The Foreign Intelligence Surveillance Court (FISC) told the Senate Intelligence Committee last March that there are “serious obstacles” that would prevent it from preparing summaries of Court opinions for declassification and public disclosure.

The Court was responding to a February 13, 2013 letter from Senators Dianne Feinstein, Jeff Merkley, Ron Wyden and Mark Udall.  They asked the Court to consider “writing summaries of its significant interpretations of the law in a manner that separates the classified facts of the application under review from the legal analysis, so as to enable declassification.”  The proposal stemmed from an amendment to the FISA Amendments Act that was introduced by Sen. Merkley but not adopted.  Sen. Feinstein offered to write a letter to the Court instead.  (Senators Ask Surveillance Court to Summarize Opinions, Secrecy News, February 27, 2013).

FISC Presiding Judge Reggie B. Walton replied in a March 27 letter that the preparation of unclassified (or declassifiable) summaries was not a simple matter.

First, he wrote, any summary would unavoidably involve the loss of legal nuance or technical complexity, creating a likelihood of misunderstanding or confusion.  Second, the legal analysis in most opinions is “inextricably intertwined” with classified information, making an unclassified summary difficult or impossible.  Third, the request would entail current judges summarizing the opinions of previous judges, which could be awkward or misleading.

Judge Walton did not completely dismiss the proposal.  He said that he would encourage the members of the Court “to consider structuring opinions to facilitate declassification, if they believe doing so is warranted in a particular case.”

Still, this shifts the primary declassification burden back to the Justice Department and the intelligence community.  If significant Court rulings are going to be declassified, executive branch agencies will have to be the ones to do it.

The Senate Intelligence Committee had refused to publicly release either its February letter or the FISC’s March reply.  Secrecy News had asked the FISC to release the correspondence and the Court was weighing the request, but the letters were first obtained and disclosed by the New York Times on June 8.

Senators Merkley, Lee, Leahy and Heller said they were preparing to introduce new legislation “to require the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States.”

A former CIA employee and NSA contractor named Edward Snowden identified himself as the source of the the serial revelations of classified documents concerning U.S. intelligence surveillance activities that were disclosed last week.

“I have no intention of hiding who I am because I know I have done nothing wrong,” he told The Guardian newspaper.

“I think that the public is owed an explanation of the motivations behind the people who make these [unauthorized] disclosures that are outside of the democratic model,” he told interviewer Glenn Greenwald in Hong Kong, where he has evidently taken refuge.

“When you are subverting the power of government– that’s a fundamentally dangerous thing to democracy.”

“I’m willing to go on the record to defend the authenticity [of these disclosures]. This is the truth.  This is what’s happening.  You should decide whether we need to be doing this,” he said of his disclosures.

In the history of unauthorized disclosures of classified information, a voluntary admission of having committed such disclosures is the exception, not the norm.  And it confers a degree of dignity on the action.  Yet it stops short of a full acceptance of responsibility. That would entail surrendering to authorities and accepting the legal consequences of “subverting the power of government” and carrying out “a fundamentally dangerous thing to democracy.”

There are occasions when breaching restrictions on classified information may be necessary and appropriate, suggested Judge T.S. Ellis, III of the Eastern District of Virginia in a June 2009 sentencing hearing for Lawrence Franklin, who pleaded guilty to disclosing classified information in the “AIPAC” case.  But in order to reconcile an unauthorized disclosure with the rule of law, he said, it must be done openly.

“I don’t have a problem with people doing that [disclosing classified information to the press] if they are held accountable for it…,” Judge Ellis said. “One might hope that, for example, someone might have the courage to do something that would break the law if it meant they’re the savior of the country; but then one has to take the consequences, because the rule of law is so important.”

“Simply because you believe that something that’s going on that’s classified should be revealed to the press and to the public, so that the public can know that its government is doing something you think is wrong, that doesn’t justify it. Now, you may want to go ahead and do it, but you have to stand up and take the consequences,” Judge Ellis said then.

The Department of Defense this week released the 2012 update of its doctrine on “Peace Operations” including new guidance on so-called Mass Atrocity Response Operations that are designed to prevent or halt genocide or other large-scale acts of violence directed at civilian populations.

A mass atrocity consists of “widespread and often systematic acts of violence against civilians by state or non-state armed groups, including killing, causing serious bodily or mental harm, or deliberately inflicting conditions of life that cause serious bodily or mental harm,” the updated Pentagon guidance said in Joint Publication 3-07.3 on Peace Operations.

“Mass atrocities can erupt at any time during any operation even in an initially uncontested peacekeeping or humanitarian relief operation,” it stated.

Mass Atrocity Response Operations, or MARO, is a newly adopted doctrinal concept that is detailed in Appendix B to the DoD Joint Publication on Peace Operations.  The document, dated 01 August 2012, was withheld from online public access on the DoD Joint Electronic Library.  But a copy was released to the Federation of American Scientists this week under the Freedom of Information Act.

The MARO concept (and even the term itself) is traceable to an influential advocacy effort by Sarah Sewall and her colleagues at the Harvard Kennedy School over the past several years.

In a 2010 Handbook on MARO, they wrote that “The United States does not currently recognize mass atrocities as a unique operational challenge, and there is no operational concept or doctrine that might help commanders understand the dynamics and demands of responding to mass atrocities. As a result, the US is not fully prepared to intervene effectively in a mass atrocity situation.”

Their project aimed to change that state of affairs, and they succeeded to a remarkable extent.  “The term MARO is not yet enshrined in military doctrine,” they wrote then, “but it should be.”  And now, with the new Joint Publication on Peace Operations, it is.

(Along the way, in the August 2011 Presidential Study Directive 10, President Obama declared that “Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.”)

But the Harvard MARO Project was not without critics.  Alan J. Kuperman of the University of Texas wrote that the 2010 MARO Handbook emphasized operational issues to the detriment of larger strategic considerations:  “Unfortunately, since military intervention can unintentionally increase the likelihood of atrocities, the ‘how’ of intervention is inextricably linked to debates about ‘whether’ such action is advisable.”

“Since the advent of widespread humanitarian military intervention in the 1990s, such operations have frequently backfired strategically, by increasing civilian suffering, contrary to their political objective,” he wrote.  (“Mass Atrocity Response Operations: Doctrine in Search of Strategy,” Genocide Studies and Prevention, April 2011, pp. 59-65.)

The new DoD doctrine appears cognizant of these ambiguities and countervailing factors, without being to resolve them in any categorical way.

“The PO [peace operations] force may face difficulties when conducting MARO,” the doctrine notes, “including the challenge of distinguishing between perpetrator and victim groups when the groups are intermingled, when atrocities are being committed by multiple groups, or when the actions are reciprocal… Because a MARO can alter power balances, former victim groups may be able to conduct their own revenge atrocities…. Many people may be misled into assisting in the commission of atrocities by being convinced that they are acting in self-defense.”

“MARO can include unique escalatory dynamics,” as further detailed in the Joint Publication.  “By pursuing MARO, the PO force may change the dynamics on the ground, leading to the potential for MARO to generate second- and third-order effects, intended or unintended.”

These are not issues that can be conclusively settled in military doctrine. “Most of the complexity in MARO — e.g., how to identify perpetrators, whether to treat the symptoms of the violence and/or the root causes, and the degree of risk to assume in moving swiftly — should be addressed by interagency mechanisms such as the President’s Atrocities Prevention Board.”

It will still be up to policymakers “to provide the PO [peace operations] force commander with clear guidance and objectives.”

The government declared today that the identity of the reporter to whom accused leaker Stephen Kim allegedly disclosed classified information is James Rosen of Fox News.  Mr. Rosen’s association with the case was publicly known for years.  But it was still classified.  Now it’s not.

“The United States hereby gives notice to the Court, defense counsel, and the defendant, that the following facts have been declassified,” prosecutors wrote in a pleading filed this morning. “The ‘reporter for a national news organization’ to whom the defendant is alleged to have made an unauthorized disclosure of national defense information, as charged in Count One of the Indictment, is James Rosen of Fox News.”

Mr. Rosen was controversially described in a recently revealed FBI affidavit as having acted in probable violation of the Espionage Act, and as a co-conspirator with the defendant, Mr. Kim.  His identity was known all along.  But as is all too often the case, declassification lags far behind the public record.

At the request of the FBI, the Foreign Intelligence Surveillance Court ordered a Verizon subsidiary to surrender the telephone records of its U.S. business customers to the National Security Agency for at least a three month period beginning last April 25.

The startling disclosure was reported last night by Glenn Greenwald of the Guardian. A copy of the Top Secret FISC order itself was also posted online by the Guardian.

Several features of the operation are problematic, to say the least. The FISC order is sweeping in scope, encompassing “all” call metadata (telephone numbers of callers and recipients, time, duration and more, though not the substantive contents of any conversation). It is unfocused on any designated target of investigation. It is prospective, requiring reporting of future telephone calls that have not yet taken place. And as such, it would seem to exceed any reasonable presumption of what the consent of the governed would allow.

At first glance, this appears to be a massive overreach by the government, as well as a massive failure of congressional oversight and judicial review to curb the Administration’s excess. (NYT, WP, WSJ)

The latest updates from the Congressional Research Service include the following items.

The Fair Labor Standards Act (FLSA): An Overview, June 4, 2013

International Climate Change Financing: The Climate Investment Funds (CIFs), June 3, 2013

International Environmental Financing: The Global Environment Facility (GEF), June 3, 2013

Iraq: Politics, Governance, and Human Rights, June 3, 2013

Crime and Forfeiture, May 13, 2013

The Inspector General at each government agency that classifies national security information is required by the Reducing Over-Classification Act of 2010 to review the agency’s classification program as part of an effort to combat overclassification.  Those reviews are now underway.  But if properly performed, they could put the Inspectors General at odds with senior officials at their agency who habitually overclassify.

In its latest semi-annual report to Congress last week, the Department of Justice Office of Inspector General (OIG) cited its ongoing work to evaluate Department classification activity.

“The OIG is reviewing the Department’s compliance with the Reducing Over-Classification Act to assess whether applicable classification policies, procedures, rules, and regulations have been adopted, followed, and effectively administered; and to identify policies, procedures, rules, or management practices that may result in misclassification of material,” the DoJ IG report said.

But at the Department of Justice, “misclassification of material” is arguably attributable to the senior leadership of the Department, if not the White House itself.

On May 22, Attorney General Eric Holder wrote to Congress to formally acknowledge that four U.S. citizens had been killed in counterterrorism operations, including Anwar al-Aulaqi and three others.  The death of Al-Aulaqi (and all but one of the others) at the hands of U.S. forces had of course been previously reported and had long been implicitly or explicitly acknowledged by U.S. officials.

But remarkably, Attorney General Holder wrote that this information “until now has been properly classified.”

In other words, information that everyone around the world who cared to know had already known for years was, according to Attorney General Holder’s letter to Congress, “properly classified” until May 22, 2013.  The disconnect between objective reality and official classification policy could hardly be more apparent.

Whether the DoJ Inspector General is prepared to take the Attorney General to task for tolerating or promoting this type of misclassification of material remains to be seen.

From another point of view, it could be argued that the Attorney General’s classification judgments are beyond reproach, particularly since the President’s executive order on classification makes the Attorney General the final arbiter of the order’s requirements (EO 13526, section 6.2c). If the Attorney General says something is properly classified, then by the terms of the executive order it is properly classified– by definition.

From that perspective, what the President himself once referred to as “the problem of over-classification” simply vanishes. The DoJ Inspector General could then report that the classification system is functioning perfectly, and that it is performing as intended.

The first of two rounds of Inspector General evaluations of classification activity is due to be completed by September 30, 2013.

New and updated reports from the Congressional Research Service that CRS is not authorized to release to the public include the following.

Closing the Guantanamo Detention Center: Legal Issues, May 30, 2013

“This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. It also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different forums (i.e., federal courts, court-martial proceedings, and military commissions).”

Bangladesh Apparel Factory Collapse: Background in Brief, May 23, 2013

“The April 24, 2013, collapse of an eight-story garment factory, called Rana Plaza, in Dhaka, Bangladesh, resulted in the deaths of more than 1,100 workers. It is reportedly now considered the deadliest accident in the history of the apparel industry…. This report provides an overview of the recent tragedy in Bangladesh and the Bangladesh economic environment and culture. It also notes the responses to the tragedy, to date, from Congress, the Administration, the ILO [International Labor Organization], the Bangladesh government, and the private sector. Finally, it raises some possible issues for Congress.”

Who Regulates Whom and How? An Overview of U.S. Financial Regulatory Policy for Banking and Securities Markets, May 28, 2013

“This report provides an overview of the regulatory policies of the agencies that oversee banking and securities markets and explains which agencies are responsible for which institutions, activities, and markets. Some agencies regulate particular types of institutions for risky behavior or conflicts of interest, some agencies promulgate rules for certain financial transactions no matter what kind of institution engages in them, and other agencies enforce existing rules for some institutions, but not for others. These regulatory activities are not necessarily mutually exclusive.”

Airline Passenger Rights: The Federal Role in Aviation Consumer Protection, May 20, 2013

“The deregulation of the airline industry in the United States in 1978 eliminated most governmental control over most business practices of airlines. However, the federal government continues to regulate certain practices for the protection of the airlines’ customers, in addition to its long-standing role in overseeing air safety…. This report examines aviation consumer protections in the post-deregulation era. It explains the roles of Congress and the U.S. Department of Transportation (DOT) in protecting airline consumers, and discusses some major passenger rights issues and related laws and regulations.”

International Food Aid Programs: Background and Issues, May 20, 2013

“For almost six decades, the United States has played a leading role in global efforts to alleviate hunger and malnutrition and to enhance world food security through the sale on concessional terms or donation of U.S. agricultural commodities. The objectives for foreign food aid include providing emergency and humanitarian assistance in response to natural or manmade disasters, and promoting agricultural development and food security. In its FY2014 budget submission to Congress, the Administration proposes major changes in the funding and structure of both emergency and development food aid programs (Food for Peace Title II)….  The Administration’s proposals will be fiercely debated as Congress takes up the President’s budget request.”

Chile: Political and Economic Conditions and U.S. Relations, May 28, 2013

Latin America and the Caribbean: Fact Sheet on Economic and Social Indicators, May 30, 2013

The 2013 Farm Bill: A Comparison of the Senate Agriculture Committee-Reported Bill (S. 954) with Current Law, May 30, 2013

Military Parents and Child Custody: State and Federal Issues, May 31, 2013

The Federal Minimum Wage: In Brief, May 30, 2013

Congressional Gold Medals, 1776-2012, May 30, 2013

Syria’s Chemical Weapons: Issues for Congress, May 31, 2013

The Pentagon’s reliance on contractors to support military operations has now become so extensive that some argue it should be… even more extensive!

These advocates “believe that DOD should be prepared to effectively award and manage contracts at a moment’s notice, anywhere in the world, in unknown environments, and on a scale that may exceed the total contract obligations of any other federal agency,” according to a new report from the Congressional Research Service.

As of March 2013, there were approximately 108,000 DoD contractor personnel in Afghanistan, CRS reports, representing 62% of the total force.

“Contractors provide a wide range of services, from transportation, construction, and base support, to intelligence analysis and private security,” CRS notes. “The benefits of using contractors include freeing up uniformed personnel to conduct combat operations; providing expertise in specialized fields, such as linguistics or weapon systems maintenance; and providing a surge capability, quickly delivering critical support capabilities tailored to specific military needs.”

But “Just as the effective use of contractors can augment military capabilities, the ineffective use of contractors can prevent troops from receiving what they need, when they need it, and can lead to the wasteful spending of billions of dollars. Contractors can also compromise the credibility and effectiveness of the U.S. military and undermine operations, as many analysts believe have occurred in recent operations in Iraq and Afghanistan.”

The new CRS report sifts through the implications of this situation, and proposes an oversight agenda for Congressional consideration.  See Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress, May 17, 2013.

Other new and updated CRS reports that Congress has directed CRS not to release to the public include the following.

Compounded Drugs, May 23, 2013

Financial Stability Oversight Council: A Framework to Mitigate Systemic Risk, May 21, 2013

Federal Research and Development Funding: FY2014, May 23, 2013

SBA Assistance to Small Business Startups: Client Experiences and Program Impact, May 22, 2013

501(c)(4)s and Campaign Activity: Analysis Under Tax and Campaign Finance Laws, May 17, 2013

Restrictions on Itemized Tax Deductions: Policy Options and Analysis, May 21, 2013

The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Policymakers, May 21, 2013

Ukraine: Current Issues and U.S. Policy, May 24, 2013

Congressional Primer on Major Disasters and Emergencies, May 24, 2013

Severe Thunderstorms and Tornadoes in the United States, May 22, 2013

The Foreign Intelligence Surveillance Court issued an order on Friday directing the Department of Justice to respond no later than June 7 to a motion filed on May 23 by the Electronic Frontier Foundation (EFF).  The order was signed by Judge Reggie B. Walton, presiding judge of the surveillance court.

EFF had asked the Court to formally consent to the release of records in which the Court found government surveillance activities to be inconsistent with the Fourth Amendment to the Constitution.  In response to a prior Freedom of Information Act request, the Justice Department had asserted that Court rules did not permit such disclosure, though that position is not explicitly stated in Court rules.  To overcome this impasse, EFF asked the Court to affirmatively consent to disclosure of the requested records.

The case was first reported in Group wants special court to release ruling on unlawful U.S. surveillance by Ellen Nakashima, Washington Post, May 22.

For further background, see EFF Takes FOIA Fight Over Secret Wiretaps to the Foreign Intelligence Surveillance Court by Mark Rumold, May 22.

When the Central Intelligence Agency prepared its famous 1973 compilation of dubious and illegal Agency activities known as the “Family Jewels,” it included several instances in which reporters were tracked or monitored in order to identify their sources.  While these activities were technically “approved” by senior Agency officials, they also “conflict[ed] with the provisions of the National Security Act of 1947,” presumably since they exceeded CIA’s charter and jurisdiction.

But now, in the wake of recent developments involving seizure of Associated Press telephone records and the identification of Fox News reporter James Rosen as a purported co-conspirator in a leak of classified information, such once disreputable tracking of journalists threatens to become the new normal.

“At the direction of the DCI, a surveillance was conducted of Michael Getler of the Washington Post during the periods 6-9 October, 27 October-10 December 1971 and on 3 January 1972,” the Family Jewels document stated. “In addition to physical surveillance, an observation post was maintained in the Statler Hilton Hotel where observation could be maintained of the building housing his office. The surveillance was designed to determine Getler’s sources of classified information of interest to the Agency which had appeared in a number of his columns.”

Likewise, “At the direction of the DCI, surveillance was conducted of Jack Anderson and at various times his ‘leg men,’ Brit Hume, Leslie Whitten, and Joseph Spear, from 15 February to 12 April 1972. In addition to the physical surveillance, an observation post was maintained in the Statler Hilton Hotel directly opposite Anderson’s office. The purpose of this surveillance was to attempt to determine Anderson’s sources for highly classified Agency information appearing in his syndicated columns.” (“Surveillance of Journalists: A Look Back,” Secrecy News, September 19, 2012).

Those were seemingly rare and isolated incidents.  Although “DOJ and the FBI receive numerous media leak referrals each year, the FBI opens only a limited number of investigations based on these referrals,” the FBI told Congress in 2010 answers to questions for the record.  That is due in part to the fact that the FBI deliberately avoided investigations of news media organizations.

“We have interpreted DOJ’s formal policy on obtaining information from members of the news media, codified at 28 C.F.R. §50.10, as requiring that such leak investigations focus on potential leakers rather than reporters,” FBI Director Robert Mueller told the Senate Judiciary Committee. “While this policy appropriately balances the importance of First Amendment freedoms with the strong national security interest in keeping classified information from disclosure, it necessarily limits the prosecutor’s access to the reporter who received the sensitive information. In the rare case in which DOJ issues a subpoena to a reporter for information about the source of a leak, the information is not necessarily produced.” (“FBI Found 14 Intel Leak Suspects in Past 5 Years,” Secrecy News, June 21, 2010).

But today, any news organization that successfully “solicits” disclosure of classified information evidently must consider the possibility that the records of its communications will be subject to government review, contemporaneously or even long after the fact.  In the absence of congressional intervention to restore the previous status quo, the mere prospect of such monitoring will induce a dramatic change in the landscape of national security reporting, and in the character of all contacts between government officials and members of the public.

One thin line that has not yet been crossed is the prosecution of journalists for violating the Espionage Act by reporting classified information.

A Wall Street Journal editorial yesterday suggested oddly that such a prosecution had already occurred:  “We can recall only a single such prosecution of a journalist under the Espionage Act in 95 years,” the Journal editors wrote (“A Journalist ‘Co-Conspirator’,” May 20).  But this appears to be an error, and the editors did not identify the case they had in mind.

The nearest approach to the prosecution of a reporter or a news organization for violating the Espionage Act seems to have occurred during World War II when the Chicago Tribune published a story concerning Japanese war plans based on classified intelligence.  In 1942, a grand jury was convened at the request of the U.S. Navy to weigh charges against the Tribune or its reporter, Stanley Johnston, but the grand jury was soon disbanded. No charges were brought, and no prosecution ensued.  The episode was vividly recounted by Gabriel Schoenfeld in chapter 6 of his 2010 book Necessary Secrets.  Mr. Schoenfeld indicated via email today that he was not aware of any actual prosecutions of journalists under the Espionage Act.

A timeline of leak investigations involving journalists from 2003 to the present was presented by Shane Harris of the Washingtonian’s Dead Drop blog.

The possibility of indicting reporter Seymour Hersh in 1975 was raised by then-deputy White House chief of staff Dick Cheney, as described by PBS Frontline (h/t Ryan Goodman).  It was not pursued.

William Z. Slany, the former Historian of the Department of State and a champion of efforts to declassify the secret history of U.S. foreign policy, passed away earlier this month.

Dr. Slany served in the State Department’s Office of the Historian for 42 years, and was The Historian for the last 18 of those years, until his retirement from the Department in September 2000, according to a notice circulated by David H. Herschler, the Deputy Historian of the State Department.

In his capacity as Historian of the Department, Dr. Slany helped prepare 16 volumes of the Foreign Relations of the United States series, the official documentary record of U.S. foreign policy, and he oversaw the publication of 125 FRUS volumes.  He led an interagency study to prepare a two volume account of “Nazi gold” and other stolen assets from World War II.  He participated in the development and implementation of the 1991 statute that formally required the State Department to present a “thorough, accurate, and reliable” record of U.S. foreign policy and diplomatic history.

Though dignified and softspoken, Dr. Slany could be combative in defense of an open and honest historical record. And while it is unusual for a senior official of one agency to criticize the conduct of another agency publicly and on the record, he was willing to do so when he thought it was justified.

In 1999, for example, he berated the Central Intelligence Agency for making what he termed “unreasonable” excisions in its declassified records of Cold War covert actions.

“What has become apparent and obvious is the Agency’s unwillingness to acknowledge amounts of money, liaison relationships, and relationships with organizations, information that any ‘reasonable person’ would believe should be declassified,” Dr. Slany said, according to the minutes of a September 1999 meeting of the State Department Historical Advisory Committee. “The process has revealed the bare bones of CIA’s intransigence,” he said.

“Bill Slany was one of the good guys in the declassification/secrecy game,” said Rutgers historian Warren Kimball, a former chair of the State Department Historical Advisory Committee.

“He played a key role in the maneuvers that, in 1991, created the landmark legislation that forced open CIA, Energy Department (AEC) and other long-secret files so they could be declassified and published in the State Department series, Foreign Relations of the United States.  His quiet, firm mantra was simple: in a democracy, the citizenry must have access, even if it came thirty years after the fact.  The State Department he loved was not always as idealistic as he wished, but he never stopped pushing the institution, and the U.S. Government, toward openness,” Prof. Kimball wrote via email.