Department of Defense special access programs (SAPs) will normally remain classified for at least 40 years, according to newly issued DoD SAP marking guidance.

SAPs are established to protect particularly sensitive government information by imposing access requirements that exceed those for other classified information.

“SAP documents, dated prior to January 1, 1982, shall be declassified on December 31, 2021,” the DoD marking guidance said. “SAP documents dated after January 1, 1982, shall be declassified on December 31 of the 40th year after the date of the document, unless it is reviewed and submitted for another extension.” See Special Access Program (SAP) Security Manual: Marking, DoD Manual 5205.07, vol. 4, October 10, 2013.

The use of special access controls by the Department of Defense has proved problematic over the years because it disrupts the oversight protocols that would otherwise be in effect.  DoD SAPs have produced several multi-billion dollar program failures, including the A-12 aircraft, the TSSAM missile, and others.

There is a substantial record of improper creation of SAPs at DoD, and failure to properly terminate them. A 1992 DoD Inspector General audit of one such program, for example, found that “the decision to protect the program using special program measures was not adequately justified” AND DoD “continued to safeguard its association with the technology for reasons that were not related to national security.”

Unfortunately, a recent DoD Inspector General report on Department classification policy completely failed to assess the current use of special access controls by DoD. It was one of several defects and omissions in the DoD IG report.  (“DoD Inspector General Report on Overclassification Misses the Mark,” Secrecy News, October 24, 2013.)

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

The FY2014 Government Shutdown: Economic Effects, November 1, 2013

Legislative Actions to Repeal, Defund, or Delay the Affordable Care Act, October 30, 2013

Membership of the 113th Congress: A Profile, October 31, 2013

Salaries of Members of Congress: Recent Actions and Historical Tables, November 4, 2013

Salaries of Members of Congress: Congressional Votes, 1990-2013, November 4, 2013

Women in the United States Congress: Historical Overview, Tables, and Discussion, September 26, 2013

Women in the United States Congress, 1917-2013: Biographical and Committee Assignment Information, and Listings by State and Congress, September 26, 2013

Burma’s Political Prisoners and U.S. Sanctions, October 30, 2013

Cuba: U.S. Restrictions on Travel and Remittances, November 1, 2013

Israel: Background and U.S. Relations, November 1, 2013

Iran: U.S. Concerns and Policy Responses, November 4, 2013

Disclosure of U.S. intelligence surveillance activities in Germany and other allied countries has aroused angry public reaction in those countries, and has prompted discussion of the possibility of negotiating “no spy zones” abroad in which certain types of intelligence collection would be renounced and prohibited.

Some have spoken of extending to Germany or other countries the “Five Eyes” agreement that has long existed among the US, the UK, Canada, Australia and New Zealand to share intelligence, and not to spy on each other.

But a rarely-noted statute could make it difficult for any U.S. administration to achieve an international agreement involving binding new limits on intelligence collection against a foreign country, unless Congress enacts the limitation itself.

In the FY 2001 intelligence authorization act (P.L. 106-567, sect. 308), Congress said that the imperatives of U.S. intelligence gathering are to be understood to take precedence over any treaty or international agreement:

“No Federal law enacted on or after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2001 that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person to the extent such other person is carrying out such activity on behalf of, and at the direction of, the United States, unless such Federal law specifically addresses such intelligence activity.”

By way of explanation, the Senate Intelligence Committee said in a 2000 report:  “There has been a concern that future legislation implementing international agreements could be interpreted…. as restricting intelligence activities that are otherwise entirely consistent with U.S. law and policy.”

At a minimum, this provision appears to complicate any such restriction on intelligence activities that is advanced by international agreement, unless it is explicitly affirmed by Congress itself.

The notion of creating and incrementally expanding “no spy” zones has some history.  In a 1996 op-ed, for example, former U.S. Ambassador Robert E. White proposed that the U.S. explore the possibility on a trial basis:

“One reform might be to select a specific region of the world — for example, Central America — as a testing place. Withdraw all CIA staff from these countries. Let the National Security Council charge our career diplomats with fulfilling Washington’s intelligence requirements. Should Foreign Service officers prove capable of meeting all intelligence needs, then gradually extend this beneficial practice to other countries through pacts of reciprocal restraint by which signatories agree not to spy on or engage in covert action against the other. In order to be eligible to sign such a pact with the United States, the other nation would have to meet minimal standards of openness.”  (“Call Off The Spies,” Washington Post, February 7, 1996).

But even in the post-cold war, pre-9/11 interlude, this proposal did not find a receptive audience, and no such experiment was attempted.

“Some of our adversaries will say or do anything to advance their cause; we will not.” That’s what a Top Secret National Security Agency document says, as reported by the New York Times over the weekend (“No Morsel Too Minuscule for NSA” by Scott Shane, November 2).

But the list of things that U.S. intelligence agencies will not do to support the collection of foreign intelligence is likely to be shorter than the list of things that they will.  Gathering intelligence means stealing secrets that another country (or other entity) does not wish to reveal.  Towards that end, various forms of bribery, burglary, robbery, coercion and other crimes are tacitly understood to be permitted.

In the CIA clandestine service, “hundreds of employees on a daily basis are directed to break extremely serious laws in countries around the world in the face of frequently sophisticated efforts by foreign governments to catch them,” as a 1996 report from the House Intelligence Committee memorably explained (IC 21: Intelligence Community in the 21st Century, Chapter IX, at p. 205).

“A safe estimate is that several hundred times every day (easily 100,000 times a year) DO [CIA Directorate of Operations] officers engage in highly illegal activities (according to foreign law) that not only risk political embarrassment to the US but also endanger the freedom if not lives of the participating foreign nationals and, more than occasionally, of the clandestine officer himself,” the 1996 House report said. “In other words, a typical 28 year old, GS-11 case officer has numerous opportunities every week, by poor tradecraft or inattention, to embarrass his country and President and to get agents imprisoned or executed.”

When secrecy cannot be assured, those risks are magnified nearly everywhere that intelligence collection takes place.

As DNI James Clapper said at a hearing of the House Intelligence Committee last week, “there are many things we do in intelligence that, if revealed, would have the potential for all kinds of blowback…. the conduct of intelligence is premised on the notion that we can do it secretly and we don’t count on it being revealed in the newspaper.”

“The intelligence community must acknowledge how difficult it is to keep secrets today,” said ODNI General Counsel Robert Litt in a speech last week.

“In determining what activities to undertake we need to give more consideration to what the impact of additional leaks would be,” Mr. Litt said. “In each case we have to assess, to a greater extent than we have to date– is the game worth the candle?”

 

In 1973, the Director of Central Intelligence ordered CIA officials to prepare a descriptive account of all CIA activities that were “outside the legislative charter of this Agency,” which is to say unauthorized or illegal.  The purpose of the exercise was to identify operations that had “flap potential,” meaning that they could embarrass the Agency or embroil it in controversy.

The resulting 700-page CIA compendium of unlawful domestic surveillance, wiretapping, mail opening and detention actions became known as “the family jewels.”  It helped to inform and to substantiate the investigations of intelligence in the 1970s.  The document was finally declassified (with some redactions) in 2007 and was released to the National Security Archive, which has posted it here.

In a new book entitled “The Family Jewels: The CIA, Secrecy, and Presidential Power” (University of Texas Press, 2013), historian John Prados reviews the origins and consequences of the family jewels document and the operations described in it.

The thrust of Prados’ book is that the CIA family jewels are not simply relics of a discrete historical period, but rather that they are exemplars of a recurring pattern of intelligence misconduct. Many of the specific abuses of the 1970s, he argues, can be understood as archetypes that have been manifested repeatedly, up to the present day.

As a category, “family jewels,” then and now, involve violations of legal or moral norms, shielded by official secrecy. These operations tend to expand in scope until secrecy fails, for one reason or another, and then the public controversy which had been deferred explodes with redoubled force.

“Family Jewels are characterized by activity that goes beyond [legal] boundaries, refusal to rein in the operators, and then covering up the behavior.” (p. 57)  “One crucial aspect is that projects are relatively easy to initiate, but then very difficult to shut down.” (p. 321)

“Perhaps the most disturbing aspect of all is that Family Jewels seem to have a tendency to replicate, suggesting that abuse fulfills some functional purpose.” (p. 322)

So, according to Prados, unlawful domestic surveillance in the Vietnam era returns as extralegal surveillance in the war on terror. The abusive interrogation of a suspected CIA mole in the 1960s finds an echo in the  CIA’s post-9/11 interrogation practices. All the while, secrecy and selective disclosure are used to shape and manage public perceptions.

“There was a logic to the way Family Jewels evolved,” he writes, and his interesting new book elaborates on that theme.

*    *    *

Postscript:  It was startling to be reminded by Prados that the Federation of American Scientists was on the CIA “watch list” to have its mail intercepted and read by the Agency in the 1960s and early 1970s, along with the American Friends Service Committee, author John Steinbeck, and other questionable types (p. 75).

In 1971, then-FAS President Jeremy J. Stone triggered high-level anxiety at CIA when he wrote a letter to the Postal Service inquiring whether “any other agency” was being permitted to open U.S. mail. The letter generated intense deliberations among CIA leadership, and the program was terminated two years later.  Stone presented his account of that episode in a chapter of his memoirs here.  See also “The CIA’s Mail Cover: FAS Nearly Uncovered It,” by Robert Gillette, Science, June 27, 1975.

Total U.S. intelligence spending last year declined by more than 10%.

Intelligence spending has been on a downward slope for the last few years since its peak in 2010.  But last year’s drop, disclosed yesterday in newly declassified budget data for FY2013, was the steepest one-year decline in intelligence spending since at least the end of the Cold War, and maybe longer.

The reduction in spending was accelerated by the budget sequester which deprived intelligence agencies of billions of dollars beyond the intent of congressional appropriators, who were already cutting intelligence spending anyway.

The Director of National Intelligence said that the 2013 budget appropriation for the National Intelligence Program was $52.7 billion, but that it was reduced by sequester to $49.0 billion.

The Department of Defense disclosed that the 2013 budget for the Military Intelligence Program was $19.2 billion, but that it was reduced by sequester to $18.6 billion.

The aggregate appropriation for 2013 (NIP plus MIP) was $71.9 billion, reduced by sequester to $67.6 billion. This is a decline of more than 10% from the 2012 aggregate figure of $75.4 billion.

According to ODNI intelligence budget documents obtained by the Washington Post, the FY2013 budget request of $52.6 billion for the National Intelligence Program was intended to be “a decrease of $1.3 billion, or 2.4 percent, below the FY 2012 enacted level.” But the actual NIP number for 2013, post-sequester, ended up being a decrease of $4.9 billion, or 9 percent, from the year before.

Intelligence community officials said that the abruptness and severity of the cuts complicated their efforts to manage an orderly drawdown of intelligence programs.

“Unlike more directly observable sequestration impacts, like shorter hours at public parks or longer security lines at airports, the degradation to intelligence will be insidious,” said Director of National Intelligence James Clapper at a hearing last April. “It will be gradual, almost invisible, until, of course, we have an intelligence failure.”

“We recognize that in the current budgetary environment, the IC, along with the rest of the government, will have to endure some cuts,” said Robert S. Litt, General Counsel for the Office of the Director of National Intelligence, at an American Bar Association conference yesterday.  “The problem with sequestration is that, rather than allowing us to make cuts in a sensible manner, based on mission needs, it requires us to cut everything across the board.”

“We were able to deal with sequestration in the past year by delaying or deferring some activities and reprogramming funds to cover critical gaps. But this fiscal year, sequestration will require another round of cuts, and we won’t have the same flexibility to deal with them.”

“Instead of short-term delays or creative mitigation strategies, we will be forced to cut capabilities. Instead of determining what capabilities we need to keep the country safe, we will be forced to determine what capabilities we can afford to provide. The impact of sequestration will likely open new intelligence gaps and prevent us from mitigating existing ones,” Mr. Litt said.

For decades, intelligence officials insisted that public disclosure of intelligence budget totals would cause intolerable damage to national security and that the total budget figures must therefore be classified. Eventually it was recognized that this was not true, and that it probably had never been true. If anything, unclassified budget numbers now serve the interests of intelligence by enabling officials to publicly advocate in defense of their budgets.

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

Sovereign Debt in Advanced Economies: Overview and Issues for Congress, October 28, 2013

Foreign Assistance: Public-Private Partnerships (PPPs), October 28, 2013

Oil and Natural Gas Industry Tax Issues in the FY2014 Budget Proposal, October 30, 2013

Workforce Investment Act (WIA) Reauthorization Proposals in the 113th Congress: Comparison of Major Features of Current Law and S.1356, October 29, 2013

Automatic Continuing Resolutions: Background and Overview of Recent Proposals, October 28, 2013

The “Pay Ratio Provision” in the Dodd-Frank Act: Legislation to Repeal It in the 113th Congress, October 28, 2013

Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, October 25, 2013

Multiyear Procurement (MYP) and Block Buy Contracting in Defense Acquisition: Background and Issues for Congress, October 29, 2013

There were 139 new “secrecy orders” granted on patent applications during Fiscal Year 2013, according to new data released under the Freedom of Information Act by the U.S. Patent and Trademark Office.

Under the Invention Secrecy Act of 1951, secrecy orders may be imposed by government agencies on patent applications if their disclosure would be “detrimental to national security.”

With the new secrecy orders granted over the past year, and the 21 orders that were rescinded, the total number of invention secrecy orders in effect at the end of FY 2013 was 5,445.  This is the highest annual total since FY 1994, when the number reached 5,540.

The latest orders included 21 so-called “John Doe” orders, a term that refers to secrecy orders that are imposed on private inventors whose inventions and patent applications were generated without any government or military support (or “property interest”).  These John Doe orders, which were not identified further, may be particularly vulnerable to a First Amendment challenge as instances of prior restraint.  But no challenge of this kind seems to have been brought before a court.

The new invention secrecy statistics, while impressive in a way, are in the end opaque and unrevealing. There is nothing in the raw numbers that would provide an indication of the validity of the decision to block disclosure of a patent application, whether a secrecy order was appealed or challenged, and what adverse impacts, if any, such an order might have had.

Some inventors say that the Invention Secrecy Act has deprived them of the benefits of their own inventions by forcing them to miss commercial opportunities.  See “Government secrecy orders on patents keep lid on inventions” by G.W. Schulz, The Center for Investigative Reporting, April 16, 2013.

More broadly, national security secrecy, including official use of the state secrets privilege, is an additional source of friction in the patent process, which already can be highly contentious and litigious.

“The government can take whatever technology it wants from a U.S. company and hide behind military secrecy in refusing just compensation,” according to an opinion piece in Aviation Week & Space Technology (“USAF Seized Stealth Advantage, Literally” by Zsolt Rumy, October 7, 2013).

Last week, a bill (HR 3332) to promote judicial review of state secrets claims by the government was reintroduced by Congressman Jerrold Nadler and colleagues in both parties.

“In recent years, the executive branch has used the state secret privilege aggressively, often seeking outright dismissal of entire cases based on the claim that the very subject matter of a case is too secret to be heard by a court,” said Rep. Nadler. “This troubling trend cannot continue.”

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

Army Drawdown and Restructuring: Background and Issues for Congress, October 25, 2013

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, October 23, 2013

Chemical Regulation in the European Union: Registration, Evaluation, and Authorization of Chemicals, October 23, 2013

Proposed Reform of the Toxic Substances Control Act (TSCA) in the 113th Congress: S. 1009 Compared with S. 696 and Current Law, October 23, 2013

Cybersecurity: Authoritative Reports and Resources, October 25, 2013

The Department of Defense Inspector General yesterday released its Evaluation of Over-Classification of National Security Information.  Unfortunately, the new report is superficial, incomplete and sheds little light on either the problem of overclassification or any potential solution.

Like other Inspectors General who have recently been evaluating classification policy under the Reducing Over-Classification Act, the DoD IG had to confront the fact that there is no generally accepted definition of overclassification. (See “What Is Overclassification?”, Secrecy News, October 21, 2013).

So the DoD IG review treats classification policy mainly as a procedural issue (how classification is performed) rather than a substantive one (what gets classified and why).

This is a limited though straightforward approach that lends itself to quantification. And there is no shortage of procedural faults in DoD classification activity. No less than 70% of all documents reviewed by the IG had “classification discrepancies,” such as faulty markings or citations to proper authority, the report said. Startlingly, “One-hundred percent of emails we reviewed contained errors in marking or classification.”

All of that is fine and interesting, but it is also beside the point.  The point is that the national security classification system has expanded beyond all consensus so that even the President of the United States has spoken of “the problem of over-classification.” The classification system is suffering a crisis of credibility, and it may be headed towards catastrophic failure.

According to a report last year from the congressionally-mandated Public Interest Declassification Board, “The classification system exists to protect national security, but its outdated design and implementation often hinders that mission. The system is compromised by over-classification….”

But if the classification system is “compromised by over-classification,” no one told the DoD Inspector General. Or maybe he neglected to ask. Although the Public Interest Declassification Board includes members with deep knowledge and experience of DoD classification policy (including former heads of the NRO and the NSA), the IG report does not acknowledge the Board’s work or contend with its findings.  Instead of advancing the debate, the IG report actually sets it back by ignoring established facts and prior analyses.

The IG report is also oblivious to current events. In recent years, including the period of the IG’s evaluation, the Department of Defense has suffered the most extensive and voluminous breaches of classification controls in its history. Remarkably, the perpetrators of those breaches (Manning and Snowden) expressed a perception that the information they released had been inappropriately classified and withheld from the public, and cited this as a motive for their actions. Strictly from a security policy point of view, it seems vital to evaluate such claims. Are similar perceptions widely held by others inside and outside the Department? And in retrospect, have such claims proved to be valid, even partially?  Unfortunately, the DoD Inspector General does not recognize any link between overclassification and unauthorized disclosures of classified information, and so such questions are neither asked nor answered in the report.

The DoD IG also has nothing to say about one of the most arresting failures of national security classification policy in recent memory, which is now transpiring: A December 2013 deadline set by President Obama himself (in 2009) for declassification and public release of the backlog of 25 year old historically valuable records will not be met.  This is a revelatory development. If the declassification process is not fully responsive even to direct presidential instruction, then it is truly broken and in need of repair. As the largest producer of classified records, the Department of Defense bears some responsibility for this problem, and also for its correction.  But lamentably, the DoD IG refused to engage, or even to acknowledge the problem. It is a missed opportunity.

In 1995 an earlier report from the DoD Inspector General was willing to admit that “The declassification process suffers from deficiencies that seriously impair its operation.”

But the latest DoD IG report does not even mention its own earlier finding, let alone any deficiencies or impairments in the operation of the declassification system, though these have arguably gotten worse as the volume of classified information has increased.

In fact, the new DoD IG report said it “did not evaluate declassification” at all. The entire topic was ignored. That is “because ISOO recently completed its five-year on-site assessment of agency declassification programs.” Readers of the IG report are referred to a scanty two-page summary in the latest annual report from the Information Security Oversight Office that did not even evaluate declassification productivity or efficiency.  Nor did the ISOO report address the imminent failure to complete the declassification and public release of the 25 year old backlog.

The DoD IG report also slights other important concerns, such as the disruptive effect of classification of nuclear weapons-related information under the Atomic Energy Act on the classification and declassification of other national security information. Instead of helping to chart a way forward towards simplification and reconciliation of the dual classification systems, the IG just says nothing on the subject.

In short, the new DoD Inspector General report on over-classification is a defective product. It should be rescinded and redone.

Withdrawal of a published IG report would be an extraordinary step, but it is warranted by the importance of the topic.

The DoD Inspector General could begin by consulting members of Congress and other inside and outside of government who have expressed dissatisfaction with DoD classification policy in order to understand their critique. The IG should review the existing literature on reform of classification and declassification practices (including its own prior work). The IG should assess the nature of the link between overclassification and unauthorized disclosures of classified information. It should diagnose the ongoing failure to timely declassify historically valuable records, and recommend appropriate changes. It should evaluate amendments to the Atomic Energy Act that may be needed to streamline and simplify the Department’s classification practices.

A more rigorous and probing Inspector General evaluation along those lines would be a service to the Department of Defense, to the government as a whole, and to the interested public.

New or updated reports from the Congressional Research Service obtained by Secrecy News include the following.

Carbon Capture: A Technology Assessment, October 21, 2013

Social Security: What Would Happen If the Trust Funds Ran Out?, October 21, 2013

Video Relay Service: Program Funding and Reform, October 22, 2013

Mandatory Minimum Sentencing: Federal Aggravated Identity Theft, October 22, 2013

Hydraulic Fracturing: Selected Legal Issues, October 22, 2013

Federal Financial Reporting: An Overview, October 22, 2013

Fatherhood Initiatives: Connecting Fathers to Their Children, October 22, 2013

Promoting Global Internet Freedom: Policy and Technology, October 22, 2013

The G-20 and International Economic Cooperation: Background and Implications for Congress, October 23, 2013

U.S. Strategic Nuclear Forces: Background, Developments, and Issues, October 22, 2013

Although former State Department contractor Stephen Jin-Woo Kim will not go to trial before next year on charges of leaking classified information to Fox News reporter James Rosen, the pre-trial maneuvering by the prosecution and the defense is accelerating.

Prosecutors notified the court last week that their theories regarding the defendant’s motive for allegedly leaking classified information would not be presented at trial.  Meanwhile, the defense appears to be engaged in its own search for other potential leak suspects.

The prosecution had previously said it “planned to rely on three motive theories at trial.” But when the Court ruled that the defense was entitled to discovery of classified information regarding those theories, the government reconsidered its position.

“Because of the Intelligence Community equities implicated by the Court’s ruling, the United States hereby gives notice that it has elected not to rely on these motive theories at trial, thereby eliminating the basis for the defendant’s classified discovery demands related to motive…,” prosecutors said in an October 18 filing.

In another filing this week, the parties described a novel procedure they agreed upon by which the government would perform a search for a series of telephone numbers supplied by the defense– apparently in pursuit of alternate suspects or other exculpatory information.

“Defense counsel will provide … a list of telephone numbers, or telphone area codes and exchanges” and an independent team of reviewers “will compare the defendant’s list with the two days of government commercial telephone records… If any number on the defendant’s list overlaps with any number in the government commercial telephone records, the filter team will inform counsel for both parties…. If that comparison yields any hits, then the parties will discuss how to proceed,” the October 21 joint notice said.

In a Report on Review of News Media Policies last July, the Department of Justice had expressed its first hint of ambivalence about leak prosecutions, and had said that it would consider administrative penalties as an alternative to criminal trials:

“The Department will work with others in the Administration to explore ways in which the intelligence agencies themselves, in the first instance, can address information leaks internally through administrative means, such as the withdrawal of security clearances and imposition of other sanctions,” the Report said.

But no one should infer that there will be any discernable change in current or pending criminal trials.  “The DOJ Report does not purport to take a litigation position in this legal proceeding or any other,” prosecutors said in a September 30 filing in the Kim case.

In leak prosecutions, the punitive phase of the proceeding need not await the actual conviction of the defendant; it starts, in effect, right away.

“This has been a huge blow for me and for my entire family,” said Stephen Kim in an interview with the Korean publication The Hankyoreh on October 11. “I had to give up a job that I had liked. It also destroyed my marriage. My family had to spend all of the money they had saved up and even sell their house to pay my legal fees. I hardly have any remaining assets. Being brought to court and knowing that people believe I did something I didn’t actually do is a hurtful and painful experience. You cannot imagine what it’s like to be charged with a crime you didn’t commit,” he said.

Yesterday New York Times reporter James Risen sought a stay of a Fourth Circuit appeals court ruling that would require him to testify regarding a confidential source in the leak trial of former CIA official Jeffrey Sterling. He indicated his intent to petition the Supreme Court for relief. “The Government said that it takes no position on whether a stay should be granted.”