The Congressional Research Service has issued two new reports on the Foreign Intelligence Surveillance Act as Congress prepares to consider amendments to the Act (both pdf).

“The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues,” December 7, 2007.

“The Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee,” December 6, 2007.

The ability of Congress to provide an effective check on Bush Administration intelligence policy has been increasingly called into question by each succeeding departure from the norms of accepted intelligence conduct, including most recently the destruction of CIA interrogation videos.

Even the Intelligence Committee leadership has expressed a disconcerting degree of self-doubt and inadequacy.

“For seven years, I have witnessed first-hand how the Intelligence Committee has been continually frustrated in its efforts to understand and evaluate sensitive intelligence activities by an Administration that responds to legislative oversight requests with indifference, if not out-right disdain,” said Senate Intelligence Committee chair Sen. Jay Rockefeller (pdf) at a hearing last month.

“For years, the White House and the Intelligence Community have repeatedly withheld information and documents — even unclassified documents — from the Committee that we have asked for,” he said.

So it is all the more remarkable that the intelligence oversight committees have finally dusted off and used one of the tools they have always had to compel executive branch cooperation — the power of the purse.

Specifically, a provision of the new FY2008 intelligence authorization bill would prohibit expenditure of certain funds for an unidentified classified program unless and until every member of the oversight committees is briefed on intelligence about the September 6, 2007 Israeli strike on a Syrian facility.

See Section 328 (“Limitation on use of funds”) of the Conference Report on the FY 2008 Intelligence Authorization Act completed last week.

Although disputes over congressional access to information date back to the first months of the Bush Administration, a review of past legislation shows that the intelligence committees have not previously exercised their budget authorization power in this way to compel disclosure of information, or to penalize non-disclosure, under the current Administration.

In fact, a former staffer told Secrecy News he could not remember this approach ever having been used by the intelligence committees (though other committees have often made release of funds contingent on submission of required reports under their jurisdiction).

So why did they do it now?

The former staffer pointed to testimony last month by former Rep. Lee Hamilton at a Senate Intelligence Committee hearing in which he stressed the use of financial incentives to induce intelligence agencies to submit to oversight:

“Okay, they don’t share information. What do you do about it? You’ve only got one tool: ‘If you don’t give us this information, you’re not going to get the money.’ That’s it,” Mr. Hamilton told the Committee on November 13.

The scales seemed to fall from the members’ eyes.

“I think you’ve given us a game-changing scenario,” replied Sen. Kit Bond (R- MO) at the hearing.

The use of appropriations authority to elicit information from the executive branch actually dates back to the earliest days of the Republic, observed Louis Fisher in a 2001 Congressional Research Service report.

“Presidents may have to surrender documents they consider sensitive or confidential in order to obtain funds from Congress to implement programs important to the executive branch. This congressional leverage is evident in a number of early executive-legislative confrontations.”

See “Congressional Access to Executive Branch Information: Legislative Tools” (pdf), May 17, 2001.

Update: To give credit where it’s due, the amendment restricting the use of funds until the requested briefings have taken place was introduced by Rep. Pete Hoekstra (R-MI), the former chairman of the House Intelligence Committee. It was adopted in the House-Senate conference.

Noteworthy new reports from the Congressional Research Service include the following (all pdf).

“Open Source Intelligence (OSINT): Issues for Congress,” December 5, 2007.

“Medal of Honor Recipients: 1979-2007,” updated November 13, 2007.

“Homeland Security Department: FY2008 Appropriations,” updated August 20, 2007.

“Greece Update,” updated October 16, 2007.

“The Republic of the Philippines: Background and U.S. Relations,” updated August 10, 2007.

When the Central Intelligence Agency released several declassified histories of its clandestine services program this week, it seemed like a solid indication of progress towards opening up the historical record of U.S. intelligence.

But upon closer inspection of the newly released documents, the opposite appears to be closer to the truth. It turns out that CIA has engaged in pointless multiple reviews of the same document, and has even attempted to classify and to withhold information that had previously been declassified and disclosed.

Today, the Federation of American Scientists asked the Information Security Oversight Office (pdf) to investigate the matter.

The 1961 “Record of Paramilitary Action Against the Castro Government of Cuba” (pdf) that was posted on the CIA web site this week was first processed for declassification in 1997 in response to a request from Peter Kornbluh, the Cuba expert at the National Security Archive, and the lightly redacted document was posted on the Archive web site in 1998.

In 2007, the same document was again subjected to declassification review. It was re-scanned by CIA reviewers and this time the redactions were made by whiting out the text instead of blacking it out as had been done ten years ago. But appearances aside, a comparison of the two documents indicates that no new information was released since 1997.

In other words, despite the CIA’s expenditure of scarce declassification resources to process the document twice, no value was added by doing so.

Even more problematic is the Agency’s handling of the declassified history of “The Berlin Tunnel Operation, 1952-1956” (pdf), because the CIA attempted to withhold portions of that report as classified even though they had previously been released.

The Berlin Tunnel history has been reviewed several times for declassification. The latest version that was released by the CIA this week was “approved for release” in July 2007. Another version of the same document was previously “approved for release” in February 2007.

Astonishingly, much of the text that was released in February is marked as classified in the July version!

So, for example, the codename of the Berlin Tunnel Operation — PBJOINTLY — was published in the February edition of the history (at page i), but censored in the July edition that was released this week.

More substantively, a fifteen page appendix (App. A) entitled “Discovery by the Soviets of PBJOINTLY” was published in full in February but was almost entirely redacted in July.

Likewise, a six page appendix (App. B) entitled “Recapitulation of the Intelligence Derived” was published in full in February but redacted in July. And there are many other examples of such attempted reclassifications scattered throughout.

A copy of the more complete February 2007 version is posted here.

And for comparison, the more recent but less revealing July 2007 version is here.

“For the CIA to represent the material that was newly redacted in July 2007 as classified when in fact it has been declassified and published by the CIA itself is, I believe, a violation of the executive order,” I wrote in a letter to the Information Security Oversight Office today. “It generates confusion and suggests poor quality control, if not something worse.”

“I hope that ISOO may be able to help clarify the source of CIA’s defective declassification practice in this instance and to identify an appropriate corrective.”

“We’ll look into it,” replied Bill Leonard, the ISOO Director.

The Central Intelligence Agency has recently declassified and released several additional volumes of its coveted Clandestine Services History series. These are official Agency histories prepared for internal use regarding significant episodes in the Agency’s cold war record. Scholarly access to such documents has been sporadic and subject to strict controls.

The following clandestine service history volumes were approved for release in July 2007 following a new declassification review and were recently disclosed (all pdf).

“The Secret War in Korea, June 1950 to June 1952,” March 1964.

“Record of Paramilitary Action Against the Castro Government of Cuba, 17 March 1960 – May 1961,” May 1961.

“The Evolution of Ground Paramilitary Activities at the Staff Level, October 1949-September 1955,” November 1968.

“The Berlin Tunnel Operation, 1952-1956,” 24 June 1968.

The declassified documents were made available on CIA’s useful Freedom of Information Act site at www.foia.cia.gov.

Updated below

Filmmaker Oliver Stone is expected to visit Tehran in the near future to negotiate arrangements for a film about Iranian President Mahmoud Ahmadinejad, the Iranian press reported last week.

“We have announced that he has asked for permission to travel to Iran for direct negotiations and to plan the project,” one official told the Tehran Times.

Stone first sought Iranian permission last summer to make the film, variously referred to as “Ahmadijenad’s Adventures” or “The Truth About Ahmadinejad.” His initial request was denied, but was then reconsidered and approved by the President himself “if certain conditions were met.”

Among such conditions, the Tehran Times reported, “Stone would not be allowed to invent any scenarios. [Instead,] he should only use incidents from the president’s real life in the film.”

See “Oliver Stone may visit Tehran for Ahmadinejad biopic: Sajjadpur,” Tehran Times, November 30.

News about the proposed film project “has amazed and worried many friends of Islamic Iran’s honour and power and those concerned about its reputation,” according to one Iranian commentator.

“How can one trust a person… who, despite efforts at proclaiming himself to represent the opposition in America’s ruling system, is in line and in accordance with the essence and the overall policies of this system,” wrote Elham Rajabpur in the conservative Tehran daily Keyhan.

The writer objected to several of Stone’s films including Alexander (“a hated figure among Iranians”) and The Doors (about “one of America’s perverted and half-mad singers”).

“We are afraid that the outcome of [Stone’s Iranian film] venture will not be the true and realistic portrayal of an intellectual and a peacemaker such as Ahmadinejad, but a portrayal of Ahmadinejad according to Stone, Hollywood, and global Zionism.”

See “Oliver Stone’s Presence in Iran: Opportunity or Threat” by Elham Rajabpur, Keyhan, December 3 (translated by the DNI Open Source Center).

Update: “A spokesman for Oliver Stone said today that the Oscar-winning director has ‘no plans at this time to go to Tehran,’ despite recent reports suggesting that he could soon be traveling to the Iranian capital for a project about President Mahmoud Ahmadinejad,” the Los Angeles Times reported. See “Oliver Stone quashes Iran visit report” by Robert W. Welkos, December 7.

The complexities of U.S. defense contracting in Iraq and some of the resulting irregularities are reviewed in a newly updated report from the Congressional Research Service.

“Given the size and scope of the contracts in Iraq, and the challenge of managing billions of DOD-appropriated dollars, many have suggested it appropriate to inquire whether these types of contracts can be managed better,” the CRS report delicately stated.

See “Defense Contracting in Iraq: Issues and Options for Congress” (pdf), updated November 15, 2007.

Other noteworthy new CRS reports obtained by Secrecy News include the following (all pdf):

“North Korea’s Nuclear Weapons: Latest Developments,” November 21, 2007.

“Russian Energy Policy toward Neighboring Countries,” November 27, 2007.

“Foreign Aid Reform: Issues for Congress and Policy Options,” November 7, 2007.

“Defense: FY2008 Authorization and Appropriations,” updated November 28, 2007.

“Botnets, Cybercrime, and Cyberterrorism: Vulnerabilities and Policy Issues for Congress,” updated November 15, 2007.

In an unusual policy pirouette, the Office of the Director of National Intelligence yesterday published the key judgments (pdf) of a National Intelligence Estimate on Iran’s nuclear weapons program little more than a month after the DNI issued guidance declaring that “It is the policy of the Director of National Intelligence that KJs [key judgments] should not be declassified.”

“We judge with high confidence that in fall 2003, Tehran halted its nuclear weapons program,” the new Estimate states dramatically.

Although it goes on to assert “moderate-to-high confidence that Tehran at a minimum is keeping open the option to develop nuclear weapons,” the new Estimate effectively distances the U.S. intelligence community from those who insist that Iran is irrevocably bent on acquiring nuclear weapons.

By challenging the prejudices of the Administration rather than reinforcing them, the NIE on Iran does what earlier estimates on Iraq notoriously failed to do.

It also departs from the judgments of the 2005 NIE on Iran, which is why it has now been publicly disclosed, according to Deputy DNI Donald Kerr.

“Since our understanding of Iran’s capabilities has changed, we felt it was important to release this information to ensure that an accurate presentation is available,” he said (pdf).

In fact, however, Congress directed the DNI in the FY 2007 defense authorization act to prepare an unclassified summary of the Estimate.

“Consistent with the protection of intelligence sources and methods, an unclassified summary of the key judgments of the National Intelligence Estimate should be submitted.” (House Report 109-702, section 1213, Intelligence on Iran).

The Central Intelligence Agency anticipates declining productivity in its declassification program, according to a newly disclosed declassification plan (pdf).

Between 1995 and 2006, CIA reviewed nearly 97 million pages of 25 year old documents and released 30 million pages, the Agency reported. But that level of activity is unlikely to be sustained.

“Resource constraints limit our ability to implement the detailed — and expensive — review intrinsic to a redaction strategy [in which individual words or passages are deleted from a particular page] and drive us in the direction of a document-level pass-fail system [in which an entire document is either fully released or fully withheld], which significantly reduces the number of documents that can be released.”

Nor is CIA willing to permit other government agencies to review its records for possible release, which would be one way to optimize the declassification process.

“CIA has no plans to delegate broad declassification authority to other government agencies. In fact, CIA has rescinded past arrangements under which it delegated limited declassification authority to NARA,” the CIA declassification plan noted.

In a previously unreported step that further limits disclosure, the CIA has devised a new loophole in the automatic declassification requirements of the executive order on classification policy.

In CIA’s reading, a 25 year old document is not considered “historically valuable,” and therefore subject to automatic declassification, unless and until it is no longer in use. But if the document is still in active use, the CIA says, it does not qualify as historically valuable for purposes of declassification no matter how historically significant it may be.

“Surveys of records in the D/CIA and the Directorate of Intelligence areas indicate that certain of these records, while containing pre-1982 materials, are still in use and therefore remain unretired.” Such records, CIA says, will only be subject to automatic declassification requirements “when and if [they] are retired permanently.”

“Many of CIA’s methods, techniques, and operations over 25 years old are still active,” the plan notes. “In some cases, currently inactive sources and methods may be reactivated.”

The CIA Declassification Plan was submitted to the Information Security Oversight Office in April 2006. It was approved for release in October 2007 with limited redactions in response to a request from researcher Michael Ravnitzky. A copy of the document is here.

The President’s Daily Brief (PDB), a highly classified intelligence report prepared daily for the President of the United States, “is the quintessential predecisional, deliberative document,” the Central Intelligence Agency argued (pdf) recently in court, claiming that virtually nothing about it can be made public even after several decades have passed.

But a 1970 memorandum (large pdf) disclosed this week at the Nixon Library sets aside any such reticence and provides a detailed look at the preparation, evaluation and reception of the PDB.

Meredith Fuchs of the National Security Archive, who litigated a Freedom of Information Act case earlier this year seeking access to historical PDBs, expressed surprise at the new release.

“What is most amazing is that one day they say the method of producing [the PDB] is so secret that nothing about the document can be disclosed, and then not long after they release this detailed, hour by hour explanation of how it is produced,” she said.

The 1970 memorandum, written by Andrew Marshall for Henry Kissinger, describes strengths and weaknesses in the PDB process, and proposals for improvement.

But the biggest “secret” about the Daily Brief may be what Marshall described as “the widely shared suspicion that the President does not ever read the CIA PDBs.”

As for the selection process that determines what to include in the PDB, Mr. Marshall wrote in his Top Secret Codeword report, “It is derived… to a large extent, I believe, from a sense of what’s timely as judged from the New York Times, press, and wire service coverage.”

See the “Evaluation of the Process Leading to the President’s Morning Intelligence Reading Package,” memorandum for Henry A. Kissinger from A.W. Marshall, March 18, 1970 (13 MB PDF file).

Selected other declassified documents from the Nixon Library released this week are here.

Background on PDBs including previous releases and recent litigation in which an appeals court upheld the denial of two Vietnam-era Briefs is available from the National Security Archive here.

Last July, President Bush issued a broadly-worded executive order authorizing the government to seize the assets of “any person” who threatens the stability of Iraq and, more controversially, any person who provides assistance to such a person.

The scope, objectives and precedents of the order — Executive Order 13,438, “Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq” — were examined in a new report (pdf) from the Congressional Research Service.

“The broad language of this executive order has been the subject of a degree of criticism as potentially reaching beyond insurgents in Iraq to third parties, such as U.S. citizens, who may unknowingly be providing support for the insurgency,” the CRS report noted, citing prior reports in the Washington Post, TPM Muckraker, and elsewhere.

In fact, the potential application of the order appears to be technically unlimited since it includes a recursive clause that has no defined endpoint.

Thus, section 1(b) of the Order states that any person who provides goods or services to a person whose actions are proscribed under section 1(a) is himself subject to section 1(a). But then, anyone who provides similar support to that person could likewise be swept up in the expansive terms of the order. And so on, without end.

In practice, the application of the order will be defined by implementing regulations to be issued by the Treasury Department’s Office of Foreign Assets Control, which will also prepare an initial list of blocked individuals and organizations. Those have still not been published.

A copy of the new CRS report was obtained by Secrecy News.

See “Executive Order 13,438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq,” November 16, 2007.

New issuances on Defense Department intelligence policy include the following (all pdf).

“Access to Classified Cryptographic Information,” DoD Instruction 5205.08, November 8, 2007.

“Scientific and Technical Intelligence Liaison Officer (STILO) Program and Intelligence Support for the naval Research, Development, Test & Evaluation, and Acquisition Communities,” OPNAV Instruction 3880.6A, November 5, 2007.

And for good measure there is the “NATO Glossary of Abbreviations Used in NATO Documents and Publications,” 2007. It indicates, for example, that the French for “sensitive compartmented information” is “informations sensibles cloisonnées.”