When government information is classified or otherwise withheld from release, the possibility of government accountability to the public is undermined.  But when the executive branch withholds crucial information from Congress, that may pose an even more fundamental challenge to democratic governance.

“The administration has refused to share Presidential Policy Directive 11 (PPD 11) with the Congress,” said Sen. Richard Lugar last year at a hearing of the Senate Foreign Relations Committee which has just been published.  PPD 11 is the Obama Administration document that set the terms of reference for the Nuclear Posture Review Implementation Study, which will dictate the future size and configuration of the U.S. nuclear arsenal.

Sen. Lugar voiced a polite objection to this unilateral act of Obama Administration secrecy:  “I simply would say that our country is strongest and our diplomacy is most effective when nuclear policy is made by deliberate decisions in which both the legislative and executive branches fully participate.”

The withholding of presidential directives from Congress is not a new practice.  A 1992 investigation by the General Accounting Office found that Congress had not been routinely notified of the preparation or issuance of national security directives and that none of the relevant congressional committees “are regularly receiving copies” of such directives.

It is known that presidential directives can be used to establish national policy, to direct the implementation of policy, and to authorize the commitment of government resources. But without access to detailed information about the directives, GAO reported in 1992, “it is impossible to satisfactorily determine how many NSDs [national security directives] issued make and implement U.S. policy and what those policies are.”

On the other hand, unlike many executive orders, presidential directives “do not appear to be issued under statutory authority conferred by Congress and thus do not have the force and effect of law,” GAO said. Certainly such directives cannot limit congressional authority or power to legislate.

Yesterday eleven Senators wrote to President Obama to ask him to direct the release to Congress “the secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.”

“It is vitally important… for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards,” the Senators wrote.

Later in the day, Mike Isikoff of NBC News obtained a confidential Department of Justice White Paper entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” (See other reporting and commentary from NY Times, WashPost, Politico, Emptywheel and ACLU.)

NBC said the document had been “provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.”  This non-disclosure condition, now abrogated, is difficult to understand on national security grounds, but easier to comprehend as an attempt to manage or evade public controversy.

At any rate, the government’s legal argument, such as it is, is now on the public record.  The most important task before Congress is not to plead for release of additional, underlying source documents, but to respond as a legislative body to the Administration’s now-public assertion of its position.  To do nothing is to endorse it.

The Central Intelligence Agency has published a series of essays on intelligence and the 1973 Arab-Israeli war, to coincide with a symposium on the subject held last week at the Nixon Presidential Library.

The publication itself (“President Nixon and the Role of Intelligence in the 1973 Arab-Israeli War”) is a welcome addition to the literature.  But it also “includes some embarrassing errors,” wrote Amir Oren in the Israeli paper Ha’aretz on February 3 (“CIA report on Yom Kippur War: Israel had nuclear arsenal”).

“For example,” Oren wrote, “in the photograph labeled ‘An Egyptian soldier holding up a portrait of President Sadat,’ the soldier in question and the two soldiers flanking him are clearly Israelis, as evidenced by the ‘IDF’ stamped visibly on their shirts.”

“The editors of the new study also err in attributing two things to lessons from the Six-Day War: the faulty prevailing conception among Israeli Military Intelligence ‘that Israel would have at least 48 hours’ warning before an invasion’ and that Sadat wouldn’t start a war before acquiring fighter planes. Furthermore, it seems they also confused war analyst Maj. Gen. (ret.) Chaim Herzog with one of his sons, Brig. Gen. (ret.) Mike Herzog,” he added.

If these discrepancies are cause for embarrassment, then it is the kind of embarrassment that should be willingly endured. To put it another way, exposing such work to external review and criticism is an unsurpassed way of identifying and correcting errors.

In the absence of an official public account of post-9/11 U.S. counterterrorism programs, Americans (and others) must rely on unofficial accounts.

“Globalizing Torture” is a new report from the Open Society Justice Initiative, authored by Amrit Singh.  It is said to provide “the most comprehensive account yet assembled of the human rights abuses associated with CIA secret detention and extraordinary rendition operations. It details for the first time what was done to the 136 known victims, and lists the 54 foreign governments that participated in these operations. It shows that responsibility for the abuses lies not only with the United States but with dozens of foreign governments that were complicit.”

It was reported in “Report Says 54 Countries Helped CIA After 9/11” by Scott Shane, New York Times, February 4.

The use of information-related tools to support military operations and to help shape their outcome is discussed in a newly updated Army manual on what are now called “Inform and Influence Activities.”

Inform and influence activities (or IIA) refers to “the integration of designated information-related capabilities in order to synchronize themes, messages, and actions with operations to inform United States and global audiences, influence foreign audiences, and affect adversary and enemy decisionmaking.”

In some circumstances, the manual says, information operations can play a decisive role.

“Activities occurring in, through, or by means of the information environment have a consequential effect on an operational environment and can impact military operations and outcomes. Therefore, commanders and their staffs must understand their operational environments completely. This understanding includes the information environment and the potential impacts it can have on current and planned military operations.”

But the effectiveness of such activities is naturally limited by the realities of the military engagement.

“Soldiers’ actions powerfully influence the credibility of IIA. Visible actions coordinated with carefully chosen, credible words influence audiences more than uncoordinated or contradictory actions and words. All audiences–local and regional as well as adversary and enemy–compare the friendly force’s message with its actions. Consistency contributes to the success of friendly operations by building trust and credibility. Conversely, if actions and messages are inconsistent, friendly forces lose credibility. Loss of credibility makes land forces vulnerable to enemy and adversary information or countermessaging and places Army forces at a disadvantage.”

“Aligning information-related capabilities with the overall operation ensures that messages are consistent with the forces’ actions to amplify the credibility of those messages. It is paramount that inform and influence efforts complement not contradict. Failing to do so jeopardizes credibility.”

The updated Army manual replaces a 2003 document titled “Information Operations.”

“The publication does not address every information-related capability commanders can use to help shape their complex operational environments. It should, however, generate introspection and provide just enough guidance to facilitate flexibility and innovative approaches for commanders to execute the art of command to inform and influence.”

See Inform and Influence Activities, U.S. Army Field Manual 3-13, January 2013.

 

The development of unmanned aerial systems (or drones) for military and civilian applications appears to be accelerating faster than the normal policy process can adapt to it.  Aside from festering doubts about the legality, propriety and wisdom of their routine use in targeted killing operations, drone programs are beset by budgetary confusion, and a host of privacy and other legal problems are poised to emerge with the expanded use of drones in domestic airspace.

Already there is a bewildering multiplicity of drone development programs, said Sen. Tom Coburn (R-OK) on the Senate floor yesterday.

“There is no question in terms of our warfighting and our intelligence services that our unmanned capability has been a tremendous asset to us,” Sen. Coburn said. “But somebody needs to ask the question, Why do we have 15 different sets of programs run from 5 different agencies costing us $37 billion over 5 years? Where is the explanation for that? Where is the idea that we might concentrate expertise in one or two areas or three areas or four? But to have 15 separate programs means we are wasting money and getting less out of the research and less out of the dollars we invested than if we were to streamline those programs and limit them to targeted objectives. But we refuse to do that.”

Meanwhile, “Perhaps the most contentious issue concerning the introduction of drones into U.S. airspace is the threat that this technology will be used to spy on American citizens,” said a new report from the Congressional Research Service.

“With the ability to house high-powered cameras, infrared sensors, facial recognition technology, and license plate readers, some argue that drones present a substantial privacy risk. Undoubtedly, the government’s use of drones for domestic surveillance operations implicates the Fourth Amendment and other applicable laws.”

“Additionally,” CRS said, “there are a host of related legal issues that may arise with this introduction of drones in U.S. skies. These include whether a property owner may protect his property from a trespassing drone; how stalking, harassment, and other criminal laws should be applied to acts committed with the use of drones; and to what extent federal aviation law could preempt future state law.”

A copy of the CRS report was obtained by Secrecy News.  See Integration of Drones into Domestic Airspace: Selected Legal Issues, January 30, 2013.

See also Unmanned Aircraft Systems (UAS): Manufacturing Trends, January 30, 2013.

Additional resources on drone policy issues are available from the Electronic Privacy Information Center here.

“Integrating intelligence will continue to be the organizing principle for the future,” according to the FY2013 Congressional Budget Justification Book for the Office of the Director of National Intelligence.  “The takedown of Usama Bin Ladin provided a prime example of what can be accomplished when the IC [intelligence community] works together toward a single goal, but every day the benefits of integration are visible throughout the IC.”

Unclassified portions of the FY 2013 ODNI budget book, which was submitted to Congress in February 2012, were released by ODNI last week under the Freedom of Information Act.

While most programmatic information and almost all quantitative data were withheld, the redacted document still contains a few points of interest.  For example:

“While we can never eliminate all risk of unauthorized release of classified information,” it states, “structural reforms have been implemented to improve technical security capabilities and information access policies” (p. 2).

ODNI support to the Nuclear Command and Control System is noted (p. 83), as is its support to continuity of government activities (p. 84).

This year the IC Inspector General expects to “develop an IC-wide Whistleblower Protection process and program as required under the National Security Act” (pp. 99-100).

ODNI will “develop and implement an enterprise approach to foreign intelligence liaison relationships” (p. 109) and will “continue to leverage trade associations, key industry partners, NGOs, and academic institutions to improve lines of communication to the IC” (p. 110).

In addition to the FY 2013 document, ODNI also released heavily redacted versions of its budget justification books for FY 2011 and FY 2012.

In his capacity as Security Executive Agent, the DNI is preparing a policy to govern the use of polygraph testing throughout the intelligence community. Judging from an October 2012 draft obtained by Marisa Taylor of McClatchy Newspapers, the new policy consolidates existing practices more than it charts a new course.  See “After criticism, Obama officials quietly craft new polygraph policy,” January 24.

As Security Executive Agent, the DNI is also now responsible for classified information non-disclosure agreements, foreign travel reporting requirements, and other security clearance-related matters.  Last week, ODNI invited public comment on the contents of Standard Form 714, the Financial Disclosure Report which government employees and contractors must submit as a condition of access to certain types of classified information.

Updated below

Former CIA officer John Kiriakou was sentenced today to 30 months in prison for a violation of the Intelligence Identities Protection Act after he pleaded guilty to one count of identifying a covert agent.

Although the sentence is less than that prescribed by federal sentencing guidelines, the government said that it considers the reduced penalty “reasonable.”

In a presentencing memorandum for the defense, Mr. Kiriakou’s attorneys said that his offense should be seen in the context of his lifelong commitment “to public service and the defense of America’s national security.”

“In the course of his service to the United States and the Central Intelligence Agency, Mr. Kiriakou placed himself in harm’s way on countless occasions, earning the CIA’s Exceptional Service Award no fewer than ten times,” the defense memorandum said.

Although Mr. Kiriakou accepted full responsibility for his actions, the defense said that he had been duped into making the unauthorized disclosure that led to his prosecution.

“In 2006, Journalist A told Mr. Kiriakou that he was working on a book about the Abu Omar rendition in Milan. That was false. Journalist A has never published a book on that subject and the defense is aware of no evidence that he was ever working on one.” [But see update below].

“In reality, unknown to Mr. Kiriakou, Journalist A was acting as a private investigator on behalf of lawyers representing terrorist detainees in Guantanamo Bay, Cuba, and was forwarding the information he received from Mr. Kiriakou, as well as information he received from many other individuals, to another private investigator working with the detainees’ lawyers. Mr. Kiriakou now realizes that he made a very serious mistake in passing any information to Journalist A, but he would not have done so had he known how Journalist A would make use of that information,” the defense memorandum said.

The defense noted that “Mr. Kiriakou has fully and forthrightly accepted responsibility for his actions and recognizes the seriousness of the crime to which he has pled guilty.  Yet while many will never know Mr. Kiriakou apart from this prosecution, the incident that led to this moment cannot undo the reality of Mr. Kiriakou’s life in full– a life dedicated to the values of freedom, decency, public service, and love of country.  As the government concedes, although Mr. Kiriakou’s crime was unquestionably serious, he was never motivated by any desire to harm the United States, national security, the CIA’s critical mission abroad, or any individual person.”

A petition asking President Obama to pardon Mr. Kiriakou or commute his sentence has already been signed by thousands of supporters.

After Vice Presidential aide Scooter Libby was convicted of perjury in connection with the unauthorized disclosure of the identity of CIA officer Valerie Plame in 2007 and sentenced to 30 months in jail, his sentence was promptly commuted by President George W. Bush.

Update: Although the Kiriakou defense team said it knew of no evidence that Journalist A was working on a book about rendition, Josh Gerstein noted that there is such evidence here and here.

When U.S. Army Lt. Col. Anthony Shaffer wrote a memoir of his service as an intelligence officer in Afghanistan called “Operation Dark Heart” in 2010, the Department of Defense intervened to block publication, asserting that the manuscript contained classified information.  An initial print run of the book was destroyed, and the work was republished with hundreds of passages redacted.  However, a limited number of uncensored review copies and early sales editions have remained in circulation.

Now the Pentagon has decided that many of the claimed redactions are no longer necessary, and may be disclosed in future editions of the book.

“The U.S. Government has completed its security review of the manuscript, including the 433 passages that were redacted from the Thomas Dunne Books/St. Martin’s Press edition of September 2010,” wrote Mark M. Langerman, Chief of the DoD Office of Security Review, in a January 18, 2013 letter.  “The Government determined that information contained in 198 of the redacted passages has been properly declassified in accordance with Executive Order 13526. The other redacted passages, however, were found to contain classified information” and may not be disclosed.

The current status of each of the original redactions was presented in a chart accompanying Mr. Langerman’s letter.  Those who purchased the censored book can now find out what is behind at least some of the blacked-out sections.

Thus, a formerly classified reference on page 2 to “[deleted], the hub for U.S. operations in country” is now acknowledged to refer to “Bagram Air Base.”

Interestingly, the government does not admit that it overclassified any of this information, or classified it unnecessarily. On the contrary, officials filed sworn declarations in May 2011 indicating that the information was properly classified.  But that was 20 months ago, and times change.

“It is not at all unusual that, as circumstances change, the classification status of information changes,” government attorneys wrote yesterday in a pending lawsuit brought by author Shaffer.  They insisted that the information had now been declassified, not that it was originally misclassified, and they denied any implication of bad faith.

Of equal or greater interest is what remains classified, even today.  The use of the word “Fort” to refer to “NSA headquarters at Fort Meade, Md” on page xvi and elsewhere in the book is still classified, perhaps because the role of signals intelligence in Mr. Shaffer’s account is suppressed.  So is the author’s adopted cover name, “Christopher Stryker.”  A side-by-side comparison of several pages from the book in censored and uncensored form is posted here.

The author, or readers of the book, may agree with the redactions or disagree with them, the government says, but that doesn’t matter! Their perspectives are simply irrelevant to the classification process.

“There is no need to establish procedures by which the plaintiff or his ‘experts’ may submit their opinions regarding the classified information because any declaration or submission disputing the substance of the Government’s classification experts’ proper determinations is due no weight,” the government attorneys wrote in yesterday’s filing.

“Courts have repeatedly, and necessarily, rejected the views of plaintiffs on the question of whether a particular disclosure may harm national security.”

“Instead, the only relevant information that the plaintiff can provide is citations to specific instances in which the Government has officially released the information at issue.” The views of outside experts (or “experts”) don’t count.

In other words, the classification process is a pure expression of executive branch authority. It is not an empirical process or a substantive matter that outsiders can meaningfully participate in or try to rebut.

But to the extent that it is beyond debate or challenge, one may say that the classification process has no intrinsic claim to respect from anyone who has not already signed a non-disclosure agreement.

 

The Office of the Director of National Intelligence has released a heavily redacted version of its Congressional Budget Justification Book for Fiscal Year 2009 in response to a request under the Freedom of Information Act.

Although most of the substance of the document has been withheld, a number of details of interest (to some) have been preserved.  So, for example, the glossary explains that “CAPNet is a secure private network permitting electronic connectivity between the Legislative Branch of the Federal Government, principally the intelligence oversight committees, and certain intelligence community personnel, primarily in the legislative liaison offices.”

Budget books for several subsequent years have also been released and will be posted in coming days.

Researchers at Sandia National Laboratories have been studying the ways that information, ideas and behaviors propagate through social networks in order to gain advance warning of cyber attacks or other threatening behavior.

The initial problem is how to explain the disparate consequences of seemingly similar triggering events.  Thus, in 2005, the Danish newspaper Jyllands-Posten published cartoons featuring the Muslim Prophet Muhammad, prompting widespread protests.  In 2006, by contrast, the Pope gave a lecture in which he made comments about Islam that were considered derogatory by some, but the ensuing controversy quickly faded away.

“While each event appeared at the outset to have the potential to trigger significant protests, the ‘Danish cartoons’ incident ultimately led to substantial Muslim mobilization, including massive protests and considerable violence, while outrage triggered by the pope lecture quickly subsided with essentially no violence,” wrote Sandia authors Richard Colbaugh and Kristin Glass.  “It would obviously be very useful to have the capability to distinguish these two types of reaction as early in the event lifecycle as possible.”

What accounts for the difference in these outcomes? The intrinsic qualities of the events are not sufficient to explain why one had disruptive consequences and the other did not. Rather, the authors say, one must factor in the mechanisms of influence by which individual responses are shaped and spread.

By way of analogy, it has been shown that “it is likely to be impossible to predict movie revenues, even very roughly, based on the intrinsic information available concerning the movie” such as cast or genre, but that “it *is* possible to identify early indicators of movie success, such as temporal patterns in pre-release ‘buzz’, and to use these indicators to accurately predict ultimate box office revenues.”

The Sandia authors developed a methodology that reflects the “topological properties” of social and information networks — including the density and hierarchy of connections among network members — and modeled the dynamics of “social diffusion events” in which individuals exercise influence on one another.

They report that their model lends itself, among other things, to “distinguishing successful mobilization and protest events, that is, mobilizations that become large and self-sustaining, from unsuccessful ones early in their lifecycle.”

They tested the model to predict the spread of textual memes, to distinguish between events that generated significant protest (a May 2005 Quran desecration) and those that did not (the knighting of Salman Rushdie in 2007), and to provide early warning of cyber attacks.

The authors’ research was sponsored by the Department of Defense and the Department of Homeland Security, among others.  See Early warning analysis for social diffusion events by Richard Colbaugh and Kristin Glass, originally published in Security Informatics, Vol. 1, 2012, SAND 2010-5334C.

There is a “large inventory” of classified nuclear weapons components “scattered across” the nation’s nuclear weapons complex and awaiting disposal, according to an internal Department of Energy contractor report last year.

But “there is no complex-wide cost-effective classified weapon disposition strategy.” And as a result, “Only a small portion of the inventory has been dispositioned and it has not always been in a cost-effective manner.”

See Acceptance of Classified Excess Components for Disposal at Area 5, presented at the Spring 2012 Waste Generator Workshop, April 24, 2012.

The existence of multiple, overlapping and inconsistent definitions of the term “homeland security” reflects and reinforces confusion in the homeland security mission, according to a newly updated report from the Congressional Research Service.

“Ten years after the September 11, 2001, terrorist attacks, the U.S. government does not have a single definition for ‘homeland security.’ [Instead,] different strategic documents and mission statements offer varying missions that are derived from different homeland security definitions.”

Most official definitions of homeland security include terrorism prevention.  Many but not all encompass disaster response. Most do not include border security, or maritime security, or immigration matters, or general resilience, though some do.

“An absence of consensus about the inclusion of these policy areas may result in unintended consequences for national homeland security operations,” the CRS report said. “For example, not including maritime security in the homeland security definition may result in policymakers, Congress, and stakeholders not adequately addressing maritime homeland security threats, or more specifically being able to prioritize federal investments in border versus intelligence activities.”

“The competing and varied definitions in these documents may indicate that there is no succinct homeland security concept. Without a succinct homeland security concept, policymakers and entities with homeland security responsibilities may not successfully coordinate or focus on the highest prioritized or most necessary activities.”

“At the national level, there does not appear to be an attempt to align definitions and missions among disparate federal entities,” CRS said.

Without a uniform definition, a coherent strategy cannot be formulated and homeland security policy is rudderless.  “Potentially, funding is driving priorities rather than priorities driving the funding.”

Speaking of funding, there are thirty federal departments, agencies, and entities receiving annual homeland security funding excluding the Department of Homeland Security, the CRS report said.  In fact, approximately 50% of homeland security funding is appropriated for agencies other than the Department of Homeland Security.

See Defining Homeland Security: Analysis and Congressional Considerations, January 8, 2013.