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

Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments, April 1, 2014

Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview, March 31, 2014

The Debate Over Selected Presidential Assistants and Advisors: Appointment, Accountability, and Congressional Oversight, March 31, 2014

Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis, March 28, 2014

Unlawfully Present Aliens, Driver’s Licenses, and Other State-Issued ID: Select Legal Issues, March 28, 2014

Regulation of Clinical Tests: In Vitro Diagnostic (IVD) Devices, Laboratory Developed Tests (LDTs), and Genetic Tests, March 27, 2014

EPA and the Army Corps’ Proposed Rule to Define “Waters of the United States”, March 27, 2014

The Volcker Rule: A Legal Analysis, March 27, 2014

Foreign Assistance to North Korea, April 2, 2014

Classified design drawings used in the manufacture of nuclear weapons have not been properly and reliably maintained by nuclear weapons labs managed by the National Nuclear Security Administration (NNSA), the Department of Energy Inspector General said in a report last week.

“NNSA sites could not always locate as-built product definitions or associated drawings for nuclear weapons and components in official records repositories.” At the Pantex Plant, “officials were concerned and surprised at the difficulty in finding as-built product definitions for the nuclear weapons,” the DoE IG report said.

At Los Alamos, the information system “allowed changes to classified nuclear weapons drawings without using an approved change notice. This practice could permit unauthorized changes to weapons drawings.” Questioned about undocumented changes to a particular weapon drawing, “officials were unable to explain why changes were made, but told us that they ‘assumed’ the changes were needed.”

“Over the decades of nuclear weapons development, neither NNSA nor its sites treated the maintenance of original nuclear weapons… information as a priority,” wrote DoE Inspector General Gregory Friedman.

“Not having complete and accurate [weapon production] information can have significant effects on surveillance and safety, and can lead to time-consuming and expensive recovery efforts.” See National Nuclear Security Administration Nuclear Weapons Systems Configuration Management, Audit Report DOE/IG-0902, March 26, 2014.

“NNSA is on a trajectory towards crisis,” said Norman Augustine, the venerable engineer and aerospace executive who serves as co-chair of the Congressional Advisory Panel on the Governance of the Nuclear Security Enterprise.

“The ‘NNSA experiment’ involving creation of a semi-autonomous organization [within the Department of Energy] has failed,” he said.

NNSA “has lost credibility and the trust of the national leadership and customers in DOD that it can deliver needed weapons and critical nuclear facilities on schedule and on budget,” Mr. Augustine said. He spoke at a March 26 briefing for the House Armed Services Committee.

The problems are not entirely attributable to NNSA itself, he said, but are due in part to an eroding consensus concerning the role of nuclear weapons in national security policy.

“At the root of the challenges are complacency and the loss of focus on the nuclear mission by the Nation and its leadership following the end of the Cold War,” Mr. Augustine said.

He cited “the absence of a widely accepted understanding of, and appreciation for, the role of nuclear weapons and nuclear technology in the 21st century, with the resultant well-documented and atrophied conditions of plans for our strategic deterrent’s future– in DOD as well as in DOE.”

The decision by the Central Intelligence Agency to terminate public access to its translations of foreign news reports at the end of 2013 continues to reverberate among frustrated former consumers.

The translations had been performed by the Open Source Center (OSC) at CIA, and marketed to subscribers through the NTIS World News Connection (WNC). Their absence has left a felt void, particularly since the daily products had been continuously available to the public (by paid subscription) since 1974.

“The first three months of 2014 have seen so many crucial international stories that current WNC Daily Report public access could have helped to illuminate,” said one disappointed subscriber. “OSC short-sightedness is mind-boggling.”

An effort to reverse the CIA move and to restore public access is beginning to take shape, but the prospects for success are uncertain.

Besides translations, the Open Source Center also produces original analysis of open sources. Much of this material is unclassified and could be released. Occasionally, some of it leaks.

In a marvelous piece described (but not disclosed) by Michael Rubin in Commentary on March 19, the Open Source Center reportedly performed a critical analysis of the music that was performed at the Sochi Olympics and Paralympics.

“The Open Source Center’s Russia analysts… observed that during the Olympic Games’ closing ceremonies, Russian authorities played an instrumental version of a song that called for Alaska’s return to Russia.”

A Wall Street Journal op-ed by Samantha Ravich and Carol Haave praised the value of open source intelligence and called for new investment in this area (“Nukes and ‘Snowden-Proof’ Intelligence,” March 17).

“Crafting new analytic methods for acquiring and exploiting… open-source scientific literature is crucial for understanding the pace, scale and scope of other countries’ nuclear-weapons aspirations,” they wrote, while open source intelligence “can often give us better insight into foreign leaders’ motivation and intent” than some other modes of collection and analysis.

But today’s CIA has proven to be an unreliable custodian of the open source intelligence enterprise, having deprived the public of access to its products for the first time in four decades. If there is ever to be a resurgence of open source intelligence, it probably ought to be managed and housed far from CIA.

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

U.S.-Vietnam Nuclear Cooperation Agreement: Issues for Congress, March 24, 2014

Ukraine: Current Issues and U.S. Policy, March 24, 2014

Central Asia: Regional Developments and Implications for U.S. Interests, March 21, 2014

Major U.S. Arms Sales and Grants to Pakistan Since 2001, March 26, 2014

Turkey: Background and U.S. Relations, March 27, 2014

Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court, March 21, 2014

The Trend in Long-Term Unemployment and Characteristics of Workers Unemployed for Two Years or More, March 24, 2014

Selected Characteristics of Private and Public Sector Workers, March 21, 2014

Legislative Research for Congressional Staff: How to Find Documents and Other Resources, March 25, 2014

Marijuana: Medical and Retail–Selected Legal Issues, March 25, 2014

Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate, March 21, 2014

The Intelligence Community Whistleblower Protection Act (ICWPA) has rarely been relied upon by intelligence agency whistleblowers, according to a newly released 2009 report from the Office of the Director of National Intelligence Inspector General.

During the ten year period after the Act came into effect in January 1999, intelligence agency Offices of Inspector General (OIGs) said that only ten whistleblower complaints had been filed.

“According to the questionnaire responses we received, since 1 January 1999, 4 IC OIGs received a total of 10 ICWPA complaints,” the October 2009 report said.

“The CIA and DoD OIGs received four complaints, and the OIGs for DOJ and ODNI each received one complaint.”

“Of the 10 complaints, 3 were deemed by the CIA and DOD OIGs to be ‘urgent concerns,’ as defined by the ICWPA, and all 3 were found to be credible. The CIA and DOD OIGs notified Congress of the three complaints, as required by the statute.”

“Of the remaining six complaints, all… were deemed ‘not credible’ by the respective OIGs.”

“Of the 10 complaints received by the IC OIGs during the 10-year reporting period, 3 of them — 2 from CIA and 1 from DoJ — included allegations of reprisal.”

“However, the CIA OIG found no evidence of reprisal when it investigated these allegations. The DoJ OIG referred the complaint to the DoJ Office of Professional Responsibility, which investigated the matter and found no evidence of reprisal.”

“The OIGs also reported that none of the complaints submitted to the IC OIGs was deemed fraudulent or made in ‘bad faith’,” the report said. But the contents of the complaints and any consequences resulting from them were not described in the report.

See the Report to Congress on the use of the Intelligence Community Whistleblower Protection Act submitted by ODNI Inspector General Roslyn A. Mazer, October 19, 2009.

The creation of an Intelligence Community-wide Inspector General in 2010 included establishment of a new IC IG Hotline, which “provides a confidential means for IC employees, contractors, and the public to report fraud, waste, and abuse.”

During a recent six-month period, the IC IG internal Hotline received 70 contacts from IC personnel as well as 77 contacts from the general public, according to a March 2013 semi-annual report. The results of those contacts, i.e. whether they prompted an investigation and corrective action, were not reported.

By comparison, the Department of Defense Hotline received more than 15,000 contacts during a six-month period ending September 2013. The DoD Inspector General opened 1,341 cases as a result.

DoD has a budget and a workforce that are roughly an order of magnitude larger than those of the Intelligence Community, so the two cannot be directly compared.

But it appears that whistleblower reporting of suspected waste, fraud and abuse has been institutionalized and routinized to a far greater extent in the Defense Department than within the Intelligence Community, where it remains uncommon.

The declassification of historical intelligence satellite imagery has been a boon to scientists, environmentalists and other researchers since it began with President Clinton’s executive order 12951. So, for example, “The declassification of imagery from CORONA and subsequent intelligence satellite programs has inspired a revolution in landscape archaeology in the Near East,” wrote archaeologist Jason Ur.

But last year’s declassification of imagery from the KH-9 HEXAGON intelligence satellite will be slower to generate any such revolutionary impact because the newly declassified images are so hard to access and to use.

The KH-9 imagery was successfully transferred from the National Geospatial-Intelligence Agency to the National Archives. But in order to protect the perishable film it must be maintained in cold storage, and so it was all sent to a National Archives facility in Lenexa, Missouri Kansas. Researchers must make their best guess as to what images they are seeking, and then order the originals to be transferred from cold storage. It’s a slow and cumbersome process.

The larger policy issue is that the archival burden on the National Archives and Records Administration is growing faster than the available resources. The task of curating the nation’s documentary heritage appears to be escalating out of control. Meanwhile, the Archives is literally running out of space. Last month, Archivist of the United States David S. Ferriero announced the closure of three NARA facilities “as part of ongoing budget adjustments.”

Recently, one concerned researcher shared his frustrations about the current procedures for obtaining declassified satellite imagery. Secrecy News forwarded his comments to the National Archives and Records Administration, and a NARA official provided an annotated response, reproduced below.

Researcher: Since the [KH-9 HEXAGON] film is original negative, it was all shipped to Lenexa, Kansas.

NARA: Correct.  There is a potential that some of the film was not acetate and as such didn’t require cold storage but we did not have the resources to review each of the 14,685 cans to determine the base format and we erred on the side of caution in determining where to store it.

Researcher: NGA DID make available to NARA under the MOU [Memorandum of Understanding] the imagery, and finding aids, which are image mosaic overlays on maps 1:100,0000.  These are completely useless.

NARA: There was no MOU for this particular transfer.  Previous transfers had MOUs because there were multiple sets of records which were being distributed between NARA, NGA, and USGS. I think that there is some confusion between the past transfers and this one.  For this transfer we were provided with frame metadata.  The overlays referenced here do not index KH-9 film, they only index the airborne imagery previously transferred from NGA.

Researcher: There is also a CD-ROM which can be loaded onto a flash drive containing an ASCII file with mission date, pass frame, lat-long footprints, in an Excel format. But there is no way to know if the images are fully cloud-covered or not until the film arrives.

NARA: The CD provided for access as described in the KH-9 reference guide is what was provided to us by NGA.  We know we can make it better but it will likely never provide information on cloud cover by image.  All of our film, except for that indexed by the overlays, requires looking at it to determine quality and potential cloud cover.

Researcher: One must submit that data to an archivist who then converts the info into Original Negative Can numbers.  The researcher then must submit a second request including the ON number and the cold storage numbers to an Archivist, who quality controls it and submits the request to NARA Lenexa.

NARA: As with any other transfer of imagery, there is a process involved in going from whatever index exists to identifying the cans of imagery.  In the case of KH-9, once researchers identify imagery from the frame metadata, we have a can locator which converts the information for missions, dates, etc. to an actual can of imagery.  This can locator is available for copying by researchers, and is available through the consultant in the research room who can provide the necessary information.  It is also available on a hard drive for researchers to use themselves.

There is a need to fill out a pull slip for documentation of use and a Lenexa request form but that is done at the same time and does not require much effort other than writing a can number and barcode.

Researcher: The cans show up a few days later, and an Archivist must then quality control the cans for “supply chain management.”

I have spent a week at College Park just to find this out, and I have yet to actually order a can and see imagery.

NARA: The process for requesting cans from Lenexa is the same for any record stored there.   We submit the requests on a daily basis, the Lenexa staff pulls the items and ship them out the next day.   They are potentially available two days after the initial request.  We do have to take time to document where the cans are every step of the way in order to ensure the security of the holdings but that does not slow the process down significantly.

The biggest issues are those simply related to having records stored offsite–timing of requests, ability of staff pulling the items to find the correct items, and the weather which affects the shipments both during the winter and tornado season.  There are sometimes preservation issues identified early before the records are used but that is very rare and they are generally addressed quickly so the researcher does not have to wait.

Researcher: By the next Friday, the researcher can only have the film checked out for 3 business days, Friday, Saturday, and Monday, then the film must be flown back to cold storage.

NARA: All of the research rooms have a 3 business day hold for records.  This is simply to ensure that records are looked at in a timely manner and are available for other researchers.  There is always the opportunity to extend the period of retention but the researcher needs to communicate a need for that.

The NARA official added a rough estimate of the cost of create a duplicate set of KH-9 imagery to facilitate user access:

“At 14,685 cans, and an estimate of $800 worth of film stock per can, the cost is likely more than 11 million dollars.  In addition, we estimate it would take a dedicated employee some 8 years to perform the work (roughly 5 cans/day).”

“Digitization of course avoids the cost of the film stock, but has its own costs and challenges,” the official said. “We have to try and figure out where we focus our limited resources.”

The number of Americans who have been investigated and deemed eligible for access to classified information rose last year to a total of 5,150,379 as of October 2013. It was the fourth consecutive year of growth in the security-cleared population.

The new total includes civilian and military government employees (3.7 million) and contractor personnel (1 million), as well as indeterminate others (0.4 million). It represents an increase of 4.7% from the previous year’s total of 4.9 million. Of the 5.1 million persons who were found eligible for access to classified information, 60% had access in fact.

An Office of Management and Budget review said that the continuing growth of the security clearance system is problematic both for financial and security reasons.

“[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, which was released last week.

Accordingly, the OMB review 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.”

The number of security clearances is supposed to be reported to Congress each year by the Office of the Director of National Intelligence. But ODNI said it has not yet filed its 2013 report. [Update: The report is available here.] However, the data were provided in the OMB review.

“Since 9/11, the number of clearances annual approved by DoD [the Department of Defense] has tripled, and continues to grow,” according to an independent review of the Washington Navy Yard Shooting in September 2013 that was also released last week.

“This growth magnifies the challenge of investigating clearance seekers, judging their applications, and periodically reviewing them after they are approved.”

“The continuing expansion of the cleared population has created a culture in which once-rare security clearances are now too often granted by default.” (Actually, security clearances have not been “rare” for quite a few decades.)

The independent review proposed that “DoD should seek to make a 10 percent cut in the number of positions that require access to material classified as Secret.”

“As soon as this reduction is attained, a follow-on review should determine whether further reductions can be realized.”

The independent review also identified “a growing culture of over-classification” as a related issue that “merit[s] additional focused study.” See Security From Within: Independent Review of the Washington Navy Yard Shooting, Department of Defense, November 2013 (released March 18, 2014).

Another review conducted by the Under Secretary of Defense for Intelligence concurred that there are too many people with security clearances. But it said that reducing the cleared population will not necessarily improve quality control or significantly reduce the burden on background investigators and adjudicators, because they are also responsible for a large number of “suitability” investigations in addition to security clearance investigations.

“The workload challenge will not be eliminated by reducing the number of security clearances because of the pending impacts of the alignment of suitability and security investigations and reinvestigations required by Executive Order 13467 and the 2012 Revised Federal Investigative Standards.”

“The net effect of the new standards will be to increase the Department’s investigative and adjudicative workload, regardless of the number of security clearances.” See Internal Review of the Washington Navy Yard Shooting, Report to the Secrecy of Defense, November 20, 2013.

Last week, the Department of Defense issued updated policy on the DoD Personnel Security Program (PSP), DoD Instruction 5200.02, March 21, 2014.

Among other things, the updated policy dictates that “All personnel in national security positions shall be subject to continuous evaluation,” referring to a process of collecting, reporting and evaluating security-relevant information about cleared individuals on an ongoing basis.

But this policy is aspirational rather than descriptive of current practice, which is limited to small-scale pilot projects to develop such a capacity. Full implementation of the “continuous evaluation” process is at least several years away, according to last week’s OMB report.

Secretary of Defense Chuck Hagel said last week that “We will consider reducing the number of personnel holding Secret security clearances by at least 10 percent, a recommendation in line with the October 2013 guidance from the Director of National Intelligence.”

Reducing the number of “personnel” that hold security clearances is a slightly different objective than reducing the number of “positions” that require access to classified information, as recommended by the Independent Review. It is not clear if the Secretary intended to make such a distinction.

In response to a request from Secrecy News, ODNI public affairs refused to provide a copy of the October 2013 DNI guidance. (Update: The DNI guidance was described further in this article from Politico.)

The Central Intelligence Agency may have violated the Speech or Debate clause of the U.S. Constitution by performing an unauthorized search of Senate Intelligence Committee computers, according to an analysis by the Congressional Research Service.

The Speech or Debate clause (in Article I, Section 6, Clause 1 of the Constitution) generally immunizes members of Congress from liability for actions performed in the course of their legislative duties.

But it also provides privileged protection for congressional documents against compulsory or involuntary disclosure. CIA may have unconstitutionally violated that privilege.

As detailed by Sen. Dianne Feinstein in a March 11 floor statement, the CIA carried out a search of Committee computers without notice or consent in an attempt to determine whether or how the Committee had obtained unauthorized access to a particular record concerning the CIA’s post-9/11 prisoner interrogation program.

“The search involved not only a search of documents provided by the committee to the CIA but also a search of the stand-alone and walled-off committee network drive containing the committee’s own internal work product and communications,” Sen. Feinstein said. The search took place in a CIA-leased facility where Committee staff were working.

“According to [CIA Director] Brennan, the computer search was conducted in response to indications that some members of the committee staff might already have had access to the internal Panetta review [a CIA document which CIA had not intended to release to the Committee]. The CIA did not ask the committee or its staff if the committee had access to the internal Panetta review or how we obtained it.”

“Instead, the CIA just went and searched the committee’s computers,” Sen. Feinstein said.

Through the Speech or Debate clause, the Constitution “has imposed [limitations] on executive branch attempts to interfere with legislative activities, including Congress’s authority to conduct oversight and investigations,” the new CRS analysis explained.

The Speech or Debate clause has been interpreted variously by two appellate courts, with different implications for the current circumstance, CRS said. The CIA search of Senate Intelligence Committee computers “could arguably be viewed as violating the non-disclosure privilege recognized by the court in Rayburn,” CRS said, referring to a 2007 DC Circuit case involving an FBI search of the House office of Rep. William Jefferson.

However, under a different reading of the Speech or Debate clause from a Ninth Circuit opinion in a case called US v. Renzi, the potential CIA violation “is less clear,” the CRS memorandum cautioned.

See Who’s Overseeing Whom? The CIA, SSCI and the Speech or Debate Clause, CRS Legal Sidebar, March 13, 2014.

In any event, the possible violation by the CIA of the non-disclosure privilege provided by the Speech or Debate clause is not legally actionable at this time, CRS said.  Rather, it “would only come into play in the event of a subsequent legal proceeding.”

On Friday, CIA Director John Brennan sent an email message to CIA employees containing what was understood to be a conciliatory signal towards Congress. “It is appropriate for the Intelligence Committees in the Senate and the House to carry out their oversight responsibilities thoroughly and comprehensively, and CIA needs to do all it can to assist the Committees in that regard,” Director Brennan wrote.

“Regarding the SSCI’s RDI [rendition, detention and interrogation] report, I want to assure you that the entire CIA leadership team is committed to addressing any outstanding questions or requests from SSCI members so that the Committee can complete its work and finalize the report as soon as possible.”

“I expect the Committee will submit at least some portion of the report to the CIA for classification review, and, if that happens, CIA will carry out the review expeditiously,” he wrote in the March 21 email message (published by Politico).

By leaking classified intelligence documents, Edward Snowden transformed public awareness of the scale and scope of U.S. intelligence surveillance programs. But his actions are proving to be no less consequential for national security secrecy policy.

“These leaks have forced the Intelligence Community to rethink our approach to transparency and secrecy,” said Robert S. Litt, General Counsel at the Office of the Director of National Intelligence. He spoke at a March 18 Freedom of Information Day program sponsored by the Collaboration on Government Secrecy at American University Washington College of Law.

Mr. Litt made it clear that he did not approve of the Snowden leaks, which he said were unlawful and had “seriously damaged our national security.” Yet he stressed that the leaks have also prompted a reconsideration of previously accepted patterns of secrecy.

“We have had to reassess how we strike the balance between the need to keep secret the sensitive sources, methods and targets of our intelligence activities, and the goal of transparency with the American people about the rules and policies governing those activities.”

“One lesson that I have drawn from the recent events… is that we would likely have suffered less damage from the leaks had we been more forthcoming about some of our activities, and particularly about the policies and decisions behind those activities,” Mr. Litt said.  (Director of National Intelligence James Clapper made the same point to Eli Lake of the Daily Beast last month.)

“Going forward, I believe that the Intelligence Community is going to need to be much more forward-leaning in what we tell the American people about what we do,” Mr. Litt said. “We need to scrutinize more closely what truly needs to be classified in order to protect what needs to be protected. And we need to move beyond the mindset of merely reacting to formal requests that we make information public, to a mindset of proactively making available as much information as we can, consistent with the need to protect sources and methods.”

“Greater disclosure to the public is necessary to restore the American people’s trust that intelligence activities are not only lawful and important to protecting our national security, but that they are appropriate and proportional in light of the privacy interests at stake. In the long run, our ability to protect the public requires that we have the public’s support,” Mr. Litt said.

While Mr. Litt’s remarks conveyed an overall message of beneficence, responsiveness, and good citizenship, they also had some peculiar features.

It is disconcerting to realize that the reassessment of classification policy described by Mr. Litt was not prompted by the diligent exercise of congressional oversight or by judicial review or by ordinary advocacy. Rather it was explicitly inspired by the Snowden leaks, which Mr. Litt described as “criminal.” The upshot is that leaks emerge as a uniquely powerful tool for shaping intelligence classification policy, while conventional checks and balances appear all but irrelevant by comparison.

Moreover, the purpose of the newfound push for greater transparency seems to be instrumental, not principled. In other words, it is driven by tactical considerations, not by statutory requirements or any other objective norm.

“I strongly believe that the best way to prevent the damage that leakers can cause is by increased transparency on our part,” Mr. Litt said. “Transparency can both lessen the incentive for disaffected employees to disclose our activities improperly, and provide the public appropriate context to evaluate leaks when they occur.”

That implies that what is needed is only as much transparency as it takes to achieve these imprecise and transient goals. It is a unilateral move that can be unilaterally reversed.

And then there is the fact that Mr. Litt’s rethinking of classification policy implies no new institutional reforms or externally-imposed constraints. Instead, the very same people who have classified too much up to now are suddenly expected to change course and to disclose more. It is not immediately clear how or why that would happen.

“There is no question that overclassification of information is a genuine problem,” Mr. Litt said. “So how do we deal with the problem of overclassification? I think that there are three principal steps we can take.”

“The first is to change the culture. We need high-level management emphasis on the problem of overclassification,” he said. To his credit, Mr. Litt has helped provide such emphasis.

“Second, we need to continue our efforts at proactive transparency– at reviewing information that we have historically protected to see whether, in fact, the overall public interest would better be served by releasing the information.” Significantly, however, he refrained from providing specific performance goals or benchmarks by which future progress could be measured.

“Finally, I think that those in the agencies who are responsible for responding to FOIA requests, and who are representing the government in FOIA litigation, need to look critically at all potentially responsive documents that are classified,” Mr. Litt said. “We should focus not on whether we can protect information, but whether we should.”

This is an interesting formulation. Most FOIA officers do not have authority to declassify records, and the adversarial nature of the FOIA process is rarely conducive to self-critical analysis of established agency policies even by more senior officials. But sometimes it is.

In 1997, the Federation of American Scientists filed suit against the CIA for release of the intelligence budget total for that year. The CIA ultimately decided that it could not defend its position of classifying the figure, according to an internal draft statement that was prepared for DCI George Tenet and released by the Clinton Library just last week.

“In order to defend this lawsuit,” the Tenet statement read, “I, as head of the Intelligence Community, would have had to sign a declaration to the court that release of the figure in question could cause serious damage to the national security. I found that, in good conscience, I could not attest to that statement.”

But such judgments are fluid and can be fleeting. Two years later, in response to another lawsuit for the 1999 budget figure, Director Tenet had no trouble declaring under oath that “Disclosure of… the total appropriation reasonably could be expected to cause damage to the national security in several ways.”

So spontaneous gestures of openness and transparency, as welcome as they may be, are imperfect substitutes for systemic change and external accountability.

News organizations have now released some 1,300 pages of classified records leaked by Edward Snowden, according to a tally by cryptome.org.  In response, US intelligence agencies have declassified and disclosed approximately twice that many.

“Our commitment to increased transparency will continue,” Mr. Litt said.

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

Climate Change Legislation in the 113th Congress, March 12, 2014

Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile Sources, March 13, 2014

Canadian Oil Sands: Life-Cycle Assessments of Greenhouse Gas Emissions, March 10, 2014

Keystone XL: Greenhouse Gas Emissions Assessments in the Final Environmental Impact Statement (FEIS), March 7, 2014

Nuclear Energy: Overview of Congressional Issues, March 14, 2014

The First Responder Network (FirstNet) and Next-Generation Communications for Public Safety: Issues for Congress, March 12, 2014

Department of Homeland Security Appropriations: FY2014 Overview and Summary, March 11, 2014

NASA Appropriations and Authorizations: A Fact Sheet, March 11, 2014

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, March 14, 2014

The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues, March 7, 2014

Even when the Central Intelligence Agency possesses a releasable document in a softcopy format, the Agency typically refuses to release the softcopy version in response to Freedom of Information Act requests, and insists on providing a hardcopy version of the document instead.

A federal judge said last week that that may be a violation of law.

The issue arose in a FOIA lawsuit seeking electronic copies of 419 articles from the in-house CIA journal Studies in Intelligence. The lawsuit was brought by Jeffrey Scudder, an information technology specialist who has worked in the intelligence community for 23 years.

Mr. Scudder told the court that he has detailed knowledge of CIA information systems and capabilities. In his FOIA requests, he was able to inform the CIA FOIA staff “as to where within the [CIA] computer systems the electronically stored documents [that he is requesting] are located.”

However, CIA refused to release the documents in the requested electronic format. Instead, the Agency proposed to print them out and to release them only in hard copy, ostensibly for security reasons. But this practice may be inconsistent with the requirements of the FOIA.

“Congress anticipated that recalcitrant agencies would resist being responsive to requesters’ format choices,” wrote Judge Beryl A. Howell of the DC District Court last week, and so Congress required agencies to make “reasonable efforts” to accommodate requesters’ preferences.

“Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard.”

“The defendant [CIA] avers that if it were ordered to honor the plaintiff’s [FOIA] request [for soft copy records], it would have to print the existing electronic documents to paper and then rescan them into electronic documents so that they may be reproduced and released on removable media,” Judge Howell summarized.

In fact, she wrote in her March 12 opinion, “Under this Rube-Goldbergian process, the same document, even if unclassified, must be printed from the defendant’s classified system in paper form at least twice…, and rescanned into the same classified system at least twice….”

Not only that, but CIA would charge the requester extra for its trouble. “As a result of this process, the defendant [CIA] asserts that the cost of electronic production to the plaintiff would be higher than that of producing the records in paper format, since the defendant would incur all of the costs associated with the paper production as well as the additional costs of re-scanning the printed responsive records, and the cost of any removable media provided to the plaintiff.”

But all of that is ridiculous, said Mr. Scudder, who contended that CIA is attempting to “frustrate [the] core purpose [of the FOIA] through administrative gimmicks designed to impose unreasonable financial burdens upon requesters.”

“The only reason CIA does not produce electronic versions of documents responsive to FOIA requests is that they choose not to do so,” said attorney Mark S. Zaid, who represents Mr. Scudder. “There is no technical reason to prevent it.”

Crucially, Judge Howell determined that “A FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

Judge Howell found that CIA’s understanding of its legal obligations and of the role of the Court was “incorrect” in various respects, and she concluded that several of its factual assertions were materially disputed.

“The plaintiff [Mr. Scudder] has, for example, alleged that he has personally used the defendant’s classified system to create a PDF file, something the defendant has stated is impossible,” Judge Howell noted.

In view of the unresolved factual disputes, and considering that “both parties allege bad faith on the part of the other,” Judge Howell refused to grant summary judgment to either side.

Instead, she granted Mr. Scudder’s motion for discovery, and the case will proceed to trial.

While the substance of the case concerns CIA’s information and FOIA practices, the Department of Justice that made its own independent decision to defend CIA’s handling of the Scudder FOIA request.  The skeptical comments voiced by Judge Howell may be understood as an implicit criticism of that Justice Department decision.

This week is Sunshine Week, an annual celebration of open government values. As it happens, however, the federal government is closed today due to snow.

Last June, the Chairman of the Joint Chiefs of Staff issued a classified “execute order” to authorize and initiate a military operation.

The nature, scope and duration of the military operation could not immediately be determined — even the title of the order is classified — but it evidently pertains to the conduct of military cyberspace activities.

The existence of the previously undisclosed execute order was revealed last week in a new Air Force Instruction.

“Classified processes governing C2 [command and control] of AF [Air Force] offensive and defensive cyberspace operations conducted by AF Cyber Mission Forces are addressed in a classified CJCS [Chairman, Joint Chiefs of Staff] Execute Order (title classified) issued on 21 Jun 13,” said Air Force Instruction 10-1701, entitled “Command and Control (C2) for Cyberspace Operations,” dated 5 March 2014.

An execute order goes beyond planning or preparation for conflict, and represents the commencement of a military operation.

The formal definition of an execute order (or EXORD) is “an order issued by the Chairman of the Joint Chiefs of Staff, at the direction of the Secretary of Defense, to implement a decision by the President to initiate military operations,” according to the official Department of Defense Dictionary of Military and Associated Terms (JP 1-02).

“Execution begins when the President decides to use a military option to resolve a crisis,” according to Joint Publication 5-0 on Joint Operation Planning. “Only the President or SecDef can authorize the CJCS to issue an execute order (EXORD).

“Execution continues until the operation is terminated or the mission is accomplished.”

“The CJCS-published EXORD defines the unnamed day on which operations commence or are scheduled to commence (D-day) and the specific time an operation begins (H-hour) and directs execution of the OPORD [operation order].”

“The CJCS’s EXORD is a record communication that authorizes execution of the COA [course of action] approved by the President or SecDef and detailed in the supported commander’s OPORD,” explained JP 5-0.

In response to questions from the Senate Armed Services Committee, Vice Adm. Michael S. Rogers, the nominee for Commander, US Cyber Command (and Director, NSA), said that “Geographic combatant commanders already have authority to direct and execute certain Defensive Cyberspace Operations (DCO) within their own networks.”

Judging from the new Air Force Instruction, however, the June 2013 execute order extends to offensive cyberspace operations as well.

All or most execute orders naturally start out as classified documents. But sooner or later, they are declassified.

A March 2011 execute order for Libya Contingency Operations can be seen here.

A January 1991 execute order for Operation Desert Storm, incongruously signed “Warm Regards, Colin Powell,” is here.

A rare reference to another currently classified execute order appeared in a paper published in Joint Force Quarterly (issue 69, April 2013, p. 53): “In compliance with the guidelines outlined in the Global Response Force Execute Order, JCSE [Joint Communications Support Element] maintains an alert-postured force that can deploy and have its communications packages fully operational within hours of notification for an emerging requirement.” That execute order dates from September 2012, and is classified Secret.

The Senate Armed Services Committee asked Adm. Rogers whether there was a need for greater transparency concerning “the nature of cyber warfare, and the balance between offensive and defensive capabilities.”

Adm. Rogers replied: “I believe the recent disclosures of a large portion of our intelligence and military operational history may provide us with [an] opportunity to engage both the American public and our international partners in discussion of the balance of offense and defense, the nature of cyber warfare, norms of accepted and unacceptable behavior in cyberspace, and so forth.”

“As cyberspace matures as a warfighting domain, I believe our classification policies will also evolve to support growing domestic and international partnerships and relationships,” Adm. Rogers wrote.