New products from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Safe at Home? Letting Ebola-Stricken Americans Return, CRS Insights, August 5, 2014:

2014 Quadrennial Homeland Security Review: Evolution of Strategic Review, CRS Insights, August 6, 2014

Reducing the Budget Deficit: Overview of Policy Issues, August 7, 2014

Juvenile Victims of Domestic Sex Trafficking: Juvenile Justice Issues, August 5, 2014

U.S.-EU Cooperation on Ukraine and Russia, CRS Insights, August 7, 2014

A bill introduced in the House of Representatives by Rep. Bennie Thompson (D-MS) would direct the President to reduce the amount of classified information by 10%. It is one of several new congressional initiatives seeking to rectify perceived defects in the national security classification system.

Most prominently, the Senate Intelligence Committee is engaged in an ongoing dispute with the Administration over declassification of the Committee’s report on the CIA’s post-9/11 detention and interrogation program.

Sen. Dianne Feinstein, the Committee chair, said the Administration’s proposed redactions to the executive summary of the report were unacceptably broad.

“I have concluded the redactions eliminate or obscure key facts that support the report’s findings and conclusions,” she said on August 5. “Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.”

With this contentious experience fresh in mind, one might have expected the Senate Intelligence Committee to have acquired special insight into the failings of the existing classification system and to have devised some well-considered remedial measures to address them.

But that does not appear to be the case.

In its new intelligence authorization bill for Fiscal Year 2015 (S. 2741, sec. 311), the Committee weakly requires the Director of National Intelligence to prepare a report “describing proposals to improve the declassification process throughout the intelligence community.”

Under current circumstances, this proposed reporting requirement seems like a failure of imagination and leadership, and probably a waste of everyone’s time. Perhaps it is just a placeholder for something more ambitious that is still to come.

By contrast, the bill introduced by Rep. Thompson in the House and by Sen. Ron Wyden in the Senate is prescriptive and solution-oriented in its treatment of the issue.

Among its several provisions, the new bill (HR 5240) would require the President “to establish a goal for the reduction of classified information by not less than 10 percent within five years through improved declassification and improved original and derivative classification decision-making,” according to a Fact Sheet on the bill, dubbed the CORRECT Act. (It is unclear how the 10 percent reduction in information would be measured, whether in pages or bytes or number of classification decisions or by some other standard.)

The Thompson/Wyden bill would also bolster and expand the Public Interest Declassification Board, assigning it the responsibility to evaluate the continuing validity of all current classification guidance. Though this provision may seem innocuous, it is a clear challenge to the autonomy that is currently enjoyed by executive branch agencies regarding what is to be classified. As such, it represents the kernel of a solution to the problem of overclassification.

The bill would further direct the Privacy and Civil Liberties Oversight Board to establish standards for the emerging insider threat program, and it would decisively break from current practice by authorizing the Merit System Protection Board to review agency denials or revocations of security clearances.

However, the deliberative effort that has gone into preparing the bill is not going to yield any near-term reward. In all likelihood, Rep. Thompson’s CORRECT Act will not even receive a hearing in the remainder of this expiring Congress.

Another modest but potentially useful legislative effort is an amendment to be introduced by Sen. Jeanne Shaheen that would enhance the authority and capacity of the National Declassification Center.

If the Senate Intelligence Committee wants a report on “improving declassification,” as the new intelligence authorization bill requires, then there is already a report with that very title that was prepared by the Public Interest Declassification Board in December 2007.

Several of the report’s recommendations have still not been acted on. Among them is a proposal that “formal procedures should be established for the declassification review of classified [congressional] committee reports and hearing transcripts.”

Because such records are produced and held by congressional committees, such as the Senate Intelligence Committee, they are not eligible for declassification unless and until the originating committee takes the initiative to have them reviewed and declassified. Yet this is rarely done, despite the importance of these materials.

“Frequently, closed sessions of congressional committees are the only occasion when executive branch policy in the national security area is explained, challenged (by members), and defended by administration representatives. The exchanges at these hearings, as well as the views of Congress (elaborated in classified committee reports), often affect the policy choices of the executive branch. Yet, because the records of the committees involved are classified and never subjected to declassification review, the public and historians are largely unaware of their existence,” the PIDB report said.

“Despite their historical significance, classified records created by the Congress are reviewed for declassification only on a hit-or-miss and relatively limited basis. As a result, the public is denied a valuable source of historically significant information,” the report said.

So, for example, not a single classified annex to the annual intelligence authorization bills produced by the congressional intelligence committees has ever been declassified.

New products from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Asylum Policies for Unaccompanied Children Compared with Expedited Removal Policies for Unauthorized Adults: In Brief, July 30, 2014

EPA’s Proposed CO2 Rule for Existing Power Plants: How Would It Affect Nuclear Energy?, CRS Insights, August 4, 2014

Shale Gas Gathering Pipelines: Safety Issues, CRS Insights, August 1, 2014

Nonmarital Births: An Overview, July 30, 2014

Export-Import Bank Reauthorization: Frequently Asked Questions, August 1, 2014

Indonesia’s 2014 Presidential Election, CRS Insights, August 4, 2014

U.S.-Russia Economic Relations (updated), CRS Insights, August 1, 2014

U.S.-Africa Leaders Summit: Frequently Asked Questions and Background (updated), July 31, 2014

“Womenomics” in Japan: In Brief, August 1, 2014

“Identity intelligence” is a relatively new intelligence construct that refers to the analysis and use of personal information, including biometric and forensic data among others, to identify intelligence targets of interest and to deny them anonymity.

The term began to appear a few years ago and was included, for example, in a 2012 Defense Intelligence Agency briefing package. Since then it has quickly propagated throughout U.S. military and intelligence operations.

Identity intelligence (or I2) was included for the first time in published U.S. military doctrine in the October 2013 edition of Joint Publication (JP) 2-0 on Joint Intelligence, which elaborated on the concept. Identity intelligence is used, JP 2-0 said, “to discover the existence of unknown potential threat actors by connecting individuals to other persons, places, events, or materials, analyzing patterns of life, and characterizing their level of potential threats to US interests.”

(“Identity intelligence” also appeared in an undated Top Secret document that was disclosed by Edward Snowden and published in excerpted form by the New York Times on May 31, 2014.)

Most recently, an updated U.S. Department of Defense publication on special operations noted this month that “Identity intelligence products enable real-time decisions in special operations worldwide.”

The new DoD doctrine on Special Operations — Joint Publication 3-05, dated 16 July 2014 — includes further discussion of identity intelligence (I2) in the special operations context:

“I2 is the collection, analysis, exploitation, and management of identity attributes and associated technologies and processes. The identification process utilizes biometrics-enabled intelligence (BEI), forensics-enabled intelligence (FEI), information obtained through document and media exploitation (DOMEX), and combat information and intelligence to identify a person or members of a group.”

“I2 fuses identity attributes (biological, biographical, behavioral, and reputational information related to individuals) and other information and intelligence associated with those attributes collected across all intelligence disciplines….”

“USSOCOM [US Special Operations Command] exploits biometric, forensic, document and media data collections and integrates the data with all-source intelligence to locate and track unattributed identities across multiple or disparate instances. Intelligence collections are processed through the appropriate DOD and interagency databases, exploited to produce intelligence, and then disseminated to deployed SOF and throughout the interagency. I2 products enable real-time decisions in special operations worldwide.”

*    *    *
Identity intelligence aside, the new Joint Publication 3-05 provides an informative account of the role of special operations, along with some notable changes from previous special operations doctrine.

“Special operations require unique modes of employment, tactics, techniques, procedures, and equipment. They are often conducted in hostile, denied, or politically and/or diplomatically sensitive environments, and are characterized by one or more of the following: time-sensitivity, clandestine or covert nature, low visibility, work with or through indigenous forces, greater requirements for regional orientation and cultural expertise, and a higher degree of risk,” JP 3-05 says.

The previous edition of this publication (dated 2011) had identified 11 core activities for special operations: direct action, special reconnaissance, counterproliferation of weapons of mass destruction, counterterrorism, unconventional warfare, foreign internal defense, security force assistance, counterinsurgency, information operations (IO), military information support operations (MISO), and civil affairs operations.

The new edition adds a 12th mission that up to now had not been considered a core activity: hostage rescue and recovery.

“Hostage rescue and recovery operations are sensitive crisis response missions in response to terrorist threats and incidents. Offensive operations in support of hostage rescue and recovery can include the recapture of US facilities, installations, and sensitive material overseas,” the new JP 3-05 states.

New and updated products of the Congressional Research Service obtained by Secrecy News include the following.

U.S.-Russia Economic Relations, CRS Insights, July 29, 2014

Russia Sanctions: Options, CRS Insights, July 28, 2014

Protecting Civilian Flights from Missiles, CRS Insights, July 28, 2014

Possible Missile Attack on Malaysia Airlines Flight 17, CRS Insights, July 28, 2014

Responding to Libya’s Political and Security Crises: Policy Choices for the United States, CRS Insights, July 28, 2014

The 2014 European Parliament Elections: Outcomes and Implications, CRS Insights, July 24, 2014

Conflict in Syria and Iraq: Implications for Religious Minorities, CRS Insights, July 24, 2014

Implementing the Affordable Care Act: Delays, Extensions, and Other Actions Taken by the Administration, July 28, 2014

The Receipt of Gifts by Federal Employees in the Executive Branch, July 25, 2014

U.S.-Africa Leaders Summit: Frequently Asked Questions and Background, July 25, 2014

Stealing Trade Secrets and Economic Espionage: An Overview of U.S.C. 1831 and 1832, July 25, 2014

Stealing Trade Secrets and Economic Espionage: An Abridged Overview of 18 U.S.C. 1831 and 1832, July 25, 2014

 

In preparing its recent PCLOB) demonstrated an unusual mode of declassification, in which one executive branch agency asks another agency to declassify information.

In this case, the process was remarkably productive, and it may offer a precedent for future declassification efforts.

“During the process of preparing this report we sought and obtained declassification of facts about this still highly classified [Section 702] program in order to allow us to put in context how the program operates and clarify some public misconceptions,” said PCLOB Chairman David Medine at a July 2 public meeting.

“As a result, over one hundred new facts were declassified by the government to provide needed context for the program’s operation,” he said.

In what the PCLOB staff termed a “lateral declassification” model, it was an executive branch agency (i.e., the PCLOB itself) — rather than Congress or members of the public — that pressed another government agency (ODNI, NSA, CIA, FBI or Justice) to declassify specific information.

Such an interagency request for declassification differs from the “referrals” that agencies routinely direct to one another. In those cases, the receiving agency is simply asked to review records to identify its own classified information (or “equities”) and then to advise the originating agency what must be withheld and what may be disclosed.

Here, the PCLOB didn’t merely ask agencies to screen for classified information under existing classification standards. It urged them to actually change those standards. And in more than 100 specific cases, the agencies did so.

Most of the declassified facts in the PCLOB Section 702 report are not specifically flagged as having been declassified at the Board’s request, and they may therefore be easily overlooked. A partial compilation of such newly declassified facts, prepared by a participant in the process, was obtained by Secrecy News.

Several features appear to have contributed to the efficacy of the lateral declassification approach.

For one thing, the requesting agency (the PCLOB) already possessed the requested information in classified form. So it knew exactly what it was asking for, and why it was asking for it to be declassified.

And then the fact that the declassification requests originated within the executive branch itself (the PCLOB is an independent executive branch agency) made it harder for the recipient agencies to ignore the request and easier for them to fulfill it.

By contrast, public requests through the Freedom of Information Act often seem to decline into an adversarial contest, in which the agency adopts a defensive posture and offers only minimal, grudging compliance with disclosure requirements.  (At CIA, one gets the impression that asking for a record to be declassified can make it less likely to be disclosed.) Requests from Congress also inevitably have a political overlay, and may be seen to serve an agenda that does not coincide with the Administration’s own.

But as part of the Administration, the PCLOB’s many declassification requests did not trigger the sort of immune response that any outside request would have done.

Of course, the PCLOB’s work, including its declassification proposals, did not take place in a vacuum.

“A lot of political wind was at our back,” said Peter Winn, acting general counsel for the Board.

Not only had related classified details entered the public domain through the Snowden disclosures, but calls for declassification of more information regarding current surveillance programs had been explicitly endorsed by the Director of National Intelligence and other senior officials.

Because of these competing factors, the role played by the Board’s “lateral declassification” approach cannot be precisely delineated or clearly distinguished from them.

But its apparent effectiveness is consistent with the productive declassification work performed by another executive branch body, the Interagency Security Classification Appeals Panel (ISCAP), which has declassified information in a large majority of the mandatory declassification review appeals presented to it.

Perhaps most important, the Board’s experience with declassification in the Section 702 report may serve as a precedent for similar initiatives in the future.

“For us, it’s a model,” said Sharon Bradford Franklin, executive director of the PCLOB.

She noted that more than 90% of the Board’s requests for declassification had been granted, and that they preceded completion of the Board’s report. (That is, the declassification actions were not predicated on any agency’s review of the Board’s conclusions or recommendations.)

Enough information about the 702 program was declassified that a classified annex — which had earlier been assumed to be necessary — turned out to be unnecessary, Ms. Franklin said.

She also credited the intelligence agencies for their diligent engagement and cooperation in the declassification process, as did the published PCLOB report.

“In the preparation of this Report, the Board worked with the Intelligence Community to seek further declassification of information related to the Section 702 program,” the report noted (at p. 3).

“Specifically, the Board requested declassification of additional facts for use in this Report. Consistent with the Board’s goal of seeking greater transparency where appropriate, the request for declassification of additional facts to be used in this Report was made in order to provide further clarity and education to the public about the Section 702 program.”

“The Intelligence Community carefully considered the Board’s requests and has engaged in a productive dialogue with PCLOB staff. The Board greatly appreciates the diligent efforts of the Intelligence Community to work through the declassification process, and as a result of the process, many facts that were previously classified are now available to the public.”

The final PCLOB report on the Section 702 program included several recommendations concerning transparency, including proposals for further specific declassification actions. Those proposals remain pending.

New or newly updated publications from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Free Exercise of Religion by Closely Held Corporations: Implications of Burwell v. Hobby Lobby Stores, Inc., July 23, 2014

What Is the Farm Bill?, July 23, 2014

Deploying 5G (Fifth Generation) Wireless Technology: Is the United States on Track?, CRS Insights, July 23, 2014

Federal Student Loan Forgiveness and Loan Repayment Programs, July 22, 2014

State CO2 Emission Rate Goals in EPA’s Proposed Rule for Existing Power Plants, July 21, 2014

Measuring the Loss of Manufacturing Jobs, CRS Insights, July 21, 2014

Shipping U.S. Crude Oil by Water: Vessel Flag Requirements and Safety Issues, July 21, 2014

Mountaintop Mining: Background on Current Controversies, July 21, 2014

Defense Surplus Equipment Disposal: Background Information, July 22, 2014

In 2000, both houses of Congress passed legislation that would have made any leak of classified information a felony.

The provision, contained in the FY2001 intelligence authorization act, was designed “to ensure the prosecution of all unauthorized disclosures of classified information.” said Sen. Richard Shelby, the primary sponsor of the provision, at the time.

While some unauthorized disclosures of classified information were already prohibited by statute (including the Espionage Act), others have not been specifically outlawed, or else their legal status is uncertain, requiring strenuous efforts by prosecutors to fit a prohibition to the presumed offense. The Shelby provision would have removed all ambiguities and would have simply criminalized all leaks of classified information.

But to the astonishment of nearly everyone, and to the relief of many, President Clinton vetoed the 2001 intelligence authorization bill because of the anti-leak measure.

“Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy,” he wrote in his November 4, 2000 veto message.

But that unexpected outcome almost didn’t come to pass.

Instead of a veto, White House lawyers had prepared draft signing statements for President Clinton in which he would have approved the bill, while expressing some reservations about its potential impact.

The draft signing statements were released by the Clinton Presidential Library last week. The newly disclosed presidential documents were first noted by Josh Gerstein in Politico on July 18.

“I strongly believe… that this new provision should not be applied in a manner that could chill legitimate activity or transform questions of judgment into criminal referrals,” according to the draft signing statement for President Clinton that was ultimately set aside in favor of a veto of the bill.

The worst effects of the anti-leak measure could be avoided by the limited, judicious use of prosecutorial authority, White House lawyers initially suggested.

“It is extraordinarily important, therefore, that the Justice Department use its prosecutorial discretion wisely when apparently unauthorized disclosures are referred to it for possible prosecution under this new provision,” the draft signing statement said.

Prosecutorial discretion often seems to be in short supply, however, and in all likelihood it would not have been an effective bulwark against abuse of the vetoed anti-leak provision, had it passed into law.

An apparent excess of zeal in the prosecution of classified document (mis-)handling was highlighted just last week in the case of Navy contract linguist James F. Hitselberger, who had been charged with multiple felonies in connection with the unlawful retention of national defense information. Earlier this year, Mr. Hitselberger pleaded guilty to a single misdemeanor. Last Thursday, he was sentenced to time already served (in pre-trial custody) and a fine of $250.00.

New publications from the Congressional Research Service that Congress has withheld from online public distribution include the following.

U.S. Sanctions on Russia in Response to Events in Ukraine, July 18, 2014

Use of Force Considerations in Iraq, July 15, 2014

The Kurds and Possible Iraqi Kurdish Independence, July 15, 2014

Unaccompanied Alien Children: A Processing Flow Chart, July 16, 2014

District of Columbia: Marijuana Decriminalization and Enforcement; Issues of Home Rule and Congressional Oversight, July 17, 2014

Improving Health Care Access for Veterans: H.R. 3230, July 16, 2014

FY2015 National Defense Authorization Act: Selected Military Personnel Issues, July 16, 2014

“Black Boxes” in Passenger Vehicles: Policy Issues, July 21, 2014

Updated below

The National Security Agency would be required to prepare an unclassified report on “all NSA bulk collection activities,” the Senate Appropriations Committee directed in its report on the Fiscal Year 2015 Department of Defense Appropriations bill, published yesterday.

The Committee told the NSA to prepare a report “describing all NSA bulk collection activities, including when such activities began, the cost of such activities, what types of records have been collected in the past, what types of records are currently being collected, and any plans for future bulk collection.”

Such a report would be expected to clarify whether NSA bulk collection extends beyond the acknowledged telephone metadata program in Section 215 of the USA Patriot Act.

The required report is to be “unclassified to the greatest extent possible,” the Senate Committee said.

In the reporting requirements that it imposed on NSA, the Senate Appropriations Committee notably went beyond what was required by the Senate or House Intelligence Committees.

The Appropriations Committee also directed NSA to submit additional reports on the total number of records acquired and reviewed by NSA in its bulk telephone metadata program over the past five years, and an estimate of the number of records of U.S. persons that have been acquired and reviewed in the telephone metadata program.

Another unclassified report is required to provide “a list of terrorist activities that were disrupted, in whole or in part, with the aid of information obtained through NSA’s telephone metadata program.”

A January 2014 report of the Privacy and Civil Liberties Oversight Board found that the Section 215 telephone metadata program had “minimal value in protecting the nation from terrorism.”

“We are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack,” the PCLOB report said.

In contrast to the Section 215 bulk telephone metadata program, the PCLOB said in a report this month that the Section 702 program to collect the communications of targeted non-U.S. persons abroad “has proven valuable in a number of ways to the government’s efforts to combat terrorism,” and that it had enabled the government to “discover previously unknown terrorist operatives and disrupt specific terrorist plots.”

The Board cautioned, however, that the 702 program “may allow a substantial amount of private information about U.S. persons to be acquired by the government, examined by its personnel, and used in ways that may have a negative impact on those persons.”

An estimate of the amount of such U.S. person information collected under the Section 702 program was not specifically required by the Senate Appropriations Committee.

Update: Identical reporting language was included by the Senate Appropriations Committee last year in its report on the FY2014 Defense Appropriations bill (h/t @byersalex), yet the required NSA reports were not produced.

At Emptywheel, Marcy Wheeler questions the utility of the proposed reports, particularly since the Senate Committee language lacks a clear, unambiguous definition of “bulk collection.”

The Director of National Intelligence has issued new guidance on assessing damage resulting from the unauthorized disclosure of classified intelligence information to ensure that the damage assessments “are produced in an efficient, timely, consistent and collaborative manner.”

Leak damage assessments should be used iteratively and the lessons learned from them should be applied “to strengthen the protection of classified national intelligence and prevent future unauthorized disclosures or compromises.”

In addition to the facts and circumstances of the unauthorized disclosure, damage assessments should identify “any foreign involvement” in the case and “actionable recommendations to prevent future occurrences.”

Where foreign partners are affected by the leak, agency heads shall coordinate with DNI “prior to notifying a foreign government.” Also, “foreign governments normally will not be advised of any security system vulnerabilities that contributed to the compromise.”

See “Damage Assessments,” Intelligence Community Directive 732, June 27, 2014.

A secure U.S. government facility in Herndon, Virginia needs a master chef who holds or who can obtain a Top Secret security clearance.

The job opening was announced by Sodexo, the international food service company.

“Sodexo’s Government Services Division is seeking a strong Executive Chef to manage all the culinary operations at a high profile government dining account in Northern Virginia. The successful candidate must be able to obtain a TS/SCI clearance,” the announcement said.

Though it may seem ridiculous, the requirement for a chef with a Top Secret clearance exemplifies a significant policy problem, namely the use of the security clearance process as an employee screening tool.

To all appearances, a chef does not need a security clearance. Although the successful applicant “must become familiar with Sodexo recipes,” those recipes are not national security secrets, and a clearance should not needed to perform the job of Executive Chef.

Nevertheless, a clearance requirement has evidently been imposed because the “culinary operations” are to be conducted in a secure government facility that will place the chef in proximity to secrets, even if he or she does not actually come into possession of any.

This use of the national security clearance process has contributed to the skyrocketing growth in security-cleared personnel. As of October 2013, the number of persons eligible for access to classified information had grown to 5.1 million persons, including over 1.5 million with Top Secret clearances. According to an ODNI report, only 60% of those persons had access to classified information, suggesting that vastly more clearances are being requested and granted than are actually required.

A February 2014 report to the President from the Office of Management and Budget said the security clearance system had become too large and that it needed to be reduced.

“[The] growth in the number of clearance-holders increases costs and exposes classified national security information, often at very sensitive levels, to an increasingly large population,” said the OMB review.

Accordingly, the OMB recommended that the government “reduce [the] total population of 5.1M Secret and TS/SCI clearance holders to minimize risk of access to sensitive information and reduce cost.”

Eliminating the TS/SCI clearance requirement for access to the kitchens and dining rooms of government facilities might be a sensible place to start.

Food service at CIA headquarters, which has been managed by Sodexo, was the subject of some persnickety complaints from CIA employees that were recently disclosed through the Freedom of Information Act by MuckRock. (WaPo)

The Department of Defense revoked more than 19,000 existing security clearances from FY2009 through the first half of FY2013, DoD told Congress in a hearing record that was published earlier this month.