.

“On the classification issue, there is just no question that the system is broken, fundamentally broken,” said Stephen E. Flynn of the Council on Foreign Relations at a May 15, 2008 hearing.  “The clearance process is completely overwhelmed. Because things get routinely overclassified, they can’t get to the people who need it.”

Unfortunately, the new Homeland Security Advisory Council report is not a significant addition to the literature on classification reform because it does not clearly articulate the problem, nor does it offer a specific solution.  “Fix the security clearance and classification process” is not in itself actionable advice.

One practical proposal for advancing classification reform in the next Administration was discussed in “Overcoming Overclassification,” Secrecy News, September 16, 2008.

When an Army aircraft is flying in a zone where detonation of a nuclear explosive is anticipated, one of the pilots would be well advised to wear a patch over one eye to protect against flash blindness from the nuclear burst.

“This practice allows vision in this eye in case blindness occurs to the unprotected eye and the other pilot.”

That peculiar bit of practical wisdom was provided in a 2007 U.S. Army manual for special operations forces (pdf) that are operating in nuclear and other WMD environments.

“The United States Special Operations Command combatant commander recognizes the probability of operating in a CBRN [chemical, biological, radiological and nuclear] environment exists; therefore, SOF [special operations forces] must specifically organize, train, and equip to be successful,” the manual explains.

“The term CBRN environment includes the deliberate, accidental employment, or threat of CBRN weapons and attacks with CBRN or toxic industrial materials (TIMs).”

A copy of the Army manual was obtained by Secrecy News.

See “Army Special Operations Forces Chemical, Biological, Radiological and Nuclear Operations,” Field Manual 3-05.132, August 2007.

Information that would reveal a violation of the law may be properly classified as long as it is not deliberately classified for the purpose of concealing the violation, a federal judge indicated this week.

That view, in a ruling (pdf) against the ACLU by DC District Judge Royce C. Lamberth, all but nullifies one of the principal limitations on national security secrecy contained in the executive order on classification policy.

In section 1.7 of executive order 12958, as amended, on “classification limitations and prohibitions,” the President directed that “In no case shall information be classified in order to … conceal violations of law….”

The ACLU cited this provision in a recent FOIA lawsuit to argue that transcripts of detainee tribunal hearings could not be properly classified under the executive order if they revealed evidence of prisoner abuse or other illegal conduct.  The court rejected that argument.

“Plaintiffs [ACLU] claim that some material was improperly classified because it may contain evidence that the government has violated the law,” Judge Lamberth wrote in an October 29 ruling.  “But plaintiffs misapprehend the Executive Order,” he wrote  (at page 6). “Executive Order 12958 prohibits classifying information ‘in order to … conceal violations of the law.’  However, there is no indication that these materials were classified ‘in order to’ conceal violations of the law….”

In other words, according to Judge Lambert, classifiers actually may conceal violations of the law as long as such concealment is not the specific purpose of the classification.

This narrow understanding of the executive order converts an important guarantee of the integrity of the classification process into an empty rhetorical gesture.

Under Judge Lamberth’s interpretation, the executive order provision limiting classification of violations of the law is not a limitation on the types of information that may be classified at all, but rather an unverifiable limitation on the classifier’s intention.  The provision is not concerned with the consequences of classification (i.e., the fact that criminal activity will be concealed from public knowledge) but instead focuses on the mental state of the classifier.  Did he or she specifically intend to conceal violations of the law?  If not, the classification may proceed, even if concealment is the inevitable result.  And since the classifier’s mental state is unknowable by others or may itself be concealed, the executive order’s limitation is deprived of significant meaning.

In the past, the limitation on classification of violations of the law was construed more broadly as a public assurance that classification would not be used to conceal criminal activity by the government.  (It was never understood to require publication of information about third-party crimes collected through classified intelligence or law enforcement methods.)

In 2004, the Federation of American Scientists cited the provision in a complaint (pdf) filed with the Information Security Oversight Office (ISOO), contending that the Taguba report (pdf, classified SECRET) that found evidence of criminal abuses at Abu Ghraib prison was improperly classified.  ISOO, led by then-director J. William Leonard, undertook an investigation into the propriety of the report’s classification and reported some noteworthy results (pdf).  Not only was the Taguba report released in declassified form, but the Pentagon undertook a Department-wide initiative to improve classification training, management and oversight. The “motivation” in the mind of the classifier never came up.

The Secretary of Defense himself also issued a Department-wide memorandum (pdf) to remind classifiers of their responsibility to exercise classification authority properly, and he specifically cited the prohibition on classifying criminal activity.  In his September 16, 2004 memo, Defense Secretary Donald Rumsfeld paraphrased the executive order limitation as follows:  “It is important to state that classifiers shall not… use classification to conceal violations of law….”

Interestingly, Secretary Rumsfeld did not use the phrase “in order to” which Judge Lamberth singled out to justify his interpretation of the order as a prohibition only on deliberate concealment.  The Rumsfeld paraphrase seems to reflect the prior understanding that classification should not be used “so as to” conceal violations of the law, regardless of the intentions of the classifier.

But if violations of the law may in fact be classified, then it is important for Americans to know that. If Judge Lamberth has made it easier for classifiers to conceal violations of the law, he also put the public on notice that this is how the national security classification system now functions.

A range of presidential transition policy issues — including records management, budget preparation and the role of executive orders — is explored in a new report from the Congressional Research Service.  See “Presidential Transitions: Issues Involving Outgoing and Incoming Administrations” (pdf), October 23, 2008.

Other noteworthy new CRS reports obtained by Secrecy News that were not previously available online include the following (all pdf).

“Status of a Senator Who Has Been Indicted for or Convicted of a Felony,” October 22, 2008.

“Transatlantic Regulatory Cooperation: Background and Analysis,” October 22, 2008.

“Would an Influenza Pandemic Qualify as a Major Disaster Under the Stafford Act?,” October 20, 2008.

“The Cost of Iraq, Afghanistan, and Other Global War on Terror Operations Since 9/11,” updated October 15, 2008.

“The Federal Funding Accountability and Transparency Act: Implementation and Proposed Amendments,” October 22, 2008.

“Conventional Arms Transfers to Developing Nations, 2000-2007,” October 23, 2008.

The Director of National Intelligence today disclosed the 2008 budget for the National Intelligence Program: $47.5 billion.  That figure does not include spending for the Military Intelligence Program, which is at least another $10 billion.

The disclosure marks only the fourth time that the intelligence budget has been officially disclosed.  The aggregate intelligence budget figure (including national, joint military and tactical intelligence spending) was first released in 1997 ($26.6 billion) in response to a Freedom of Information Act lawsuit filed by the Federation of American Scientists.  It was voluntarily released in 1998 ($26.7 billion).  The National Intelligence Program budget was next disclosed in 2007 ($43.5 billion), in response to a Congressional mandate, based on a recommendation of the 9/11 Commission.  And then there was today’s release for 2008.

In recent years, the most passionate opponent of intelligence budget disclosure has been none other than Sen. Ted Stevens (R-AK), whose own financial non-disclosure practices have recently earned him multiple felony convictions.

In an October 4, 2004 Senate floor debate, Senator Stevens usefully marshaled all of the traditional arguments against disclosure.  Most of them were false at the time.  Others have since been disproven.

“No other nation, friend, or ally, reveals the amount that it spends on intelligence,” Sen. Stevens said then.

In fact, the United Kingdom, Canada, the Netherlands and other countries have published their intelligence budgets for many years without adverse effect.

“Determining classification is the responsibility and duty of the chief executive of the United States, the President, who is also Commander in Chief,” said Sen. Stevens. “Presidents Truman through Bush has determined that the overall intelligence budget top-line figure is, and shall remain, classified, and I believe we should not overrule that judgment.”

But Congress shares responsibility for defining the terms of the classification system.  And as a factual historical matter, President Clinton approved disclosure of the intelligence budget total.

The hoariest myth of all, renewed by Sen. Stevens, is that “This is a slippery slope. Reveal the first number and it will be just a matter of minutes before there will be a call to reveal more information.”

The notion of a “slippery slope” resulting from disclosure of the top-line budget figure has been asserted for decades even by officials who are not convicted felons. But by now, it has been conclusively disproven.  Disclosure of the intelligence budget total has not led to uncontrolled further disclosures.  The 9/11 Commission’s 2004 recommendation that budgets for “component agencies” should also be disclosed was not accepted and such further disclosures have not occurred despite release of the total figure.

But today the intelligence budget continues to serve as a useful barometer of the incoherence of official secrecy policy.  Thus, even after declassifying the FY 2007 intelligence budget figure last year, the Office of the Director of National Intelligence concluded last summer (pdf) that “The size of the National Intelligence Program budget for Fiscal Year 2006 is properly classified.”

It seems unlikely that both positions are correct.

The Director of National Intelligence issued a directive (pdf) this month that will make it easier for a person whose spouse or immediate family is not a U.S. citizen to gain a security clearance for access to intelligence information.

The new policy lowers a barrier that has long impeded intelligence agency hiring of qualified area experts, linguists and others simply because of their family ties.

Under the prior policy (Director of Central Intelligence Directive 6/4), one of the criteria for obtaining access to classified intelligence was that “The individual’s immediate family must also be US citizens.”  Although an exception to that standard could be granted by a senior official, it was only permitted in case of a “compelling need.”

Now, a clearance for those with foreign ties can be granted without a “compelling need,” though it may still involve additional processing.

“Subjects who have immediate family members or other persons who are non-United States citizens to whom the subject is bound by affection or obligation may be eligible for access to SCI and other controlled access program information as the result of a condition, deviation, or waiver from personnel security standards.”

The new policy was presented in Intelligence Community Directive 704, signed by DNI J. Michael McConnell on October 1, 2008.

The new policy is part of a ongoing transition towards “risk management” (as opposed to “risk avoidance”).  This is an approach to security policy which accepts a modicum of increased risk in order to advance mission performance.

Could terrorists use Twitter, the instant messaging and micro-blogging service?  Presumably so, just as they could use credit cards and can openers.

The potential use of Twitter and other communications technologies by terrorists is considered in a new draft Army intelligence paper, based on a review of jihadist web sites and other public sources.

The Army paper on “al Qaida-Like Mobile Discussions & Potential Creative Uses” was dissected by Noah Shachtman in “Spy Fears: Twitter Terrorists, Cell Phone Jihadists,” Danger Room, October 24.  A copy of the paper itself, which is more like a student exercise than a finished intelligence assessment, is available here (large pdf, for official use only).

On October 23, President Bush named former CIA information officer Herbert Briick to the Public Interest Declassification Board, and also reappointed former CIA general counsel Elizabeth Rindskopf Parker.  The Board will hold its next public meeting at the National Archives on Friday, October 31, where it will discuss how to identify and prioritize “historically valuable” information for declassification.  For details on attendance see this October 14 Federal Register notice (pdf).

What is intelligence?  Kristan J. Wheaton, a professor of intelligence studies at Mercyhurst College, invites readers to indicate their understanding of the term and its implications in a brief online survey.

The question of whether the United States needs a new domestic intelligence service that is independent of law enforcement was examined by Greg Treverton of the RAND Corporation in a new report for Congress entitled “Reorganizing U.S. Domestic Intelligence.”

Josh Gerstein, late of the New York Sun, has done some of the best reporting around on the AIPAC case involving unauthorized dissemination of classified information.  In a new blog posting, he updates readers on the latest developments in the case in advance of a pre-trial appeal hearing on October 29.

On July 16, 2008, the Senate Judiciary Committee held a hearing entitled “How the Administration’s Failed Detainee Policies Have Hurt the Fight Against Terrorism: Putting the Fight Against Terrorism on Sound Legal Foundations.”  The record of that hearing was recently published and is available here.