“Without accurate and predictive intelligence, it is often better to not act than to act.”

That note of prudence and restraint recurs throughout the newly revised U.S. Army Field Manual 3-24 on “Insurgencies and Countering Insurgencies” that was published this month.

The new manual replaces the celebrated 2006 edition of FM 3-24 (then simply entitled “Counterinsurgency”) associated with Gen. David Petraeus, who coordinated its development.  That earlier manual may have been the most popular and widely read U.S. military doctrinal publication ever released.

The new edition builds upon rather than rescinds its predecessor. Some of the changes are subtle, extending even to the definition of “insurgency.”

The 2006 edition defined insurgency as “An organized movement aimed at the overthrow of a constituted government through the use of subversion and armed conflict.” In the new edition, insurgency now means “The organized use of subversion and violence to seize, nullify, or challenge political control of a region.” The reference to a government has been removed in the new definition, and insurgency is conceived as a tactic rather than a movement.

To a lay reader, the new Field Manual presents a becoming modesty about the utility of violent action, along with a sensitivity to the specifics of every conflict, and an alertness to ethical norms and legal requirements. A few excerpts:

“The conclusion of any counterinsurgency effort is primarily dependent on the host nation and the people who reside in that nation. Ultimately, every society has to provide solutions to its own problems. As such, one of the Army and Marine Corps’ primary roles in counterinsurgency is to enable the host nation.”

“The general rule for the use of force for the counterinsurgents is ‘do not create more enemies than you eliminate with your action’.”

“Effective counterinsurgency commanders tell the truth; they refuse to give projections; and they do not promise more than can be provided.”

“Although most well-led and well-trained U.S. military personnel perform their duties honorably and lawfully, some will commit various crimes, including violations of the law of war…. All reportable incidents committed by or against U.S. personnel, enemy persons, or any other individual must be reported promptly, investigated thoroughly, and, where appropriate, remedied by corrective action.”

Remarkably, the Army invited external input in 2011 from the public (or at least from “practitioners, scholars, and agency partners”) in the development of the revised Field Manual.

The new manual, like the previous one, has drawn criticism in some quarters for emphasizing the role of soft power at the expense of lethality and traditional warfighting.

“The 2014 FM hurtles down the wrong track,” wrote former Reagan defense official Bing West. “It offers no advice about resolve, cohesion, morale, ferocity, trust and victory…. If we cannot put our enemies six feet in the ground and infuse that same fierce, implacable, winning spirit into the host nation forces, friendly persuasion and development aid will be seen by our enemies as weakness and fecklessness,” he wrote in Small Wars Journal on May 14.

But perhaps the severest criticism of U.S. counterinsurgency doctrine derives from actual record of counterinsurgency programs. The continuing violence and instability in Iraq and Afghanistan would seem to indicate that existing counterinsurgency doctrine is either misconceived or that, for whatever reason, it cannot be effectively implemented.

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

Nigeria’s Boko Haram: Frequently Asked Questions, May 20, 2014

The Lord’s Resistance Army: The U.S. Response, May 15, 2014

Libya: Transition and U.S. Policy, May 19, 2014

U.S. International Broadcasting: Background and Issues for Reform, May 2, 2014

U.S. Foreign Trade in Services: Trends and U.S. Policy Challenges, May 15, 2014

Veterans’ Medical Care: FY2015 Appropriations, May 15, 2014

U.S. Strategic Nuclear Forces: Background, Developments, and Issues, May 15, 2014

Navy TAO(X) Oiler Shipbuilding Program: Background and Issues for Congress, May 14, 2014

Generalized System of Preferences: Background and Renewal Debate, May 19, 2014

Domestic Human Trafficking Legislation in the 113th Congress, May 19, 2014

The European Parliament, May 19, 2014

China and the United States — A Comparison of Green Energy Programs and Policies, April 30, 2014

The Central Intelligence Agency today asked a court to allow more time to declassify its response to the Senate Select Committee on Intelligence report on CIA rendition, detention and interrogation (RDI) activities, which itself is undergoing a time-consuming declassification review.

“This complex process requires the careful review of over 500 pages of highly classified material. In addition, sufficient time must be allowed not only for coordination with other agencies, but — after completion of declassification review — for implementation of security measures to ensure the safety of U.S. personnel and facilities overseas,” according to a May 15 motion filed by the government in a FOIA lawsuit brought by the ACLU.

“Due to the fluid nature of this process, aspects of which are beyond the CIA’s control, the Agency does not yet have a firm date by which it can complete the processing of the CIA Response [to the SSCI report] and the so-called Panetta Report, although it hopes the declassification review and accompanying processing of those documents can be completed this summer.”

The CIA therefore requested an extension of time to respond, to which the ACLU plaintiffs did not consent.

With respect to the Senate Intelligence Committee report itself, the government promised an “expeditious” declassification review of the executive summary, findings, and conclusions.

“While all declassification decisions are guided by the need to protect national security interests, the President has expressed a clear intent to declassify as much of the executive summary, findings, and conclusions of the SSCI Report as possible, and intends the declassification process to be expeditious,” the government motion said.

According to an April 18 letter from then-White House counsel Katherine Ruemmler, appended to the new motion, “The President supports making public the Committee’s important review of the historical RDI program, as he believes that public scrutiny and debate will help to inform the public understanding of the program and to ensure that such a program will not be contemplated by a future administration.”

“Emerging Intelligence Technologies” is the theme of the latest issue of the U.S. Army’s Military Intelligence Professional Bulletin (MIPB), January-March 2014.

“Rapid technology developments in response to urgent wartime requirements have brought the intelligence community (IC) some tremendous new capabilities. Advancement in the areas of biometrics, battlefield forensics, miniaturization, SIGINT terminal guidance, DCGS-A, and distributed processing have been vital to the success of Military Intelligence (MI) and the Army,” wrote Maj. Gen. Robert P. Ashley.

“This issue of MIPB looks at several of these capabilities and their integration into our formations.”

The new Bulletin was obtained under the Freedom of Information Act.

“Drug trafficking, a long-standing feature of Afghanistan’s post-Taliban political economy, is linked to corruption and insecurity, and provides a source of illicit finance for non-state armed groups,” says a new report from the Congressional Research Service.

“Based on recent production and trafficking trends, the drug problem in Afghanistan appears to be worsening,” the CRS report found. See Afghanistan: Drug Trafficking and the 2014 Transition, May 9, 2014.

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

Navy LX(R) Amphibious Ship Program: Background and Issues for Congress, May 12, 2014

How Social Security Benefits Are Computed: In Brief, May 12, 2014

Airport Privatization: Issues and Options for Congress, May 12, 2014

Body Armor for Law Enforcement Officers: In Brief, May 13, 2014

“Recent media reports have misconstrued ODNI’s policy for pre-publication of information to be publicly released,” according to a May 9 statement that was issued by the Office of the Director of National Intelligence.

The ODNI policy had been described in articles published in Secrecy News (ODNI Requires Pre-Publication Review of All Public Information, May 8) and in the New York Times (Intelligence Policy Bans Citation of Leaked Material by Charlie Savage, May 8).

ODNI said that the new pre-publication review policy was basically a consolidation of two previous policies (ODNI Instruction 80.14/2007-6, July 25, 2007, and ODNI Instruction 80.04, August 5, 2009) and that it represented nothing very new.

“The revised policy is not significantly different from the two previous policies,” the new ODNI statement asserted.

But that assertion is hard to understand, since the text of the revised policy appears significantly different from its predecessors in several respects.

First and foremost, the previous policies focused on protection of classified information, while the revised policy casts a much broader net.

“Pre-publication review is intended to prevent the disclosure of classified information,” according to the 2007 Instruction (emph. added).  Likewise, according to the 2009 Instruction, “Pre-publication review of material prepared for official dissemination is intended to prevent the disclosure of classified information.”

By unmistakeable contrast, however, the newly revised policy extends to all intelligence-related information, whether classified or not:

“The goal of pre-publication review is to prevent the unauthorized disclosure of information.”

That seems like a fairly significant difference.

Similarly, the 2007 Instruction presented a clear-cut “standard for review” applicable to former ODNI staff and contractors that is missing in the revised policy:

“Material proposed for publication or public dissemination will be reviewed solely to determined whether it contains any classified information,” the 2007 Instruction said.

No such limitation exists in the revised policy, which also includes review of unclassified information that may be “otherwise sensitive.”

Another significant difference pertains to informal interactions with the press and the public, which now appear to be far more constrained than they were in the past.

Thus, the 2007 Instruction said that “In informal situations where no prepared remarks are delivered” and which therefore cannot be reviewed in advance, “each individual… is responsible for remaining within the guidelines provided above.”

But the new policy, as written, no longer permits the use of an employee’s individual judgment or sense of responsibility in such situations.

“ODNI personnel expecting to engage in unstructured or free-form discussions… must prepare an outline of the topics to be discussed or the agenda to be followed…” to be submitted for official review.

The ODNI statement that was issued on May 9 asserted that this peremptory requirement was actually more flexible than it appeared:

“It is understood that there are times that former employees may receive calls for comment from the media, and there simply is not time to follow the pre-publication review process.”

However, the text of the new ODNI Instruction does not include any allowance for cases when “there simply is not time to follow the pre-publication review process.”  It says the process “must” be followed, without exception.

Moreover, “Failure to comply with this Instruction may result in the imposition of civil and administrative penalties, and may result in the loss of security clearances and accesses.”

By introducing such uncertainty (and danger) into ordinary contacts with the public and the press, ODNI is likely to discourage its employees from any contact — or to drive them into anonymity — and to encourage public cynicism, while further impoverishing public discourse on intelligence policy.

A superior approach would be to simply say that all ODNI employees are obliged to fulfill the terms of the non-disclosure agreements that they signed, and to leave it at that.

The May 9 ODNI statement was first obtained by Marty Lederman and published by him on the Just Security blog. ODNI then made it available. Charlie Savage reviewed the situation in Memo Revisits Policy on Citing Leaked Material, to Some Confusion, New York Times, May 9.

 

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

Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges, May 5, 2014

Unauthorized Aliens in the United States: Policy Discussion, May 8, 2014

Apprehensions of Unauthorized Migrants along the Southwest Border: Fact Sheet, May 2, 2014

FEMA’s Disaster Relief Fund: Overview and Selected Issues, May 7, 2014

Central America Regional Security Initiative: Background and Policy Issues for Congress, May 6, 2014

Libya: Transition and U.S. Policy, May 8, 2014

Ukraine: Current Issues and U.S. Policy, May 8, 2014

U.S. Special Operations Forces (SOF): Background and Issues for Congress, May 8, 2014

Jordan: Background and U.S. Relations, May 8, 2014

Armed Conflict in Syria: Overview and U.S. Response, May 5, 2014

Federal Holidays: Evolution and Current Practices, May 9, 2014

Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony, May 8, 2014

All employees of the Office of the Director of National Intelligence are required to obtain authorization before disclosing any intelligence-related information to the public.

“All ODNI personnel are required to submit all official and non-official information intended for public release for review,” says ODNI Instruction 80.04 on “Pre-publication Review of Information to be Publicly Released.”  The Instruction was newly updated on April 8.

Like the new Intelligence Community policy on Media Contacts (Intelligence Directive Bars Unauthorized Contacts with News Media, Secrecy News, April 21), the ODNI pre-publication review policy does not distinguish between classified and unclassified information.

“The goal of pre-publication review is to prevent the unauthorized disclosure of information,” the Instruction says, whether the information is classified or not. It applies broadly to any information generated by ODNI “that discusses operations, business practices, or information related to the ODNI, the IC, or national security.”

The Instruction is binding on current and former ODNI employees, as well as contractors.

Since it pertains to “information” and not just documents, the Instruction also requires employees to gain approval prior to participation in “open discussion venues such as forums, panels, round tables, and question and answer sessions.”

“Pre-publication review must be conducted before any uncleared personnel can receive the information,” the Instruction states.

In order to support a request for pre-publication review, requesters are advised to provide unclassified sources for their proposed disclosures. “ODNI personnel must not use sourcing that comes from known leaks, or unauthorized disclosures of sensitive information.”

Official disclosures by ODNI employees must be reviewed by the ODNI Public Affairs Office to ensure that they are “consistent with the official ODNI position or message.” (Unofficial disclosures, such as privately-authored books, op-eds or blogs are exempt from this consistency requirement.)

The pre-publication review requirement is not optional.

“Failure to comply with this Instruction may result in the imposition of civil and administrative penalties, and may result in the loss of security clearances and accesses.”

The newly updated Instruction will no doubt inhibit informal contacts between ODNI employees and members of the general public, as it is intended to do. Whether that is a wise policy, and whether such indiscriminate barriers to the public serve the real interests of ODNI and the U.S. intelligence community, are separate questions.

Update: ODNI recently published a heavily redacted version of Intelligence Community Directive 304 on “Human Intelligence” (ODNI Seeks to Obscure CIA Role in Human Intelligence, Secrecy News, April 28).

Those redactions were a mistake, an ODNI official said yesterday. The full, unredacted text of the Directive was posted this week on the ODNI website.

The ongoing transition to electronic storage of individual health information was examined in a newly released study from the JASON scientific advisory panel.

“The two overarching goals of moving to the electronic exchange of health information are improved health care and lower health care costs. Whether either, or both, of these goals can be achieved remains to be seen, and the challenges are immense,” the JASON study says.

See A Robust Health Data Infrastructure, prepared for the Department of Health and Human Services, November 2013 (approved for release April 2014).

The JASON study addresses the tension between personal health information, which is “sensitive and therefore must be carefully safeguarded,” and aggregated population health data, which are “a highly valuable, and largely untapped, resource for basic and clinical research.”

“It is in the public interest to make such [aggregated population] information available for scientific, medical, and economic purposes.” Reconciling these competing imperatives of privacy and information sharing is one of the challenges to be overcome.

The JASONs, who normally deal with defense science and technology, strain to affirm a relationship between health and national security. (“From a national security perspective it is important to have an accurate assessment of the current health and potential health vulnerabilities of the population.”)

Interestingly, they suggest that because the United States is less ethnically homogenous than many other countries, it “has a special advantage” in conducting certain types of medical research.

The U.S. “is a genetic melting pot that can be a crucible for discoveries related to personalized medicine and the genetic basis of disease,” the JASONs said.

When government employees believe that classified information in their possession is improperly classified, they “are encouraged and expected” to challenge its classification status, according to President Obama’s executive order 13526 (section 1.8).  And sometimes they do.

In Fiscal Year 2012, there were 402 classification challenges filed by government employees. One third of them were granted in whole or in part, according to statistics published by the Information Security Oversight Office.

Such classification challenges have the potential to serve as a powerful internal check on over-classification. But that potential is not yet being fully realized, either because the procedure is unknown to employees or because its use is implicitly discouraged.

“We found that many DOJ officials were unaware of DOJ’s formal classification challenge process,” according to a 2013 Department of Justice Inspector General report.

At the Department of Defense, “few instances were encountered where interviewees challenged a classification,” a DoD IG report said. Although DoD guidance “provides for classification challenges, it does not reflect the intent of E.O. 13526 which states that such challenges are ‘encouraged’.”

By contrast, at the Department of Homeland Security, “DHS senior management we interviewed believes that challenging the classification status of information is part of an employee’s job.” Furthermore, a DHS IG review found, the Department “honors a challenger’s request for anonymity and serves as his or her agent in processing the challenge. DHS has a secure capability to receive information, allegations, or classification challenges.”

The provision for classification challenges in the executive order can only be invoked by authorized holders of the information. Members of the general public cannot file such challenges. Although a member of the public may request declassification review of a particular document under existing standards, he or she is not empowered to dispute the validity of those standards or to challenge the classification status of an entire topical area.

One partial exception to this rule is a Department of Energy regulation in 10 C.F.R. 1045.20 that invites the public to propose the declassification of particular items of information classified under the Atomic Energy Act.

Last June 30, the Federation of American Scientists filed such a petition seeking declassification of “the total size of the U.S. nuclear stockpile and the number of weapons dismantled annually as of the end of each fiscal year from FY 2010 through FY 2013.”

We filed the petition after the Department of Defense refused to release the requested data. Requests for current stockpile information were denied even though — in a major departure from prior government secrecy policy — the Obama Administration in May 2010 had disclosed annual stockpile figures for previous years up through FY 2009. (See Pentagon Reverts to Nuclear Stockpile Secrecy, Secrecy News, July 1, 2013.)

So invoking DOE regulation 10 CFR 1045.20, we asked for reconsideration of this refusal. It is apparently the first time that the DOE regulation has ever been employed by a public petitioner since the provision was adopted in the 1990s.

On April 29, the requested information was disclosed in a State Department Fact Sheet. It reported a stockpile total of 4,804 warheads in September 2013, down from the last published figure of 5,113 in September 2009.

(Hans Kristensen of FAS expressed disappointment at the slow pace of stockpile reductions in recent years here. The Government Accountability Office noted ambiguities in the counting of dismantled warheads here.)

Although the release matched our request, providing neither more nor less information than we asked for, that was merely “serendipitous,” said a US government official. The FAS petition was “not a major driver” of the declassification process, he said. “The White House wanted to get this done all along.”

That may be so. (Although if the White House wanted it disclosed all along, it’s not clear why this information was actively withheld each year for the past four years.)

In any case, the DOE regulation inviting public proposals for declassification is assuming new importance. It now serves as a designated feeder to a new interagency review process for declassification of so-called Formerly Restricted Data (FRD), which is a category of information classified under the Atomic Energy Act.

At least one new petition for declassification has recently been submitted by the National Security Archive, we have another one in the works, and increased public use of the procedure is anticipated.

The DOE regulation extends the power of classification challenges to members of the public. As such, it represents a “best practice” that could usefully be replicated in other agencies, and in the context of national security information generally (not just nuclear matters).

Of course, the key to a successful classification challenge is that it must be reviewed impartially by someone other than the original classifier.

 

Government officials disclose classified information to the press with some frequency, but only rarely are they prosecuted for it.

Such selective prosecution renders the law unfair, said attorney Abbe Lowell at the April 2 sentencing hearing of his client, Stephen Kim, who pled guilty to an unauthorized disclosure of classified information.

Mr. Kim, a former State Department Korea specialist who could have been sentenced to 10 years in prison and a fine of $250,000, received a 13 month jail sentence. The transcript of the April 2 sentencing hearing is now available here.

The fact that senior officials go unpunished for comparable or greater offenses “doesn’t mean that Mr. Kim didn’t violate the law,” said Mr. Lowell. But “it means that our system is out of balance.”

The “antiquated” Espionage Act that is used to prosecute leaks is “one very blunt tool,” Mr. Lowell said.

Still, “There’s some good that can come from this case,” Mr. Lowell suggested. He noted that it had already led the Department of Justice to revise its policy and practice on investigating or charging members of the news media.

In other leak-related news, the Obama Administration argued that there is no privilege that would excuse New York Times reporter James Risen from testifying in court as to the identity of the source who provided him with classified information. In an April 25 brief, the Administration asked the U.S. Supreme Court to reject Mr. Risen’s petition to review the matter.

Meanwhile, former Navy linguist James Hitselberger, who had been charged under the Espionage Act with unlawful retention of national defense information (18 USC 793e), pleaded guilty on April 25 to a lesser offense of unauthorized retention of classified information (18 USC 1924), which carries a sentence of up to one year in prison. He is to be sentenced on July 17. (More from Josh Gerstein in Politico.)

For many years, the Justice Department’s annual report to Congress on the use of the Foreign Intelligence Surveillance Act was a primary source of public information on intelligence surveillance activity and on the workings of the Foreign Intelligence Surveillance Court. Today, that is less true than ever before.

The latest annual report, released by DOJ yesterday, indicated that in 2013 the Government submitted 1,655 applications for electronic surveillance, physical search or both. Of the 1,588 applications that included electronic surveillance, none were denied by the Court. But that hardly provides an accurate sense of the scope or the scale of intelligence surveillance activity.

The significance of this information, and other statistical data on access to “business records” and the use of national security letters, has receded in the wake of the far more substantial disclosures of the post-Snowden era. For example, we now know that the bland term “business records” extends in principle to everyone’s telephone call records.

In truth, the annual DOJ reports to Congress were never very informative, and they never provided useful data that could inform public policy in a practical way. They represented a facade of transparency with little or no real content. Today, they are practically irrelevant.

More informative and altogether more important is the new website of the Foreign Intelligence Surveillance Court, which has recently been revamped.