The Government Accountability Office is among the most potent and productive tools of government oversight available. Perhaps for that reason, U.S. intelligence agencies have been reluctant to cooperate with GAO investigations.

Sen. Daniel Akaka introduced legislation last year to reaffirm GAO authority to investigate intelligence agency activities, and that legislation was the subject of a Senate hearing in February. All of the witnesses, including myself (pdf) and then-GAO Comptroller General David M. Walker (pdf), urged an increased role for GAO in intelligence oversight.

See the record of the February 29, 2008 hearing before the Senate Homeland Security and Governmental Affairs Committee on “Government-Wide Intelligence Community Management Reforms.”

As of March 2008, there were 1,000 GAO employees with Top Secret security clearances out of 3,153 total staff. Of those, 73 held SCI (“sensitive compartmented information”) clearances for access to intelligence information, according to a GAO letter supplied for the hearing record (pdf).

A bill adopted last week in the House, called the “Government Accountability Office Improvement Act” (HR 6388) did not explicitly address intelligence oversight by GAO.

Almost everything about the Comprehensive National Cyber Security Initiative (CNCI), established by National Security Presidential Directive 54 and Homeland Security Presidential Directive 23, is classified.

But following a classified March 2008 hearing on the subject, Senators Joe Lieberman and Susan Collins of the Senate Homeland Security and Governmental Affairs Committee teased out a few unclassified details about the effort.

“The response (pdf) includes information on the National Cyber Security Center, how privacy will be protected under the CNCI, how success of the initiative will be measured, and how the Department views the private sector’s role in the initiative,” the Senators noted in a news release. “The Department chose to redact information relating to contracting at the National Cyber Security Division (NCSD). The senators have asked DHS explain their reasons for the redactions.”

See also “DHS stays mum on new ‘Cyber Security’ center” by Stephanie Condon, CNET News, July 31.

And see, relatedly, the record of a May 21, 2008 hearing before the House Homeland Security Committee on “Implications of Cyber Vulnerabilities on the Resilience and Security of the Electric Grid” (pdf).

The Department of Justice National Security Division (NSD) “has dramatically broadened the scope of its national security oversight role,” according to a Department news release.

“The National Security Division plays a vital role in ensuring that national security investigations are conducted properly and with respect for the civil liberties and privacy interests of Americans,” said Matt Olsen, Deputy Assistant Attorney General for the Office of Intelligence. “Our enhanced oversight efforts over the past year represent a solid foundation from which we will continue to build as we work with the FBI and other intelligence agencies to achieve this goal.”

The news release is silent on the results, if any, of the new oversight reviews performed by NSD personnel.

But Division spokesman Dean Boyd told Secrecy News generally that “These reviews were designed to identify compliance issues and they have served that purpose. Where they have identified issues, the reviews have helped provide the factual basis to take appropriate follow-up action.”

A bill introduced by Sen. Dianne Feinstein and several Senate colleagues last week would “end coercive interrogations and secret detentions by the Central Intelligence Agency.”

“These practices have brought shame to our Nation, have harmed our ability to fight the war on terror, and, I believe, violate U.S. law and international treaty obligations,” Sen. Feinstein said.

“Our Nation has paid an enormous price because of these interrogations. They cast shadow and doubt over our ideals and our system of justice. Our enemies have used our practices to recruit more extremists. Our key global partnerships, crucial to winning the war on terror, have been strained,” she said.

“Look at two of our closest allies in the world. The British Parliament no longer trusts U.S. assurances that we will not torture detainees. The Canadian Government recently added the United States to its list of nations that conduct torture.”

“This is not the country that we want to be,” Sen. Feinstein said.

The bill is co-sponsored by Senators Rockefeller, Whitehouse, Hagel, Feingold, and Wyden.

The President would no longer be able to secretly modify or revoke a published executive order if a new bill introduced in the Senate yesterday becomes law.

The bill, sponsored by Sen. Russ Feingold and Sen. Sheldon Whitehouse, responds to a Justice Department Office of Legal Counsel opinion that was revealed last year by Senator Whitehouse on the Senate floor. According to that unreleased opinion, “There is no constitutional requirement for a President to issue a new Executive order whenever he wishes to depart from the terms of a previous Executive order. Rather than violate an Executive order, the President has instead modified or waived it.”

What this means is that any published executive order may or may not actually be in effect. It may or may not correspond to the legal framework that governs the executive branch. The public has no way of knowing.

“No one disputes that a President can withdraw or revise an Executive Order at any time,” said Senator Feingold yesterday. “That is every President’s prerogative. But abrogating a published Executive order without any public notice works a secret change in the law.”

“Worse,” he said, “because the published Order stays on the books, it actively misleads Congress and the public as to what the law is.”

To remedy that problem, the new bill requires notification of any change.

“If the President revokes, modifies, waives, or suspends a published Executive Order or similar directive, notice of this change in the law must be placed in the Federal Register within 30 days. The notice must specify the Order or the provision that has been affected; whether the change is a revocation, a modification, a waiver, or a suspension; and the nature and circumstances of the change.”

“The bill does not require the publication of classified information about intelligence sources and methods or similar information. The basic fact that the published law is no longer in effect, however, cannot be classified,” Sen. Feingold said.

“On rare occasions, national security can justify elected officials keeping some information secret,” he said, “but it can never justify lying to the American people about what the law is. Maintaining two different sets of laws, one public and one secret, is just that–deceiving the American people about what law applies to the government’s conduct.”

See Sen. Feingold’s July 31 introduction of the Executive Order Integrity Act of 2008 (S. 3405).

At an April 30 hearing of Sen. Feingold Senate Judiciary subcommittee, I testified on the various categories of secret law, including the problem of “reversible executive orders.” That testimony is available here (pdf).

Following a lengthy interagency review process, the White House yesterday unveiled its amendments to Executive Order 12333, the foundational document on “United States Intelligence Activities” that was originally issued by President Reagan in 1981.

The new executive order reflects institutional changes that have occurred in recent years. In particular, it reinforces the authority of the Director of National Intelligence to oversee, coordinate and direct the activities of the sixteen-member intelligence community.

The ACLU found reason to criticize the revised order, which it said weakened protections against domestic spying. Members of Congress objected because they said they were not adequately consulted. To me, the changes seemed unexpectedly minor and in some cases positive.

The new executive order affirms, for example, that “The United States Government has a solemn obligation… to protect fully the legal rights of all United States persons, including freedoms, civil liberties, and privacy rights guaranteed by Federal law.” Such a statement, in a presidential order that is intended to direct a rule-driven bureaucracy, is not nothing.

The old Reagan order did not even mention the words “civil liberties” or “privacy.” (Nor did it mention the term “covert action,” which the new order uses instead of the old euphemism “special activities.”)

To criticize (or praise) the provisions of the new executive order is to presume its status as a controlling document and a definitive source on intelligence policy. But a more troubling question is how much the order actually matters.

At a White House press briefing yesterday, one unnamed reporter [update 8/4/08: it was Pamela Hess of the Associated Press] asked: “What do you have to say to folks that say, essentially, it’s nice that you have this stuff in the executive order, but it doesn’t necessarily mean anything when a President gets it into his mind that he needs or wants to do something that some people would find outside of those bounds?”

A “senior administration official” replied: “I think what we would say to that is that the executive order reaffirms the nation’s longstanding commitment to protecting civil liberties. It maintains all of the protections that are in place to do so. It requires that all procedures have to be approved by the Attorney General.”

But the question seems to be better than the answer, particularly since the Bush Administration’s so-called Terrorist Surveillance Program may have violated the terms of this very executive order on intelligence activities.

“The administration’s warrantless wiretapping program not only violated the Foreign Intelligence Surveillance Act; it was inconsistent with several provisions of Executive Order 12333, the longstanding executive order governing electronic surveillance and other intelligence activities,” said Sen. Russ Feingold, who was briefed on the program as a member of the Senate Intelligence Committee.

“Apparently, the administration believed its actions constituted a tacit amendment of that Executive Order. And who knows how many other Executive Orders have been secretly revoked or amended by the conduct of this Administration,” he said.

The new Feingold/Whitehouse bill described above that prohibits secret modifications or waivers of published executive orders would close this loophole. In so doing, it would also bolster the integrity and credibility of intelligence directives like Executive Order 12333.

In a new directive that challenges the insular culture of U.S. intelligence agencies, Director of National Intelligence J. Michael McConnell has ordered analysts to cultivate relationships with outside experts “whenever possible” in order to improve the quality of intelligence analysis.

The DNI’s July 16 directive on “Analytic Outreach” (pdf) establishes procedures for implementing such outreach, including incentives and rewards for successful performance.

“Analytic outreach is the open, overt, and deliberate act of an IC [intelligence community] analyst engaging with an individual outside the IC to explore ideas and alternate perspectives, gain new insights, generate new knowledge, or obtain new information,” the directive states.

“Elements of the IC should use outside experts whenever possible to contribute to, critique, and challenge internal products and analysis….”

“Sound intelligence analysis requires that analysts… develop trusted relationships” with “experts in academia; think tanks; industry; non-governmental organizations; the scientific world; …and elsewhere.”

There are, however, significant limits to any such relationships.

“Analysts in the IC shall never discuss classified or sensitive information with outside experts who are not appropriately cleared,” the directive warns.

But since almost everything in intelligence is considered classified or at least sensitive, that does not leave much room for analysts to “engage” and share information with outside experts who are not interested in a cleared contractual relationship with an intelligence agency.

The Central Intelligence Agency, for example, insists that even unclassified, non-copyrighted publications of its Open Source Center should be “treated as copyrighted” and “must not be disseminated to the public.”

Under such circumstances and without a modicum of reciprocity between analysts and outside experts there can be no “trusted relationships.”

The directive seems to recognize the problem. “Unnecessary or unreasonable restrictions that discourage collaboration with outside experts may increase the likelihood that alternate perspectives will not be considered and debatable judgments will remain unchallenged.”

See Intelligence Community Directive 205, “Analytic Outreach,” July 16, 2008. Other Intelligence Community Directives are available here.

Though rarely discussed, interpersonal trust is frequently a prerequisite for voluntary information sharing not only between government officials and members of the public, but even among government officials themselves.

“The effective flow of information and knowledge is facilitated through networks of trust,” a new report from the congressionally mandated Project on National Security Reform nicely observed. Yet such networks within government are fragile and sometimes non-existent, particularly when the individuals involved simply don’t know each other.

The personnel security clearance system is supposed to serve as an objective validator of a government employee’s trustworthiness, but in practice decisions to share information are often dictated by whether the recipient is trusted or not, not whether he is cleared or not.

“Trust tends to emerge between highly committed individuals on an ad hoc basis and within personal relationships,” the Project report said. “In the current national security system, however, disparate organizational cultures, parochial leadership styles and visions, infrequent face-to-face meetings, and frequent rotations of staff make trust difficult to achieve.”

Additional barriers impede communication between government and the public. Some officials seem to fear, disdain or dismiss unstructured or unpredictable interactions with members of the public. On the other hand, according to the new report, “Some NGOs … show outright hostility to the military actors in the national security system, which can greatly complicate the development and flow of knowledge among the actors and decision makers who need it.”

The new report of the Project on National Security Reform, which aims to promote a new national security act and various structural changes in the national security system, is available here.

The Department of Defense has embarked on a significant modification of its intelligence apparatus, creating a new human intelligence center within the DIA, abolishing a controversial counterintelligence agency, and reorganizing the Office of the Under Secretary of Defense for Intelligence.

A new Defense Counterintelligence and Human Intelligence Center (DCHC) is being established at the Defense Intelligence Agency to manage, develop and execute DoD counterintelligence and human intelligence activities worldwide.

It will take over many of the functions and authorities of the Counterintelligence Field Activity (CIFA), which drew criticism for its unauthorized domestic surveillance activities, including the collection of information on U.S. antiwar groups. CIFA will be terminated effective August 3.

Unlike CIFA, the new DCHC “shall NOT be designated as a law enforcement activity and shall not perform any law enforcement functions previously assigned to DoD CIFA,” according to a July 22 memorandum memorializing the new changes (pdf).

However, the DCHC will be responsible for developing an “offensive counterintelligence operations” (OFCO) capability for the Department of Defense, which may entail efforts to penetrate, deceive and disable foreign intelligence activities directed against U.S. forces.

The new organization was described in a July 22 memorandum from the Deputy Secretary of Defense on “Establishment of the Defense Counterintelligence and Human Intelligence Center (DCHC).”

Meanwhile, the Under Secretary of Defense for Intelligence, James R. Clapper, Jr., has moved to reorganize his office to strengthen HUMINT and CI “integration and synchronization” and to structure the office around four functional areas.

That move was first reported last week by Inside the Pentagon, which interviewed defense intelligence officials on the background and motivations for the changes, and obtained an internal memorandum outlining the changes. See “Pentagon Shakes Up Intelligence Directorate’s Organization” by Christopher J. Castelli, July 24.

See the June 18, 2008 memorandum from Under Secretary Clapper on “Reorganization of the Office of the Under Secretary of Defense for Intelligence” (pdf), obtained by Inside the Pentagon and marked “for official use only” (not yet “controlled unclassified information”).

The Department of Justice National Security Division (NSD) that was formed in 2006 by the merger of several DOJ intelligence and national security elements is attracting criticism from some intelligence officials who say that it is biased in favor of the FBI or, alternatively, that it lacks the agility that an intelligence organization needs.

NSD was established in response to a recommendation of the 2005 Silberman-Robb Commission on Weapons of Mass Destruction. NSD combined the Office of Intelligence Policy and Review (OIPR), which processed applications for domestic surveillance under the Foreign Intelligence Surveillance Act, together with Criminal Division sections on Counterespionage and Counterterrorism in order, the WMD Commission said (pdf), to “give the [united] office better insight into actual intelligence practices and make it better attuned to operational needs.”

Though it has gone unremarked, NSD is now led largely by former officials of the Federal Bureau of Investigation.

The Division head, J. Patrick Rowan, was a special counsel in the FBI. Matthew G. Olsen, who now heads the NSD Office of Intelligence (formerly OIPR), was also an FBI special counsel. (Previously, OIPR was led by James A. Baker, a career civil servant.) Charles Steele, who serves as section chief for Intelligence Operations in the Office of Intelligence, is a former chief of staff to the FBI director.

“OIPR’s strength was its independence,” wrote one Secrecy News correspondent who is an intelligence community employee. “Now it seems to function as an arm of the FBI. This is a step back to the 1960s.”

That claim was disputed by an intelligence official in another agency, who said the fact that these individuals worked at FBI is “almost irrelevant. There is a problem, but that’s not it.”

“The problem,” this official said, “is that every one is a former prosecutor. None of them knows much about intelligence or about FBI operations. They’re very good at what they do, but what they do is not intelligence.”

NSD, this official said, is “broken.” “The counterespionage section is stuck in the 1980s. Counterterrorism is pretty good. Oversight works okay, up to a point.” But, from his perspective, the FISA review process is still “infected” with a law enforcement mentality.

FISA reviewers at NSD “keep asking for things they don’t need and should not have,” he said. Like what? Like “who is the source of this information?” or “How much was this source paid?”

Doesn’t the record number of FISA authorizations (pdf) being processed by NSD provide compelling evidence that inappropriate barriers to surveillance, if any, have been lowered?

“Not really,” according to the official. “The high numbers are largely due to renewals” of previous authorizations. “The cases get a better scrub from FBI than from NSD.”

Is he proposing that intelligence officers staff the NSD? “No, you need lawyers, but lawyers with stronger intelligence backgrounds. There aren’t so many of those.”

Current and former Justice officials contacted by Secrecy News declined to comment. Inquiries to the Justice Department Office of Public Affairs were not answered.

Prosecutors in the trial of two former officials of the American Israel Public Affairs Committee who are charged with mishandling classified information filed a pre-trial appeal (pdf) on Friday. The district court, they said, should not have ruled that two particular classified documents were admissible into evidence.

In appealing the admissibility of those documents, the prosecutors also took aim at a 2006 court ruling that imposed a high burden of proof on the government to show that the defendants had specific intent, among other things, to harm the United States or benefit a foreign country. Without such a showing of intent, the Espionage Act provisions under which they are charged would be unconstitutional, the lower court ruled in 2006. (See “Ruling in AIPAC Case Interprets Espionage Act Narrowly”, Secrecy News, February 20, 2007).

In its appeal, the government blasted that prior ruling.

“The district court not only manufactured unwise and unnecessary new elements of a federal criminal offense, but in doing so exceeded its constitutional authority and replaced its judgment for that of the Congress,” prosecutors wrote.

If their reasoning were to prevail, then anyone who deals with classified information without official authorization, as many national security reporters and others routinely do, could conceivably be subject to prosecution under the Espionage Act.

The partially redacted appeal brief also appeared to reframe the AIPAC case as a traditional espionage matter, stressing the unauthorized disclosure of classified information to the government of Israel and downplaying the alleged unauthorized disclosures to the press and other persons that were prominent in the original indictment.

“Clandestinely obtaining and passing U.S. government classified information to the Israeli government does not represent participation in a ‘public debate’ to ‘influence United States foreign policy.’ The fact that defendants may have at some point in the conspiracy mixed lawful conduct with their illegal conspiracy to obtain and disclose NDI [national defense information] is irrelevant,” prosecutors argued.

See the Brief of the United States presented to the Fourth Circuit Court of Appeals on July 25.

The trial of the two defendants, Steven Rosen and Keith Weissman, has most recently been re-set for October 28.

The new government brief was also reported in “Prosecutors Argue for More Secrecy in Aipac Case” by Josh Gerstein, New York Sun, July 28.

Senator Ron Wyden (D-OR) wrote to the Public Interest Declassification Board (PIDB) last week to request that it review the classified opinions of the Foreign Intelligence Surveillance (FIS) Court from the last ten years and make recommendations regarding their classification or declassification.

The FIS Court not only grants (or, rarely, denies) authorization for domestic intelligence surveillance. It also from time to time reinterprets the requirements of the Foreign Intelligence Surveillance Act, producing a secret body of common law.

In response to a motion filed by the ACLU last year, Judge John D. Bates of the FIS Court acknowledged (pdf) that the Court had issued several “legally significant decisions that remain classified.” The anomaly of secret law, including classified FISA court rulings, was explored in an April 30, 2008 hearing before a Senate Judiciary subcommittee chaired by Sen. Russ Feingold.

“It is impossible for Congress to evaluate the effectiveness of the nation’s surveillance laws without a thorough understanding of how the court is interpreting those laws,” wrote Sen. Wyden. “This is exactly the kind of issue that the Public Interest Declassification Board was created to tackle.”

The PIDB is a congressionally-chartered presidential advisory board that is supposed to provide recommendations on classification policy and to review the classification status of contested documents. It is composed of private sector personnel appointed by the President and the Congress. The current chairman is Martin Faga, a former director of the National Reconnaissance Office.

Although the PIDB statute authorizes the Board to act on congressional requests, such requests are supposed to be “made by the committee of jurisdiction,” not by individual members. Consequently, it is uncertain whether the PIDB will act upon Senator Wyden’s letter. PIDB officials were not immediately available for comment.