Mandatory Minimum Sentencing, and More from CRS

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

What is Overclassification?

When people criticize overclassification of national security information, what exactly are they talking about? Is it too much secrecy? The wrong sort of secrecy? Classifying something at too high a level? Oddly, there is no widely-accepted definition of the term.

But since the solution to overclassification, if any, will naturally be shaped by the way the problem is understood, it is important to specify the problem as clearly as possible.

In 2010 Congress passed (and President Obama signed) the Reducing Over-Classification Act, which mandated several steps to improve classification practices in the executive branch. But in a minor act of legislative malpractice, Congress failed to define the meaning of the term “over-classification” (as it was spelled in the statute). So it is not entirely clear what the Act was supposed to “reduce.”

Among its provisions, the Act required the Inspectors General of all classifying agencies to perform an evaluation of each agency’s compliance with classification rules.

To assist them in their evaluations, the Inspectors General turned to the Information Security Oversight Office (ISOO) for a working definition of overclassification that they could use to perform their task. ISOO’s answer was cited by the Inspector General of the Department of Justice in its new report. (Audit of DOJ’s Implementation of and Compliance with Certain Classification Requirements, Inspector General Audit Report 13-40, September 2013.)

“Over-classification,” according to ISOO, means “the designation of information as classified when the information does not meet one or more of the standards for classification under section 1.1 of Executive Order (EO) 13526.” If something is classified in violation of the standards of the executive order– then it is “over-classified.”

So, for example, information that is not owned by the government, such as a newspaper article, cannot be properly classified under the terms of the executive order. And neither can information that has no bearing on national security, such as an Embassy dinner menu. And yet information in both categories has been known to be classified, which is indeed a species of overclassification.

Unfortunately, however, this ISOO definition presents the problem so narrowly that it misses whole dimensions of overclassification.

The most important and the most urgent aspect of overclassification pertains to classified information that does meet the standards for classification under the executive order, but that nevertheless should not be classified for one reason or another.

It is important to understand that the executive order on classification does not require the classification of any information at all. It is permissive, not mandatory. It consistently says that information “may” be classified under certain circumstances, not that it “must” be classified.

(Even some government officials who should know better sometimes get this wrong. The new DoJ Inspector General report states in passing that “Section 1.4 of EO 13526… includes intelligence sources or methods as a category of information that shall be classified” (p. 23, footnote 27, emph. added). That’s a mistake. Section 1.4 speaks of information that may or may not be “considered for classification,” including intelligence sources of methods, but it does not dictate the classification of such information.)

But while the executive order does not require classification of anything, it allows classification of an overwhelming, practically unlimited volume of information. And it is within this permissible range of classification, far more than outside of it, that overclassification needs to be addressed.

The new Department of Justice Inspector General report didn’t grapple with this core problem. It did find a surprisingly high number of errors in DOJ classification practices, including numerous errors in marking of classification records, as well as ignorance or misunderstanding of classification guidance (or faulty guidance), and inconsistencies in the application of classification controls. These are serious administrative flaws, which should be amenable to improvement through training. But fixing them will not do much to reduce overclassification.

Using the narrow ISOO definition of overclassification, the Justice Department Inspector General report said that it “did not find indications of widespread misclassification.”

But a more comprehensive and penetrating definition would have produced a different result, at DoJ and at other agencies. Such an alternative definition might go something like this:

Overclassification refers to the classification of information that should not be classified, even if it falls within the scope of the executive order, because doing so interferes with some other critical function, such as a desirable process of information sharing, or because it precludes the possibility of public consent to major national security activities.

This contrasts with the ISOO definition in two important ways: it applies to information that does meet the standards of the executive order, and it takes into account the adverse impact of classification on other important functions and values. The contrast can be extended to actual (over)classification judgments.

So, for example, the use of simulated drowning as a CIA interrogation technique (“water boarding”) or the Justice Department legal reviews of the subject would not have been considered overclassified by the ISOO standard, since these are clearly within the scope of national security information defined by the executive order. But they would be overclassified by the standard that requires an opportunity for public consent to major national departures from previously accepted norms.

Similarly, the bulk collection of American telephone records by the National Security Agency and the Justice Department opinions that seek to justify such collection would not be overclassified under the ISOO definition. But they would be deemed overclassified under a standard that requires public consent to major intelligence initiatives affecting Americans’ own information.

On the other hand, not every mistaken classification decision is equally problematic, and many of them may be insignificant. If a particular component of a classified weapon program is classified Top Secret instead of Secret or Unclassified, it may not matter much at all. But very often, classification decisions do matter a lot, and new efforts are needed to get them right.

When President Obama spoke of “the problem of over-classification” (in a May 27, 2009 memorandum), he almost certainly was not thinking of the kind of administrative errors in marking classified documents discovered by the DoJ Inspector General, but of something far more consequential. It is a problem that still remains to be addressed in a systematic way.

If the classification process were exclusively a matter of information security, then it could be safely left to security professionals to implement as they see fit. But because the decision to classify often has broader implications for national policy and for democratic governance, it cannot properly be relegated to security officials alone; even when applied in good faith, the security perspective by itself is too narrow. And so is any other singular perspective.

But if one grants that classification decisions often involve a multiplicity of important interests (or “equities”), then it follows that a broader, more consensual approach to classification is needed than the existing reliance on the judgment of individual classifiers can provide. (I argued for such an approach here.)

In addition to the Department of Justice IG report, inspector general reports required under the Reducing Over-Classification Act have also been publicly released by the IGs of the Department of Homeland Security and the Department of Commerce. Others are pending.

Agency inspectors general “are now playing a significant role in monitoring national security practices curtailing individual rights,” according to a recent law review article on the subject. “IGs are well suited to increase transparency, evaluate the propriety of national security conduct, and reform internal practices; on the other hand, their independence can be undermined, they may avoid constitutional questions, and they rely on political actors to implement reforms.” See Protecting Rights from Within? Inspectors General and National Security Oversight by Shirin Sinnar, Stanford Law Review, Vol. 65, p. 1027, Spring 2013.

Telecom (and Privacy) Statutes Need Updating, and More from CRS

The laws that govern and regulate the communications industry are substantially out of date and need to be revised, according to a new report from the Congressional Research Service.

“The communications sector does not look at all as it did when the Telecommunications Act was passed in 1996. Most significantly, consumer behavior in 2013 bears little resemblance to that in 1996,” the report says. See Updating the Statutory Framework for Communications for the Digital Age: Issues for Congress, September 30, 2013.

The new CRS report does not address communications privacy issues or surveillance-related concerns. However, the underlying statutes in these areas are no less obsolete and urgently in need of updating, almost everyone agrees. Related hearings earlier this year in the House Judiciary Committee have recently been published.

“The Electronic Communications Privacy Act of 1986, or ECPA, is complicated, outdated, and largely unconstitutional,” said Rep. James Sensenbrenner, chair of the Judiciary Committee, at the first hearing. “The 1986 law governing the Internet is like having a national highway policy drafted in the 19th century.” See ECPA (Part I): Lawful Access to Stored Content, March 19, 2013, and Electronic Communications Privacy Act (ECPA) (Part II): Geolocation Privacy and Surveillance, April 25, 2013.

Relatedly, a new report from the Brennan Center for Justice “takes a comprehensive look at the multiple ways U.S. intelligence agencies collect, share, and store data on average Americans.” See “What the Government Does with Americans’ Data,” October 8, 2013.

Here are some other new reports from the Congressional Research Service:

FY2014 Appropriations: District of Columbia, October 15, 2013

FY2014 Appropriations Lapse and the Department of Homeland Security: Impact and Legislation, October 11, 2013

Oil and Chemical Spills: Federal Emergency Response Framework, October 10, 2013:

Navy Aegis Ballistic Missile Defense (BMD) Program: Background and Issues for Congress, updated October 17, 2013

Nuclear Weapons Scientists Are Sad

Scientists in the nuclear weapons program at the Lawrence Livermore National Laboratory (LLNL) are feeling blue, according to a recent internal report.

“We heard that there is a sense of increased stress and reduced morale among LLNL technical employees in the weapons program, stemming from a (perceived, at least) combination of reduced resources and increased work requirements,” the report said.

Of course, many people are sad, for many reasons. The Shekhinah is in exile. But low morale among weapons scientists can have negative programmatic and national security consequences.

Therefore, “We recommend attention to the potential danger that activities that are important for long-term stockpile stewardship may be dropped in favor of seemingly urgent near-term requirements,” the report said. See “Predictive Science Panel: Unclassified Report,” LLNL Meeting, August 20-22, 2013.

A new study of the future of the U.S. nuclear weapons arsenal proposes “a framework for evaluating future reductions or modifications of the U.S. nuclear force.” The study, performed for the Department of Energy, warns against irreversible changes in the arsenal (which it calls “roach motels of reduction”), reversible but undesirable changes (“box canyons in the Valley of Disarmament”), and other types of unfavorable actions (“wrong turns on the road to the future”). See “Reductions Without Regret” by John A. Swegle and Douglas J. Tincher, Savannah River National Laboratory, September 2013. The report does not necessarily represent the views of DoE or the US Government (or FAS).

A new report from the CATO Institute calls for the elimination of two legs of the nuclear triad (missiles and bombers) in favor of an entirely submarine-based nuclear force. See “The End of Overkill?” by Benjamin Friedman, Christopher Preble, and Matt Fay, September 24, 2013.

Meanwhile, Hans Kristensen of FAS discovers a surprising fact: “The latest data from the New START Treaty shows that Russia has reduced its deployed strategic nuclear forces while the United States has increased its force over the past six months.” This is an anomalous result of the counting process, not a new arms buildup, but it is noteworthy nonetheless. See “New START Data Shows Russia Reducing, US Increasing Nuclear Forces,” FAS Strategic Security Blog, October 2.

Cryptographer Adi Shamir Prevented from Attending NSA History Conference

In this email message to colleagues, Israeli cryptographer Adi Shamir recounts the difficulties he faced in getting a visa to attend the 2013 Cryptologic History Symposium sponsored by the National Security Agency. Adi Shamir is the “S” in the RSA public-key algorithm and is “one of the finest cryptologists in the world today,” according to historian David Kahn. The NSA Symposium begins tomorrow. For the reasons described below, Dr. Shamir will not be there.

From: Adi Shamir

Date: October 15, 2013 12:16:28 AM EDT

To:

Subject: A personal apology

The purpose of this email is to explain why I will not be able to attend the forthcoming meeting of the History of Cryptology conference, even though I submitted a paper which was formally accepted. As an active participant in the exciting developments in academic cryptography in the last 35 years, I thought that it would be a wonderful opportunity to meet all of you, but unfortunately the US bureaucracy has made this impossible.

The story is too long to describe in detail, so I will only provide its main highlights here. I planned to visit the US for several months, in order to attend the Crypto 2013 conference, the History of Cryptology conference, and to visit several universities and research institutes in between in order to meet colleagues and give scientific lectures. To do all of these, I needed a new J1 visa, and I filed the visa application at the beginning of June, two and a half months before my planned departure to the Crypto conference in mid August. I applied so early since it was really important for me to attend the Crypto conference – I was one of the founders of this flagship annual academic event (I actually gave the opening talk in the first session of the first meeting of this conference in 1981) and I did my best to attend all its meetings in the last 32 years.

To make a long story short, after applying some pressure and pulling a lot of strings, I finally got the visa stamped in my passport on September 30-th, exactly four months after filing my application, and way beyond the requested start date of my visit. I was lucky in some sense, since on the next day the US government went into shutdown, and I have no idea how this could have affected my case. Needless to say, the long uncertainty had put all my travel plans (flights, accommodations, lecture commitments, etc) into total disarray.

It turns out that I am not alone, and many foreign scientists are now facing the same situation. Here is what the president of the Weizmann Institute of Science (where I work in Israel) wrote in July 2013 to the US Ambassador in Israel:

“I’m allowing myself to write you again, on the same topic, and related to the major difficulties the scientists of the Weizmann Institute of Science are experiencing in order to get Visa to the US. In my humble opinion, we are heading toward a disaster, and I have heard many people, among them our top scientists, saying that they are not willing anymore to visit the US, and collaborate with American scientists, because of the difficulties. It is clear that scientists have been singled out, since I hear that other ‘simple citizen’, do get their visa in a short time.”

Even the president of the US National Academy of Science (of which I am a member) tried to intervene, without results. He was very sympathetic, writing to me at some stage:

“Dear Professor Shamir

I have been hoping, day by day, that your visa had come through. It is very disappointing to receive your latest report. We continue to try by seeking extra attention from the U. S. Department of State, which has the sole authority in these matters. As you know, the officers of the Department of State in embassies around the world also have much authority. I am personally very sympathetic and hopeful that your efforts and patience will still yield results but also realize that this episode has been very trying. We hope to hear of a last-minute success.

Yours sincerely, Ralph J. Cicerone”

What does all of this have to do with the History of Cryptology conference? In January 2013 I submitted a paper titled “The Cryptology of John Nash From a Modern Perspective” to the conference, and a short time afterwards I was told by the organizers that it was accepted. In July 2013 I told the NSA-affiliated conference organizers that I was having some problems in getting my visa, and gently asked whether they could do something about it. Always eager to help, the NSA people leaped into action, and immediately sent me a short email written with a lot of tact:

“The trouble you are having is regrettable…Sorry you won’t be able to come to our conference. We have submitted our program and did not include you on it.”

I must admit that in my 35 years of attending many conferences, it had never happened to me that an accepted paper of mine was yanked out from the official program in such a unilateral way. However, since I never try to go to places where I do not feel wanted, I decided to inform MIT that a window had become available in my busy schedule. They immediately invited me to visit them on October 17 and 18, and to give a major lecture during my visit. Naturally, I accepted their gracious invitation.

The final twist in this saga happened a few days ago, when out of the blue I was suddenly reinvited by the conference organizers to attend the event and to present my paper. However, this is too late now, since I am already fully committed to my visit to MIT.

So what is the bottom line of this whole unhappy episode? Clearly, no one in the US is trying to see the big picture, and the heavy handed visa bureaucracy you have created seems to be collapsing under its own weight. This is not a security issue – I have been to the US close to a hundred times so far (including some multi-year visits), and had never overstayed my visas. In addition, the number of terrorists among the members of the US National Academy of Science is rather small. As a friend of the US I am deeply worried that if you continue to delay visas in such a way, the only thing you will achieve is to alienate many world-famous foreign scientists, forcing them to increase their cooperation with European or Chinese scientists whose countries roll the red carpet for such visits. Is this really in the US best interest?

Best personal wishes, and apologies for not being able to meet you in person,

Adi Shamir

Dept of Defense to Report on “Authorized Leaks”

A new Department of Defense directive requires the Pentagon to notify Congress whenever a DoD official discloses classified intelligence to a reporter on an authorized basis, or declassifies the information specifically for release to the press.

The new directive on “Congressional Notification for Authorized Public Disclosure of Intelligence Information” applies to all components of the Department of Defense.

It was issued last week — despite the government shutdown — in response to a provision in the FY2013 Intelligence Authorization Act (section 504) that was passed by Congress last year as part of an effort to stem leaks of classified information.

The Senate Intelligence Committee explained then: “This provision is intended to ensure that the intelligence committees are made aware of authorized disclosures of national intelligence or intelligence related to national security that are made to media personnel or likely to appear in the press, so that, among other things, these authorized disclosures may be distinguished from unauthorized ‘leaks’.”

Notification to Congress is required whenever the intelligence that is disclosed “is currently classified or if it is declassified for the purpose of the disclosure,” the directive states. The reporting requirement does not apply to regular declassification activities, or to releases under the Freedom of Information Act or through litigation.

The new requirement casts a spotlight on the anomalous category of authorized disclosures of classified information, which would normally be considered a contradiction in terms.

Although there is an allowance for emergency disclosures of classified information in order to address an imminent threat (section 4.2b of executive order 13526), there is no recognized authority for non-emergency disclosures of classified intelligence to the press or to anyone who does not hold a security clearance and who has not signed a non-disclosure agreement. (Perhaps a lawyerly reading of the executive order would say that the prohibition against unauthorized disclosures of classified information to an uncleared person does not apply if the disclosure is authorized.)

In any case, official disclosures of classified information to the press — sometimes described as “authorized leaks” — are known to occur with some regularity.

What is unclear is what impact, if any, the new DoD directive will have on daily interactions with the press. Will the Secretary of Defense actually file a report to Congress if he privately reveals a classified fact to a reporter? That’s a little hard to imagine, though that’s what the law demands. Or will the new reporting obligation instead serve to discourage authorized leaks to the press?

Because Congress imposed a one-year sunset on its new reporting requirement, the new DoD directive will expire on January 14, 2014, three months from now, unless it is renewed. It will be interesting to see if even a single report of an authorized disclosure of classified intelligence is filed by then.

In Case You Missed It

New legislation to restore due process protections for federal employees who serve in “sensitive” positions was introduced last week by Rep. Eleanor Holmes Norton. Her bill was prompted by a widely criticized court ruling last August (in Kaplan v. Conyers and MSPB) that effectively stripped existing protections from such employees.

The latest annual report from Openthegovernment.org examines the most recent indicators of secrecy in the federal government, noting continuing difficulty in curbing national security secrecy.

A new report from the Committee to Protect Journalists on “The Obama Administration and the Press” says that “government officials are increasingly afraid to talk to the press” due to invasive and punitive responses to unauthorized disclosures.

A new book on Lee Harvey Oswald’s sojourn in the Soviet Union was reviewed by Priscilla Johnson McMillan in Max Holland’s Washington Decoded. Ms. McMillan, author of the genuinely extraordinary 1977 volume Marina and Lee (reissued last summer), must be the only person ever to have known both JFK and Oswald. In her book review, she finds significant virtues and faults in the new book, The Interloper by Peter Savodnik.

CIA Halts Public Access to Open Source Service

For more than half a century, the public has been able to access a wealth of information collected by U.S. intelligence from unclassified, open sources around the world. At the end of this year, the Central Intelligence Agency will terminate that access.

The U.S. intelligence community’s Open Source Center (OSC), which is managed by the CIA, will cease to provide its information feed to the publicly accessible World News Connection as of December 31, 2013, according to an announcement from the National Technical Information Service (NTIS), which operates the World News Connection (WNC).

The WNC “is an online news service, only accessible via the World Wide Web, that offers an extensive array of translated and English-language news and information,” an NTIS brochure explains. “Particularly effective in its coverage of local media sources, WNC provides you with the power to identify what really is happening in a specific country or region. Compiled from thousands of non-U.S. media sources, the information in WNC covers significant socioeconomic, political, scientific, technical, and environmental issues and events.”

“The information is obtained from full text and summaries of newspaper articles, conference proceedings, television and radio broadcasts, periodicals, and non-classified technical reports. New information is entered into WNC every government business day. Generally, new information is available within 48-72 hours from the time of original publication or broadcast.”

“For over 60 years, analysts from OSC’s domestic and overseas bureaus have monitored timely and pertinent open-source materials, including grey literature. Uniquely, WNC allows you to take advantage of the intelligence gathering experience of OSC,” the NTIS brochure says. Soon, that will no longer be true.

The WNC public feed from the Open Source Center is a highly attenuated version of what is available to official government users. Within government, copyright considerations are ignored, but for public distribution they must be respected, and so (with some exceptions) only information products whose creators have signed a royalty agreement with NTIS are publicly released.

Even with that significant limitation and the attendant public subscription fees, the NTIS World News Connection has remained a highly prized resource for news reporters, foreign policy analysts, students and interested members of the public.

I check it almost every day. Recently, for example, I have been following official statements from Russian officials who allege that the U.S. is covertly developing biological weapons for use against Russia in a military laboratory in the Republic of Georgia. The claim seems bizarre, but may nevertheless be politically significant. Detailed English-language coverage of the matter, or of many other stories of regional interest and importance, is not readily available elsewhere. (Moreso than in the past, however, portions of the material that is publicly accessible through WNC can be obtained elsewhere, through other news services or foreign websites.)

The reasons for the decision to terminate the World News Connection are a bit obscure. Producing it is not a drain on U.S. intelligence– the marginal costs of providing the additional feed to NTIS are close to zero. (The total budget for open source intelligence was about $384 million in FY2012, according to classified budget records obtained by the Washington Post from Edward Snowden.) However, the program is a headache for NTIS to manage, particularly since NTIS officials had to negotiate numerous contracts with media source providers to offer their products to the public. But the large majority of that work has already been accomplished, and now it will be rendered useless.

Mary Webster of the Open Source Center had initially proposed to cancel the public information feed as of September 30, according to an NTIS official. Then she was persuaded to grant a six month reprieve. But in the end, a cut-off date of December 31, 2013 was set.

If that comes to pass, it will be a blow to researchers and proponents of public intelligence. The Federation of American Scientists had previously argued that the U.S. government should actually expand public access to open source intelligence by publishing all unclassified, uncopyrighted Open Source Center products. (“Open Up Open Source Intelligence,” Secrecy News, August 24, 2011.) Instead, even the current range of publications will no longer be systematically released. (Only a small fraction of publicly unreleased OSC records ever seem to leak.)

Although the Open Source Center is managed by the Central Intelligence Agency, it is formally a component of the Office of the Director of National Intelligence. Yet the move the terminate public access to OSC products seemed to catch the ODNI unawares.

“Obviously our attention is on a possible lapse in appropriations, but we are looking into this,” said an ODNI spokesman on September 30, just before the government shutdown.

“The information provided through NTIS makes an irreplaceable contribution to U.S. national security,” wrote Prof. Gary G. Sick of Columbia University in an October 1999 letter, in response to a previous proposal to curtail coverage in the World News Connection.

The World News Connection “informs us about other countries in ways that otherwise would be nearly impossible,” Dr. Sick wrote. “It costs virtually nothing in comparison with almost any other national security system. It is not as sexy as a bomber or a missile, but its contributions to national security can be attested to by generations of policy-makers. I was in the White House during the Iranian revolution and the hostage crisis, and my respect for the power of this information was born at that time. I often found it more helpful than the reams of classified material that came across my desk at the NSC.”

Govt Shutdown to Have Limited Effect on Obamacare, Says CRS

“Substantial implementation” of the Affordable Care Act (ACA, also known as Obamacare) will continue even as most of the federal government is shutdown, the Congressional Research Service explained in a new report.

“A lapse in [government] funding does not automatically result in the suspension of applicable laws, including the filing and payment deadlines applicable to taxes created by the ACA…. Because a funding lapse is the result of legislative inaction, a government shutdown could not have the effect of either explicitly or implicitly repealing the underlying law,” the CRS report said.

See Affordable Care Act (ACA) and the Appropriations Process: FAQs Regarding Potential Legislative Changes and Effects of a Government Shutdown, September 27, 2013.

Other new and newly updated CRS reports obtained by Secrecy News include the following.

The President’s Emergency Plan for AIDS Relief (PEPFAR), U.S. Global HIV/AIDS, Tuberculosis, and Malaria Programs: A Description of Permanent and Expiring Authorities, September 27, 2013

In Brief: The September 2013 Terrorist Attack in Kenya, September 27, 2013

Farm-to-Food Price Dynamics, September 27, 2013

EPA Standards for Greenhouse Gas Emissions from Power Plants: Many Questions, Some Answers, September 30, 2013

To Fix U.S. Intelligence, Shrink It?

Criticism of U.S. intelligence takes many forms: Intelligence agencies are too secretive, or they are too leaky. They over-collect, or they under-perform. Or all of these, and more besides.

Many of the criticisms can be reduced to a single argument: The U.S. intelligence community has become too large to be properly managed.

Interestingly, this is a view that is held by some within U.S. intelligence itself, according to a new dissertation by a CIA sociologist who studied and worked at the National Counterterrorism Center (NCTC).

“I actually fear that the IC is too big,” a CIA analyst at the NCTC told sociologist Bridget Nolan. “It’s crossed the point where it’s [producing] healthy competitive analysis. We’ve gotten to the point where we’re in each other’s way. We’re hindering the mission.”

“Something that’s worth considering,” another CIA analyst said, “is completely counterintuitive, which is to make the CT [counterterrorism] community smaller, not larger. I think there are far more people at CIA HQ now than when we defeated the Soviet Union in the Cold War. What the hell?”

As for the NCTC itself, yet another analyst said, “If it were to continue existing, it should be about one-tenth its current size.”

A reduction in the size of the intelligence community might be a sovereign remedy for many of the problems currently afflicting U.S. intelligence analysis, Dr. Nolan suggests.

“For the analysts, this would address the hindrances that come along with a bloated bureaucracy,” including an avalanche of superfluous communications. “It would also help with what they perceived to be excessive redundancy, as opposed to a lower level of redundancy which was deemed necessary for safety and accuracy reasons.”

(Though not discussed by Dr. Nolan, a similar case could be made that the security clearance system has become too big, and that its enormous size tends to magnify its intrinsic defects. There are always going to be flaws in quality control in background investigations, along with human error, and bad judgment calls. But when there are nearly five million cleared personnel, each of which needs to be reviewed and renewed every five to ten years, then those unavoidable flaws start to become serious problems. If the security cleared population were around one million instead of five million, then it would be far more manageable, more effective, and less expensive than it is.)

Dr. Nolan’s dissertation focuses on the sociology of information sharing at the NCTC, where she worked as a CIA analyst in 2010-11. See “Information Sharing and Collaboration in the United States Intelligence Community: An Ethnographic Study of the National Counterterrorism Center” by Bridget Rose Nolan, PhD dissertation, University of Pennsylvania, 2013.

A more prevalent view holds that not only is the U.S. intelligence community not “too big,” as Dr. Nolan’s interviewees asserted, it is not big enough. “The current inventory of intelligence personnel is insufficient to fill all the positions that the services (in the MIP) and ODNI (in the NIP) recognize as valid requirements,” according to a new report on “Workforce Planning in the Intelligence Community” from the RAND Corporation.

Nolan’s work gives voice to intelligence analysts who are overwhelmed by information, flustered by competitive pressures from their home agencies, and weighed down by dubious security policies.

“The daily life of a counterterrorism analyst tends to be chaotic and features a paradox between a deluge of complicated information on the one hand and a perceived lack of proper access to information on the other.”

In a manner reminiscent of Erving Goffman’s work on “interaction ritual,” Nolan provides fresh insight into the characteristic behaviors of intelligence analysts in their work environment.

For example, she reports that ordinary conversations between NCTC analysts often involve a kind of competitive one-upsmanship, “in which intelligence officers ‘out-correct’ and ‘out-logic’ each other in the course of routine conversation to the point where any increased accuracy in what has been said no longer seems meaningful.”

“It may take place when a listener interrupts a speaker to make the speaker’s sentence more precise. It can also happen when a listener demands a logical explanation for a routine action that would require no explanation outside the field of intelligence…. Many analysts routinely engage each other this way, such that it becomes difficult to say anything definitively without being challenged–often at the expense of the true purpose of the interaction.”

Dr. Nolan contends that the process of acculturation into a particular intelligence agency almost inevitably creates obstacles to interagency cooperation. “The very qualities that make any individual intelligence agency strong are the same qualities that make information sharing and collaboration with other agencies difficult.”

“CIA creates loyalty by teaching its employees that they are the best and the brightest, and that their analytic and collection capabilities are second to none, but they do this in part by emphasizing the weaknesses of the other intelligence agencies…. Creating a strong in-group usually requires the designation of clear out-groups as well, often with accompanying negative sentiments and stereotypes, and these well-institutionalized notions cannot be overcome overnight.”

In particular, analysts say, CIA [which has its own Counterterrorism Center] disdains the National Counterterrorism Center and limits NCTC access to CIA information. “Essentially, CIA purposefully puts NCTC at an analytic disadvantage, and then faults NCTC for it.”

“NCTC’s attempts to create a new culture” of information sharing, Nolan concluded, “are not enough to overcome the much stronger socialization processes at the home agencies.”

On the other hand, “the emergence of NCTC may have taken some (but not all) of the sting away from the notoriously frosty CIA-FBI relationship.” According to one analyst interviewed by Nolan, “CIA and FBI have become closer because they have a mutual hatred for NCTC.”

(In my own limited experience as a visitor to NCTC, I found what seemed to be a competent group of analysts, including a notably high proportion of young women in positions of authority. This demographic aspect of NCTC was not covered by Nolan’s study.)

Nolan discusses the role of jargon and secrecy in intelligence agency culture. This material is mostly familiar or unsurprising, though there is a striking account of the cut-throat use of secrecy by some analysts “to purposefully exclude [other] analysts from drafting or co-authoring a paper that would otherwise be theirs.” In one case, “I was suddenly no longer able to even look at the paper that I’d written! She [a fellow analyst] compartmented me out of it and just went on ahead herself.” As one analyst put it, “information sharing is when YOU give ME your data.”

Among other factors, “the ways in which analysts undermine each other have created a system in which self-interest is frequently at odds with group-interest, thereby impeding sharing and collaboration.”

Nolan devotes a chapter to the rarely-considered topic of humor in intelligence. Ordinarily, she says, “displays of emotion are discouraged, but laughter is the great exception to this rule.”

“Humor is such a big part of the sociology of the IC that any accurate portrayal of this workplace must include it…. At the end of the day, humor is everywhere in the Intelligence Community, from the lowliest analyst to the President’s top advisers.”

“Employees use humor to initiate neophytes into the fold, to acknowledge and reinforce status differences, to release the tension they feel from the overwhelming nature of their tasks, and to subvert the tiresome challenges coordination [of written reports] presents.”

In truth, few of the samples of intelligence humor presented here are very funny. At a 2010 holiday party, analysts from the NCTC Al Qaeda and Sunni Extremism Group “took the Aerosmith line ‘Dude looks like a lady’ and rewrote it to say, ‘The suspect — whom we assess to be male — resembles a female.”

Overall, Nolan presents a frank account of life in an intelligence agency of a sort that is otherwise mostly unavailable to the public. She identifies obstacles to the prescribed practice of information sharing, and presents a persuasive critique of the NCTC mission statement. She proposes practical steps — beyond a possible reduction in the size of the IC — for improving performance as well as quality of life in the intelligence community.

True to form, the Central Intelligence Agency sought to block publication of Dr. Nolan’s dissertation, even though it did not contain classified information. Among other concerns, CIA said that it “may not be understood by the public.” So she resigned from the Agency, leaving her free to publish it. See “Covering the undercovers” by Susan Snyder, Philadelphia Inquirer, August 20, 2013.

National Counterterrorism Center Policy Number 1 is entitled “Information Sharing Rules of the Road.” A copy is available here.

The 2013 annual report to Congress from the ODNI Information Sharing Environment discusses recent progress in information sharing and some remaining challenges.

Pentagon Operations During a Government Shutdown, and More from CRS

If Congress fails to appropriate funds for the new fiscal year beginning October 1, then most of the government will be obliged to shut down and cease operations.

However, based on past practice, some national security-related activities would be exempted from the shutdown. A newly updated report from the Congressional Research Service anticipates that “many Department of Defense activities would continue, though other activities would halt.” CRS sorts through many of the relevant issues in Government Shutdown: Operations of the Department of Defense During a Lapse in Appropriations, September 26, 2013.

Update: On September 27, the Department of Defense held a press briefing on DoD planning for a possible government shutdown.

Other new and newly updated CRS reports that Congress has sought to withhold from online public distribution include the following.

Shutdown of the Federal Government: Causes, Processes, and Effects, September 25, 2013

Federal Funding Gaps: A Brief Overview, September 23, 2013

The Debt Limit: History and Recent Increases, September 25, 2013

Salaries of Members of Congress: Recent Actions and Historical Tables, September 24, 2013

Current Debates over Exchange Rates: Overview and Issues for Congress, September 26, 2013

Health Insurance Exchanges: Health Insurance “Navigators” and In-Person Assistance, September 25, 2013

Monuments and Memorials in the District of Columbia: Analysis and Options for Proposed Exemptions to the Commemorative Works Act, September 24, 2013

The Overseas Private Investment Corporation: Background and Legislative Issues, September 25, 2013

Tajikistan: Recent Developments and U.S. Interests, September 25, 2013

Kenya: Current Issues and U.S. Policy, September 23, 2013

Issues in Homeland Security Policy for the 113th Congress, September 23, 2013

Funding and Financing Highways and Public Transportation, September 23, 2013

The Army’s Armored Multi-Purpose Vehicle (AMPV): Background and Issues for Congress, September 24, 2013

Federalism, State Sovereignty and the Constitution: Basis and Limits of Congressional Power, September 23, 2013

Court Curbs CIA Use of a FOIA Exemption

The Central Intelligence Agency tried to make “inappropriate” use of an exemption from the Freedom of Information Act to withhold information that was not subject to the exemption, a federal court ruled last month.

In a significant interpretation of the Central Intelligence Agency Act, Judge Beryl A. Howell narrowed the permissible scope of records that CIA may withhold under Section 403g of the Act. That section allows CIA to exempt from release information concerning “the organization, functions, names, official titles, salaries, or numbers of personnel employed by” the Agency.

But in a 163 page opinion in response to a lawsuit brought by the non-profit National Security Counselors, Judge Howell ruled on August 15 that CIA was interpreting this provision in a manner that was “inappropriately broad” (discussed at pp. 99-122).

Instead of just withholding information about CIA organization and personnel, she concluded, the Agency was also wrongly attempting to withhold “information that relates to” CIA organization and personnel– which is almost everything the Agency does.

“The Court holds that the CIA may not invoke [50 USC] 403g to withhold information merely because that information may be used by CIA personnel to carry out their responsibilities or functions,” Judge Howell wrote. “The CIA Act does not protect all information about CIA functions generally… The CIA may only invoke 50 USC 403g to withhold information under the FOIA if it would reveal the specific categories of personnel-related information enumerated in the statute.”

If that seems like a common-sense conclusion, it is also a rare judicial setback for the CIA, and a reversal of the more familiar expansion of national security secrecy authority.

“This really is something pretty remarkable,” said Harry Hammitt of Access Reports, which monitors FOIA policy. “Judge Howell has narrowed the interpretation of the statute dramatically.”