“The number of unaccompanied alien children arriving in the United States has reached alarming numbers that strain the system put in place over the past decade to handle such cases,” says a new report from the Congressional Research Service. See Unaccompanied Alien Children: An Overview, June 13, 2014.

Other new or newly updated CRS reports that Congress has withheld from online public distribution include the following.

Domestic Federal Law Enforcement Coordination: Through the Lens of the Southwest Border, June 3, 2014

The Evolution of Cooperative Threat Reduction: Issues for Congress, June 13, 2014

Taiwan: Major U.S. Arms Sales Since 1990, June 13, 2014

Iraq: Politics, Governance, and Human Rights, June 13, 2014

Proposed Transatlantic Trade and Investment Partnership (TTIP): In Brief, June 11, 2014

Foreign Holdings of Federal Debt, June 16, 2014

Access to Broadband Networks: The Net Neutrality Debate, June 12, 2014

Mongolia: Issues for Congress, June 17, 2014

People who voluntarily share information with a third party are not entitled to an expectation of privacy concerning that information under the so-called “third-party doctrine” that currently prevails in judicial interpretations of the Fourth Amendment to the Constitution.

The implications of the third-party doctrine are profound, a new report from the Congressional Research Service explains.

It “permits the government access to, as a matter of Fourth Amendment law, a vast amount of information about individuals, such as the websites they visit; who they have emailed; the phone numbers they dial; and their utility, banking, and education records, just to name a few.”

While the third-party doctrine comports well with other Fourth Amendment case law, CRS said, its continuing validity has lately come into question.

“Several events have precipitated renewed debates over its continued existence. First was the Supreme Court’s decision in the GPS tracking case, United States v. Jones…. Second was the Edward Snowden leaks relating to the National Security Agency’s telephone metadata program….”

“This report explores the third-party doctrine, including its historical background, its legal and practical underpinnings, and its present and potential future applications. It explores the major third-party doctrine cases and fits them within the larger Fourth Amendment framework. It surveys the various doctrinal and practical arguments for and against its continued application. Lastly, this report describes congressional efforts to supplement legal protection for access to third-party records, as well as suggesting possible future directions in the law.”

A copy of the new report was obtained by Secrecy News. See The Fourth Amendment Third-Party Doctrine, June 5, 2014.

Other new and updated CRS reports that Congress has withheld from online public distribution include the following:

Internet Governance and the Domain Name System: Issues for Congress, June 10, 2014

Internet Domain Names: Background and Policy Issues, June 10, 2014

EPA’s Proposed Greenhouse Gas Regulations for Existing Power Plants: Frequently Asked Questions, June 9, 2014

Federal Workforce Statistics Sources: OPM and OMB, June 10, 2014

Year-Round Schools: In Brief, June 9, 2014

Immigration: Visa Security Policies, June 9, 2014

U.S.-China Military Contacts: Issues for Congress, June 10, 2014

Guam: U.S. Defense Deployments, June 9, 2014

Navy Ship Names: Background For Congress, June 5, 2014

Far from being a subject of merely antiquarian interest, military history is an essential tool for training of soldiers and for institutional accountability, according to newly updated Army doctrine.

But only if it is done right.

In Military History Operations (ATP 1-20, June 2014), the Army discusses what military history is for, its development over time, and the proper way to produce it. Some excerpts:

“The history of Army operations and activities is not documented or written for public affairs purposes. It is not shaped to reflect particular viewpoints, programmatic goals, or institutional agendas. In the past, military organizations and commands exaggerated achievements of individuals, units, or systems while downplaying setbacks. Army field historians guard against these instances and ensure that historical documents, reports, and official histories reflect a full accounting of operations or institutional developments as they occur. Anything less is a disservice to the Soldiers and Army civilians whose actions are documented, those who must learn from them, and to the integrity of the Army as a whole.”

“History cannot be fabricated. Any fabrication corrupts tradition, professional education, and tradition. The integrity and standing of Army history, gained over nearly a century of recognized excellence, can be permanently damaged. The Army is best served by the careful and unbiased recording and analysis of the past. To prevent any potential damages from occurring, the collection, research, and writing of Army history is based on impartiality, objectivity, and accuracy.”

“Historical writing is clear, concise, organized, and to the point. Some historians fail to communicate well. They confuse rather than clarify, are wordy rather than concise, and hide main ideas rather than getting to the point. Good writers communicate in plain English and choose words with care to convey meaning. They avoid trite or vague phrases; stale figures of speech; jargon; acronyms; and pompous, high-sounding, and self-conscious literary language. Historical narratives are in active voice, use strong nouns and verbs, and include short vignettes to illustrate points or enliven the narrative. However, they should not embellish or glorify events or offer judgments of individuals or actions. The narrative recounts events as each one occurred.”

The new doctrine instructs Army historians to maintain awareness of captured enemy documents, and encourages them to seek out non-traditional and unofficial historical resources (like the private video and photographic images that were recently the subject of a classification complaint):

“Both official and unofficial photographs and video imagery enhances historical document collections and [are] included in historical document collections. Combat camera teams and public affairs photographers take official photographs and video imagery and provide copies to command and unit historians or military history detachments (MHD). Additionally, many Soldiers carry digital cameras, video recorders, or mobile phones with cameras and video capabilities. The field historian searches for unofficial photographs and videos of potential historical value. This search includes accessing social media sites, personal blogs, and photo-sharing sites.”

“Military history does not produce solutions for problems and does not guarantee success on the battlefield. An approach with these goals leads to frustration and biased or inaccurate history. Rather, military history affords an understanding of the dynamics to shape the present and [provides] soldiers the perspective of viewing current and future problems with ideas of how similar challenges were confronted in the past.”

“If history rarely provides concrete answers, it offers insight and understanding. It promotes how to think and not what to think,” the Army publication said.

Is there any act of overclassification that is so egregious that the classifier would be held accountable for abusing his classification authority?

The answer is unknown, since no one has ever been held accountable in such a case.

As far as can be determined, no classifier has ever been found to have willfully or culpably defied the rules set forth in the President’s executive order on national security classification.

In a complaint filed last year with the Information Security Oversight Office (ISOO), a Marine Corps officer argued that private video recordings and related “trophy images” including one depicting Marines urinating on human remains in Afghanistan had been classified in violation of the executive order.

Major James W. Weirick asked ISOO Director John F. Fitzpatrick to render a judgment that the urination video and related images had been improperly classified. Among other reasons, Major Weirick wrote that they originated as private documents, that one video had been posted online and that all were outside of the control of the U.S. Government, a prerequisite for classification.

“This video was captured on a personal video recorder and only became known to the U.S. Government after it surfaced on YouTube, and other media outlets, in January 2012. The Government could never account for all the copies of this information and made no attempt to account for this information,” Major Weirick wrote in his November 14, 2013 complaint.

In a May 30 response, ISOO Director John P. Fitzpatrick said he took the complaint seriously and that he had undertaken a review of the matter, but that he ultimately decided that it did not require corrective action.

Mr. Fitzpatrick “met with all USMC officials directly involved in the decision to classify” as well as with Major Weirick. He determined that the video that had been uploaded to YouTube had in fact been specifically excluded from the original classification decision (although dozens of other, similar videos and photographs were classified).

“I spoke at length with the original classification authority (OCA) who made the classification decision. I am convinced that the primary motivation for the classification decision was the safety of U.S. military personnel in Afghanistan and the protection of specific tactics, techniques, procedures, and equipment,” Mr. Fitzpatrick wrote in his May 30, 2014 response to Major Weirick.

J. William Leonard, who was Mr. Fitzpatrick’s predecessor as ISOO Director, expressed dismay at the ISOO decision not to pursue the matter further.

He said that the classified images could not be properly classified because they were not under effective or exclusive U.S. government control. “The USG had control of copies of the images, but not the images themselves,” which had been freely and informally exchanged for months. “The same rationale that applied to not classifying the YouTube video also applied to the other images as well since there were undoubtedly other copies beyond the government’s control.”

“Even if you accepted the claim regarding the need to protect sensitive TTP [tactics, techniques and procedures], the troubling claim of both USMC and ISOO is that it was entirely appropriate to classify images and video that depicted nothing more than Marines posing with corpses, i.e. the ‘trophy’ photos.  Such photos depicted nothing more than unlawful conduct in a war zone,” Mr. Leonard said.

“I am extremely concerned that the integrity of the classification system continues to be severely undermined by the complete absence of accountability in instances such as this clear abuse of classification authority,” Mr. Leonard wrote in an endorsement of Major Weirick’s complaint.

“The provisions of the [executive] order establishing accountability are more feckless than the 55 mph speed limit on the Capital Beltway,” Mr. Leonard said. “At least on the Beltway, if you go fast enough you’ll eventually get a ticket. In the classification system, by virtue of never holding anyone or any agency accountable for abusing the system, we really don’t know how far you can go.”

    *    *    *

A 2012 classification guide issued by U.S. Central Command authorizes classification of information if its disclosure would “embarrass any Coalition members” (at pp. I-4 to I-5).

This provision appears to be inconsistent with Executive Order 12356, Section 1.7, which states: “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: […] prevent embarrassment to a person, organization, or agency.”

In January 2008, the Bush Administration issued the Top Secret National Security Presidential Directive 54 on Cybersecurity Policy which “establishes United States policy, strategy, guidelines, and implementation actions to secure cyberspace.”

Despite its relevance to a central public policy issue, both the Bush and Obama Administrations had refused to release the Directive.

But last week, in response to a five-year Freedom of Information Act effort by the Electronic Privacy Information Center, the National Security Agency released a lightly redacted version of the document, most of which had been unclassified all along.

“This Directive, which is the foundational legal document for all cybersecurity policies in the United States, evidences government efforts to enlist private sector companies, more broadly monitor Internet activity, and develop offensive cybersecurity capability,” said EPIC in its release of the document.

In 2012, the number of newly created national security secrets (or “original classification decisions”) dropped by a startling 42% from the year before, according to the Information Security Oversight Office. It was the largest annual drop ever reported by ISOO, yielding the lowest annual production of new secrets since such numbers began to be collected in 1979. (Secrecy System Shows Signs of Contraction, Secrecy News, June 25, 2013).

Now it seems that this 2012 decline in the production of new secrets was not merely a fluke, but perhaps the start of a trend. The latest ISOO annual report indicates that in 2013 the number of reported new secrets continued to decline by an additional 20% to 58,794 original classification decisions, another new record low.

For the first time in a decade, the number of “derivative classification decisions” in which previously classified information is incorporated into new records also declined in 2013, ISOO reported.

“Agencies reported a total of 80.12 million derivative classification decisions in FY 2013, a decrease of 16 percent from FY 2012. Although we can not pinpoint a single cause for this decrease, we do know it was due in part to the refinement and correction of estimation practices employed by some agencies. Other possible contributing factors could be the recent emphasis on proper classification procedures coming from the expanded agency self-inspection requirements, the inspector-general reviews conducted in response to the Reducing Over-Classification Act, and the Fundamental Classification Guidance Reviews that all agencies conducted in 2012,” the ISOO report said.

The Information Security Oversight Office, housed at the National Archives, reports to the President of the United States on national security classification policy and oversees the operation of the classification system.

Intelligence community whistleblowers would have been able to submit their complaints to the Privacy and Civil Liberties Oversight Board (PCLOB) under a proposed amendment to the intelligence authorization act that was offered last week by Rep. Tulsi Gabbard (D-HI).

This could have been an elegant solution to the whistleblowing conundrum posed by Edward Snowden. It made little sense for Snowden to bring his concerns about bulk collection of American phone records to the congressional intelligence committees, considering that they had already secretly embraced the practice.

The PCLOB, by contrast, has staked out a position as an independent critical voice on intelligence policy. (And it has an unblemished record for protecting classified information.) The Board’s January 2014 report argued cogently and at length that the Section 215 bulk collection program was likely unlawful as well as ineffective.

In short, the PCLOB seemed like a perfect fit for any potential whistleblower who might have concerns about the legality or propriety of current intelligence programs from a privacy or civil liberties perspective.

But when Rep. Gabbard offered her amendment to the intelligence authorization act last week, it was not voted down– it was blocked. The House Rules Committee declared that the amendment was “out of order” and could not be brought to a vote on the House floor.

Several other amendments on transparency issues met a similar fate. These included a measure proposed by Rep. Adam Schiff to require reporting on casualties resulting from targeted killing operations, a proposal to disclose intelligence spending at the individual agency level, and another to require disclosure of the number of U.S. persons whose communications had been collected under FISA, among others.

In dismay at this outcome, Rep. Rush Holt (D-NJ) and I lamented the “staggering failure of oversight” in a May 30 op-ed. See The House Committee on Intelligence Needs Oversight of Its Own, MSNBC.

The House did approve an amendment offered by Rep. John Carney (D-DE) to require the Director of National Intelligence “to issue a report to Congress on how to improve the declassification process across the intelligence community.” While the DNI’s views on the subject may indeed be of interest, the amendment failed to specify the problem it intended to address (erroneous classification standards? excessive backlogs? something else?), and so it is unclear exactly what is to be improved.

However, a more focused classification reform program may be in the works.

Rep. Bennie Thompson (D-MS), the ranking member of the House Homeland Security Committee, said that he would introduce “a comprehensive security clearance reform bill” that would also address the need to shrink the national security classification system.

The Thompson bill, which is to be introduced “in the coming weeks,” would “greatly expand the resources and responsibilities of the Public Interest Declassification Board,” Rep. Thompson said during the House floor debate on the intelligence bill on May 30.

“A well-resourced and robust Board is essential to increasing accountability of the intelligence community,” he said.

The population of Syria is 17,951,639, according to the CIA World Factbook.

That figure (oddly identified as a “July 2014” estimate) is wrong, according to everyone else.

The discrepancy was noted yesterday in the intelligence newsletter Nightwatch.

“NightWatch consulted six separate sources for the total population of Syria. They agreed that it is between 22 and 23 million people, not 17.9 million as indicated in the CIA World Factbook. There are about 7 million Syrians under voting age of 18 and more than 15 million registered voters,” the newsletter said.

“NightWatch relies on the CIA World Factbook as a standard reference for unclassified factual, baseline information, as does the Intelligence Community. On three occasions since 2006, NightWatch has found errors in the Factbook,” the newsletter added. “This was the third occasion.”

A Congressional Research Service report last month also cites a total Syrian population of “more than 22 million.”

Errors, of course, are to be expected– even, and especially, in intelligence publications. One great virtue of the CIA World Factbook is that it is a public document. This makes it possible for readers to identify such errors, to draw attention to them, and to promote their correction.

The Department of Defense prepares and trains for military operations in environments in which communications and surveillance are denied or obstructed, a new report to Congress says.

Combatant commanders “spend many man-hours… developing frameworks and procedures for using alternative methods, diversifying communications paths and media, and pursuing the ability to use distributed operations in a denied environment.”

The issue was summarily addressed in a mandatory report to Congress on “Joint Strategy for Readiness and Training in a Command, Control, Communications, Computers, Intelligence, Surveillance, and Reconnaissance (C4ISR) Denied Environment.” The brief, unclassified report was transmitted to Congress in February 2014 and released under the Freedom of Information Act this week.

Somewhat relatedly, a declassified 1971 memorandum from the National Reconnaissance Office addressed the subject of “avoidance of coorbital intercept,” or anti-anti-satellite operations.

The subject was highly sensitive at the time. “Any action on our part which demonstrates the possibility that we possess the ability to evade a coorbital intercept… is potentially compromising of the great efficacy of U.S. satellite collection capability in this area.”

Unrelatedly, but notably, the Federal Judicial Center has published a compilation of “protective orders” that were issued by courts in national security criminal cases, including espionage trials and leak cases, over the past 15 years.  See National Security Prosecutions: Protective Orders, April 2014.

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

Defense Acquisitions: How DOD Acquires Weapon Systems and Recent Efforts to Reform the Process, May 23, 2014

Defense Acquisition Reform: Background, Analysis, and Issues for Congress, May 23, 2014

U.S. Air Force Bomber Sustainment and Modernization: Background and Issues for Congress, June 4, 2014

The Number of Veterans That Use VA Health Care Services: A Fact Sheet, June 3, 2014

Federal Research and Development Funding: FY2015, June 2, 2014

U.S. Circuit and District Court Nominations: Senate Rejections and Committee Votes Other Than to Report Favorably, 1939-2013, May 29, 2014:

Corporate Expatriation, Inversions, and Mergers: Tax Issues, May 27, 2014

Federal Building and Facility Security: Frequently Asked Questions, May 28, 2014

Deployable Federal Assets Supporting Domestic Disaster Response Operations: Summary and Considerations for Congress, May 16, 2014

The Presidential Records Act: Background and Recent Issues for Congress, May 30, 2014

Egypt: Background and U.S. Relations, June 5, 2014

Of the many lessons to be learned from the unauthorized disclosures of classified intelligence information by Edward Snowden, one of them is that the congressional intelligence oversight process did not function properly in the years leading up to those disclosures.

It seems indisputable that the intelligence oversight committees did not accurately comprehend or effectively represent the full spectrum of public concern over intelligence surveillance practices. Had they done so, current efforts to limit or revise those practices would have been unnecessary.

But in its new report on the intelligence authorization act for Fiscal Years 2014 and 2015, the House Permanent Select Committee on Intelligence (HPSCI) does not pause for any kind of reflection, let alone self-criticism. It does not inquire why the intelligence oversight process has seemed inhospitable to the kinds of public concerns that emerged in Snowden’s wake. It does not consider whether the Committee’s own practices need to be altered to provide for greater public engagement. It does not even mention Snowden’s name, referring instead to “a former NSA contractor.”

Rather, the new intelligence bill’s primary response to the Snowden episode is to increase the rigor and intensity of current personnel security practices.

“Over the past year, massive unauthorized disclosures of classified intelligence information caused immense damage to our national security. The Intelligence Community might have been able to prevent those unauthorized disclosures if it continuously evaluated the backgrounds of employees and contractors,” the House Committee report asserted.

“Continuous evaluation allows the IC to take advantage of lawfully available government and public information to detect warning signals that the current system of five-year periodic reinvestigation [for renewal of security clearances] misses. That information may include: foreign travel; reports of foreign contacts; financial disclosure information; checks of criminal, commercial marketing, and credit databases; and other appropriate publicly available information,” the report said.

But the Committee did not explain how closer scrutiny of any of these categories of information could have prevented the Snowden disclosures. If Snowden is neither a spy nor in search of financial gain, then none of these factors would have assisted in anticipating or preventing his actions, and an altogether different type of response would be needed.  But the Committee was not prepared to consider that possibility.

The new House Committee report includes several other noteworthy features:

*  “The Committee’s concerns about insufficient intelligence funding… are exacerbated by the great expense necessary to remediate the damage from illegal disclosures of classified information.”

*  The House bill would require declassification review of documents collected in the May 2011 Abbottabad, Pakistan mission that killed Osama bin Laden.

*  The bill would elevate the Inspector General of the National Security Agency, making the position subject to presidential appointment and Senate confirmation.

*  The bill would require the President to establish a written plan for how to respond to an unauthorized disclosure of a covert action program.

*  The bill would require the Director of National Intelligence to submit an annual report to Congress on violations of law or executive order by Intelligence Community personnel.

A new report from the Congressional Research Service “provides an analytic overview of the professional experiences and qualifications of those individuals who are currently serving as active U.S. circuit court judges.” See U.S. Circuit Court Judges: Profile of Professional Experiences Prior to Appointment, May 9, 2014.

Other recently updated CRS reports include these:

Deepwater Horizon Oil Spill: Recent Activities and Ongoing Developments, May 12, 2014

Teenage Pregnancy Prevention: Statistics and Programs, May 16, 2014

Cybersecurity: Authoritative Reports and Resources, by Topic, May 22, 2014