New and updated reports from the Congressional Research Service that have not been made available to the public include the following.

Desalination and Membrane Technologies: Federal Research and Adoption Issues, January 8, 2013

The Corporation for Public Broadcasting: Federal Funding and Issues, January 8, 2013

DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues, December 6, 2012

Environmental Considerations in Federal Procurement: An Overview of the Legal Authorities and Their Implementation, January 7, 2013

Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures, January 4, 2013

Social Security: The Windfall Elimination Provision (WEP), January 8, 2013

Social Security: The Government Pension Offset (GPO), January 8, 2013

Economic Growth and the Unemployment Rate, January 7, 2013

Overview and Issues for Implementation of the Federal Cloud Computing Initiative: Implications for Federal Information Technology Reform Management, January 4, 2013

The National Telecommunications and Information Administration (NTIA): Issues for the 113th Congress, January 3, 2013

Military Medical Care: Questions and Answers, January 7, 2013

Israel: 2013 Elections Preview, January 8, 2013

The Foreign Intelligence Surveillance Court (FISC), which authorizes intelligence surveillance activities, acknowledged in 2007 that it has issued “legally significant decisions that remain classified and have not been released to the public.”

In 2010, the Office of the Director of National Intelligence and the Department of Justice undertook to declassify those Court rulings, but since then none has been released. Why not?

“We tried,” a senior intelligence agency official said, but the rulings were hard to declassify. After redacting classified operational information and other sensitive details, no intelligible text of any consequence remained, according to this official.

The Department of Justice made a similar assertion years ago in response to a lawsuit brought by the ACLU, stating that “Any legal discussion that may be contained in these materials would be inextricably intertwined with the operational details of the authorized surveillance.”

Although the 2010 declassification initiative has not been formally cancelled, it is unclear how or why the failure to date to declassify the FISC orders would change.

In the debate over reauthorization of the FISA Amendments Act, Sen. Jeff Merkley offered an amendment that was intended to break the current impasse.  If a surveillance court order could not be declassified, the amendment proposed, then an unclassified summary of the order should be prepared.  (If even that were not possible, the amendment would have required a report on the status of the declassification process.)

The Merkley amendment, like others, was rejected by the full Senate.  But Senator Dianne Feinstein, the Intelligence Committee chair, offered her assistance to Sen. Merkley in advancing public access to FIS Court opinions.

“If the opinion cannot be made public, hopefully a summary of the opinion can,” Sen. Feinstein said on December 27. “And I have agreed with Senator Merkley to work together on this issue.”

But the intelligence agency official said that unclassified summaries of surveillance court decisions were probably not a satisfactory alternative.  A summary written by the Department of Justice would not be a statement of the court’s opinion at all, the official said.  At best, it would represent the Administration’s own understanding of what the court had ruled, paraphrased for public release.

What if the Court itself were to prepare its opinions in a “tearline” format, with a general statement of its findings presented separately from the more highly classified specifics of the case under discussion?  Would that not facilitate declassification and release of the court rulings?

“That might work,” the official said.  However, he said, it would be “awkward” for agencies to presume to tell the court how to format its opinions.

But it would not be awkward for members of Congress to make such a request, perhaps in a forthcoming letter referenced by Sen. Feinstein.

“I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions,” she said. “If the letter does not work, we will do another intelligence authorization bill next year, and we can discuss what can be added to that bill on this issue.”

In the past, a handful of FISA Court opinions have been declassified and made public, including a FISC opinion dated May 17, 2002, a FIS Court of Review (FISCR) opinion dated November 18, 2002, and a FISCR opinion dated August 22, 2008.

The Director of National Intelligence issued a directive last month prescribing procedures for major system acquisitions by elements of the intelligence community.

The directive defines a multi-phase process for identifying critical needs, evaluating alternative paths to meet those needs, and so forth.

See Intelligence Community Directive 115, “Intelligence Community Capability Requirements Process,” December 21, 2012.

Updated below

Iran’s Ministry of Intelligence and Security is believed to employ more than 30,000 intelligence officers and support personnel, making it “one of the largest and most active intelligence agencies in the Middle East,” according to a new report from the Federal Research Division of the Library of Congress.

“The Ministry of Intelligence and Security (MOIS) uses all means at its disposal to protect the Islamic Revolution of Iran, utilizing such methods as infiltrating internal opposition groups, monitoring domestic threats and expatriate dissent, arresting alleged spies and dissidents, exposing conspiracies deemed threatening, and maintaining liaison with other foreign intelligence agencies as well as with organizations that protect the Islamic Republic’s interests around the world,” the report states.

See “Iran’s Ministry of Intelligence and Security: A Profile,” December 2012.

The report was first obtained and reported by Bill Gertz in “Iran Spy Network 30,000 Strong,” Washington Free Beacon, January 3, 2013.

The new report provides an informative account of the Ministry’s history, organizational structure, and recruitment practices, as far as these can be discerned from published sources.

“The information in this report was collected mainly from Farsi and English journals, online news Web sites, and Iranian blogs,” the Preface states.  (Some older information from the FAS web site is cited at a couple of points.)

“Needless to say, the Ministry of Intelligence and Security does not publish information about its activities on Iranian Web sites. Consequently, in the absence of official government information, this report occasionally relies on social media, in particular blogs, as a source of information more than might ordinarily be warranted. The reliability of blog-based information may be questionable at times, but it seems prudent to evaluate and present it in the absence of alternatives.”

“Every minister of intelligence must hold a degree in ijtihad (the ability to interpret Islamic sources such as the Quran and the words of the Prophet and imams) from a religious school, abstain from membership in any political party or group, have a reputation for personal integrity, and possess a strong political and management background,” the report says.

A newly disclosed U.S. Army intelligence document explains how to determine whether weapons that were captured in Iraq were manufactured in Iran.

Iranian weapons systems “have several distinctive visual identification markings that identify their source” which are described in the Army publication.  The document was partially declassified last month and was obtained under the Freedom of Information Act by Matthew Schroeder of the FAS Arms Sales Monitoring Project.

See “Identifying Small Arms and RPGs Produced in Iran,” U.S. Army National Ground Intelligence Center, 2004.

Update (1/15/13): The assertion in the Library of Congress report that Iran’s Ministry of Intelligence and Security employs on the order of 30,000 personnel could not be independently corroborated, and the LOC/FRD report has been harshly criticized by some area experts. See How a Government Report Spread a Questionable Claim About Iran by Justin Elliott, ProPublica, January 14, 2013.

The move by Congress to renew the FISA Amendments Act for five more years without amendments came as a bitter disappointment to civil libertarians who believe that the Act emphasizes government surveillance authority at the expense of constitutional protections.  Amendments that were offered to provide more public information about the impacts of government surveillance on the privacy of American communications were rejected by the Senate on December 27 and 28.

Beyond the specifics of the surveillance law, the congressional action appears to reflect a reorientation of intelligence oversight away from public accountability.  The congressional intelligence committees once presented themselves as champions of disclosure. They no longer do so.

The first annual report of the Senate Select Committee on Intelligence, chaired by the late Sen. Daniel K. Inouye, stated in 1977 that “While most of the work of the Committee is, of necessity, conducted in secrecy, we believe that even secret activities must be as accountable to the public as possible.”

Of course, the question of how much accountability is “possible” has always been debatable.  But the basic principle of maximum possible disclosure was endorsed by subsequent Committee leaders including Sen. Barry Goldwater and Sen. Daniel P. Moynihan, who also wrote in 1981 that “intelligence activities should be as accountable as possible to the public.” In 1999, Senators Richard Shelby and Bob Kerrey affirmed on behalf of the Intelligence Committee that “as much information as possible about intelligence activities should be made available to the public.”

But in recent years the Committee’s periodic statement of principles has changed in a subtle but significant way.  In its most recent report in 2011, the Committee said it seeks “to provide as much information as possible about its intelligence oversight activities to the American public consistent with national security concerns.” Instead of disclosure and public accountability for intelligence activities, the Committee would promise only to reveal as much as possible about its oversight activities.

What makes this rhetorical shift noteworthy is that it seems to correspond in broad strokes to a shift in the character and activity of the Committee away from public accountability for intelligence.  Past Committees did not always press for public accountability (and were not often successful when they did), and the current Committee has not been completely indifferent to it, but there does seem to be a perceptible trend.

The Senate Intelligence Committee used to be at the forefront of debates over public disclosure of intelligence.  Demands for declassification — often for intelligence budget information — were a normal feature of annual intelligence legislation in the 1990s. Public hearings, including hearings with non-governmental witnesses, were commonplace.  To varying degrees, Senators like Daniel Moynihan, Howard Metzenbaum, Arlen Specter, Bob Kerrey, and others were thorns in the side of U.S. intelligence agencies in support of public disclosure.

Over the past decade, however, the Committee’s priorities appear to have changed, to the detriment of public accountability.  In fact, despite the Committee’s assurance in its annual reports, public disclosure even of the Committee’s own oversight activities has decreased.

In 2012, the Committee held only one public hearing, despite the prevalence of intelligence-related public controversies.  That is the smallest number of public hearings the Committee has held in at least 25 years and possibly ever.  A non-governmental witness has not been invited to testify at an open Committee hearing since 2007.

(A congressional official countered that in recent years confirmation hearings had provided the occasion for most public hearings by the Intelligence Committee, and that in 2012 there were simply no nominees requiring hearings.  Meanwhile, the official noted, the Committee did include a provision to reauthorize the Public Interest Declassification Board in its markup of the 2013 intelligence bill.  And the Committee is engaged with agency Inspectors General that are reviewing classification practices in the intelligence community and elsewhere.  The Committee’s own web site has also been usefully supplemented with hearing records and reports dating back to the 1970s.)

When annual disclosure of the intelligence budget total did finally become a routine occurrence in 2007, it was principally through the legislative efforts of Senators Joe Lieberman and Susan Collins of the Senate Homeland Security Committee, not the Intelligence Committee.  Similarly, efforts to strengthen oversight of intelligence by the Government Accountability Office were led by Senator Daniel Akaka, again from outside the Intelligence Committee.

(The Intelligence Committee did, however, legislate a requirement in 2010 for disclosure of the budget request for the National Intelligence Program.  And it was cautiously supportive of an expanded role for GAO in intelligence oversight.)

Most recently, the Intelligence Committee conducted a multi-year investigation of the CIA’s post-9/11 detention and interrogation program.  It is, said Senator Dianne Feinstein, the Intelligence Committee chair, “by far the most important oversight activity ever conducted by this committee.”  But the resulting report “will remain classified and is not being released in whole or in part at this time,” she said December 13.  Its importance is evidently independent of any public impact it might have.

(A congressional official said there is an intent to make portions of the report public over the coming months.)

Even in view of the contrary indications (noted above), and some others, the dominant trend as we perceive it is that public accountability in intelligence has been deemphasized.

Senator Feinstein made the point another way, when she said of the Committee that “We are the public.”

“I mean, we are the public check on the Executive Branch,” Sen. Feinstein said during the FISA reauthorization debate on December 27, explaining why she believed greater disclosure of information concerning government surveillance activities was unnecessary. “We are not of the intelligence community. We are the public, and it is our oversight, it is our due diligence to go in and read the classified material.”

Intelligence Committee Vice Chair Sen. Saxby Chambliss also said that the Committees themselves provided public oversight by serving as proxies for the public:  “In matters concerning the FISA Court, the congressional Intelligence and Judiciary Committees serve as the eyes and ears of the American people. Through this oversight, which includes being given all significant decisions, orders, and opinions of the court, we can ensure that the laws are being applied and implemented as Congress intended.”

By these lights, public accountability is more or less superfluous.  Senator Chambliss said that a report on the privacy impact of government surveillance advocated by Sen. Ron Wyden was unnecessary, because “If we do our job, there is absolutely no reason for this amendment–and we do our job.”

Members of the House Judiciary Committee last month expressed their own confidence in non-public intelligence oversight.  They rejected a resolution introduced by Rep. Dennis Kucinich to require the Attorney General to produce legal justifications for the use of drones “relating to the practice of targeted killing of United States citizens and targets abroad,” a subject of recurring public controversy.

In a December 18 report, the Committee said the Kucinich resolution was unwarranted because “the House and Senate Intelligence Committees continue to conduct robust oversight into the drone program that targets terrorists and their associates.”  Public controversy is beside the point.

How should one understand the apparent diminished interest in public accountability?  It is hard to say.  There is a strain of political commentary that characteristically invokes official bad faith as the sovereign explanation for all disfavored policy outcomes:  Officials act the way they do — instead of the way I wanted them to — because they are power-hungry or compromised by financial interest, social affiliation, or personal ambition.  This is usually a lazy and self-serving explanation (if my opponents are scoundrels, I must be okay) even if it is not always and altogether wrong.

Another possibility is that intelligence collection is much more fragile than is generally recognized.  Even if that were true, however, it would not explain the broader trends — the declining number of public hearings on intelligence, the diminished focus on declassification, the abandoned (or muted) commitment to disclosure of “as much information as possible about intelligence activities.”

Nor does it fully explain the Senate’s categorical rejection last month of all of the proposed amendments to the FISA Amendments Act, which were about as undemanding as they could be. (The intelligence community said that one amendment to require preparation of an estimate of the number of American communications collected was not feasible or would entail privacy violations of its own). Most of the amendments would not have imposed any change in policy or any compulsory disclosure, but only certain reporting obligations, and even those had waivers for national security concerns.  As far as oversight and accountability are concerned, these proposals were practically de minimis, of homeopathic proportions, and yet they were rejected by the Senate.

(Although Sen. Jeff Merkley’s amendment to promote declassification of opinions of the Foreign Intelligence Surveillance Court was among the rejected proposals, Sen. Feinstein said that she would work together with Sen. Merkley to help achieve that end.)

“What it comes down to is what we define robust congressional oversight in a program such as this to be,” said Sen. Ron Wyden of his amendment to the FISA Amendments Act, which was voted down on December 28.

“Plain and simple–we need more information,” said Sen. Mark Udall. “How else can we evaluate this policy? The American public has a right to know. And needs to know. How many Americans are affected by FISA? Are existing privacy protections working? Are they too weak? Do they need to be strengthened? These are vital questions. They need to be answered. And so far they have not been.”

Now, for the foreseeable future, they will not be answered, at least not to anyone outside of the intelligence committees.

Two Updates/Corrections below

The Senate passed the FY2013 intelligence authorization act on December 28 after most of the controversial provisions intended to combat leaks had been removed.

Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee, said the bill was revised in order to expedite its passage.

“Since the bill was reported out,” she said, “the Committee has received thoughtful comments from our colleagues, media organizations, and from organizations that advocate for greater governmental transparency. As a result of these comments, and technical suggestions received from the Executive Branch, we have decided to remove ten of the twelve sections in the title of the original bill that addressed unauthorized disclosures of classified information so that we might ensure enactment this year of the important other provisions of the bill.”

More precisely, the revision of the bill could be attributed to the intervention of Sen. Ron Wyden, who all but single-handedly blocked its enactment after it was approved in Committee last July by a vote of 14-1, with only Wyden dissenting.  Its passage by the full Congress seemed to be assured, but in November, Sen. Wyden placed a hold on the bill to prevent its adoption by unanimous consent.

The provisions that were removed from the final bill included restrictions on background briefings for the press, limits on media commentary by former government officials, and authority for the DNI to unilaterally revoke the pension of a suspected leaker. (“Anti-Leak Measures in Senate Bill Target Press, Public,” Secrecy News, July 31, 2012).

Sen. Wyden opposed most of the anti-leak measures, he explained on December 21, “because, in my view, they would have harmed first amendment rights, led to less informed public debate about national security issues, and undermined the due process rights of intelligence agency employees, without actually enhancing national security.”

He supported the revised intelligence bill, which passed the Senate Friday on a voice vote.

One of the anti-leak provisions that did remain in the bill (sect. 504) will require government officials to notify Congress whenever classified intelligence is disclosed to the press in an authorized manner, other than through FOIA or other routine processes.  Thus, Congress must be advised whenever classified intelligence is declassified specifically for the purpose of disclosure to the media or — more remarkably — if it is disclosed to the press on an authorized basis while still classified.

This is an unprecedented legislative definition (or recognition) of a category of information that has no explicit basis in executive branch policy– namely, authorized disclosures of classified information to an uncleared member of the press or the public.  (“Can Disclosures of Classified Information Be Authorized?”, Secrecy News, December 19, 2012).  While disclosures of classified information to the press obviously occur, the official authorization for such disclosures, if it exists at all, has always remained tacit.  (There is an exception for life-threatening emergencies, in which classified information may be disclosed to first-responders and the like.)

The new provision notably applies to all “government officials,” including White House officials.  It may oblige the Administration either to abstain from authorized disclosures of classified intelligence to the press, or to revise its policies to more clearly permit such disclosures, or to somehow evade the new reporting requirement, perhaps by defining it away.  Thus, for example, Vice President Dick Cheney stated in 2004 that classified information could be used “to shape and inform what one says publicly” without violating prohibitions on disclosure of classified information.

In any case, it will be interesting to see whether the executive branch notifies Congress of even a single such authorized disclosure to the media of classified intelligence over the coming year, after which the provision will sunset (or expire).

“Unfortunately,” said Sen. Feinstein, “I am certain that damaging leaks of classified information will continue, and so the Committee will need to continue to look for acceptable ways to address this problem.”

The revised intelligence bill also backs off from a move to repeal the requirement for an annual report on security clearances.  The most recent such annual report provided significant new transparency and insight into the security clearance system, including the unexpectedly large number of cleared persons.  (“Security-Cleared Population Tops 4.8 Million,” Secrecy News, July 23, 2012).

The Director of National Intelligence had asked Congress to eliminate this reporting requirement, and the Committee markup of the bill initially complied in July.  But in response to concerns expressed by public interest groups, the final legislation did not include the repeal of the security clearance reporting requirement.

“I believe we have addressed all of the concerns that have been brought to our attention by our colleagues and the public,” said Sen. Feinstein.

Update / Correction: The development of the Senate legislation involved more nuance and complexity than was expressed above. In particular, while Senator Wyden was the most outspoken congressional critic of the bill, it is not accurate to say that he “all but single-handedly blocked its enactment” or that passage of the bill by the full Congress was ever “assured.” In fact, Senator Wyden initially supported 11 of the 12 anti-leak provisions at the Committee markup, opposing only the provision on pension revocation. Meanwhile, opposition to the anti-leak measures emerged inside and outside of Congress, notably including the Office of the Director of National Intelligence, as well as press and public interest organizations. Although some of this opposition was not publicly visible, it ultimately proved influential and should not be overlooked.

Update / Correction 2: The previous correction was itself in error when it stated that Senator Wyden supported 11 of the 12 anti-leak provisions. While he specifically expressed opposition to the pension revocation provision at the Committee markup, he did not indicate support for the other measures. He did provide the only ‘no’ vote in Committee against the entire bill. And he was the only Senator to place a hold on the bill, at which time he explained his opposition to several of the bill’s anti-leak proposals.

Yesterday former Navy contract linguist James Hitselberger, who has been charged under the Espionage Act with mishandling classified records, was ordered released under supervision while awaiting trial.

Mr. Hitselberger is a multi-lingual translator and collector of rare documents, including records that are now housed in a dedicated collection at the Hoover Institution at Stanford University.  Unfortunately for him, the government says that his collection activity extends to some documents that are currently classified.  (Document Collector Charged Under Espionage Statute, Secrecy News, November 7, 2012).

Prosecutors had opposed his pre-trial release, arguing that he had fled from law enforcement by traveling for months through Europe, and that he posed a flight risk.  But Mr. Hitselberger’s public defender argued effectively that could not have “fled” since he had not been charged with anything until recently, that he had traveled openly under his own name, that he remained in contact with his former employer, and that he voluntarily returned to a U.S. Army facility in Kuwait to recover his possessions.

“As far as he knew, Mr. Hitselberger was free to travel–which he did,” Judge Rudolph Contreras summarized in a memorandum opinion issued today. “And as he traveled, he kept in regular contact with many people through many means, openly used his United States passport, and was willing to go to a military base, which no reasonable fugitive would be likely to do.”

Therefore Judge Contreras ruled for the defense and granted his release, albeit under “high intensity supervision” and with “Global Positioning System monitoring” of his whereabouts. Moreover, “he is expressly prohibited… from entering or being in the immediate vicinity of Union Station, any other bus or train station that provides service outside of the Washington metropolitan area, or any airport….” (See related coverage in Politico.)

Mr. Hitselberger has no record of criminal activity, no predisposition to violent behavior, and even prosecutors admit that he was not engaged in espionage on behalf of a foreign power.  There is also no indication that even the mildest adverse consequence arose from his alleged conduct.  And yet the government has opted to charge him with two felony counts under the Espionage Act, which seems like an extraordinary overreaction given the circumstances.

In a different policy environment, loss of job and loss of clearance — which Mr. Hitselberger has already suffered — would have been deemed a fully satisfactory response to an offense of this type and magnitude.

Thus, speaking at his 1997 CIA confirmation hearing about his response to leaks (at p. 108), George Tenet said “I don’t want to prosecute anybody; I want to fire somebody. That will send the right signal to people.”

But today, the Obama Justice Department seems unwilling to accept anything short of the maximum available punishment for unauthorized disclosures, at least for those who are not senior officials or acting under color of authority.

It’s not only the Administration, however.  This week the House and Senate adopted a sense of Congress resolution urging the Department of Justice to “investigate possible violations of Federal law related to unauthorized disclosures of classified information,” adding that “in appropriate cases, individuals responsible for such unauthorized disclosures should be prosecuted to the full extent of the law.”

Further anti-leak legislation is under imminent consideration in the Senate.

Meanwhile, the White House yesterday issued a new National Strategy for Information Sharing and Safeguarding.

“To foster trust and safeguard our information, policies and coordinating bodies must focus on identifying, preventing, and mitigating insider threats and external intrusions, while departments and agencies work to enhance capabilities for data-level controls, automated monitoring, and cross-classification solutions,” the Strategy states.

Certain nuclear weapons-related information that has been removed from the category of Restricted Data (RD) and designated as Formerly Restricted Data (FRD) can now be restored to the RD category, under a provision approved by Congress in the FY 2013 national defense authorization act.

Until now, the removal of information from the Restricted Data category was irreversible, being prohibited by the Atomic Energy Act.  That prohibition is nullified by the new legislation.

The authority to reclassify FRD as RD was requested by the Department of Energy last year.

“There is sensitive nuclear weapons design information embodied in some FRD… that should be subject to the more stringent security protections afforded RD now than current programmatic capabilities of DoD and the Intelligence Community permit,” wrote Energy Secretary Steven Chu in an August 4, 2011 letter.  (Dept of Energy Wants to Reclassify Some Info as ‘Restricted Data’, Secrecy News, January 17, 2012.)

From an outside point of view, the reclassification of any such information will be undetectable and should not entail an increase in government secrecy.  RD and FRD are equally opaque to the general public.

In fact, the move could potentially have positive repercussions.  By removing the most sensitive information from the FRD category, it should become more feasible to treat the remaining FRD as “ordinary” classified information and to declassify it in an orderly fashion– something which does not happen currently.

Improving declassification procedures for FRD was among the recommendations presented to the White House earlier this month by the Public Interest Declassification Board.

“FRD information concerns the military utilization of nuclear weapons, including storage locations and stockpile information and often dates from the end of World War II through the height of the Cold War,” the PIDB explained in its report. “Although often no longer sensitive or current, this type of FRD information is of high interest to researchers yet remains largely unavailable to the public, because there is no process for systematically reviewing it for declassification and release under the terms of the Executive Order for national security information.”

Therefore, the PIDB recommended, “The classification status of Formerly Restricted Data (FRD) information should be re-examined. A process should be implemented for the systematic declassification review of historical FRD information.”

In a 2010 statement to the PIDB, the Federation of American Scientists suggested that the FRD category be eliminated altogether, arguing that it has become obsolete and unnecessary.  But such a step was further than the PIDB was prepared to go.

The Senate voted last week to reauthorize the Public Interest Declassification Board until 2014, and the House followed suit yesterday by a vote of 409-1.  Rep. Don Young of Alaska voted against the measure for reasons he did not explain.

It is plainly true that executive branch officials will sometimes disclose classified information to reporters and other uncleared individuals.  But this practice is not explicitly authorized in any official statement of classification policy.  In fact, with an exception for life-threatening emergencies, it is usually understood to be prohibited.

How can the obviously flexible practice and the seemingly prohibitive policy be reconciled? A newly updated report from the Congressional Research Service presents a close reading of the relevant rules and regulations in search of some wiggle room for authorized disclosures of classified information.

“Nothing in the Executive Order addresses an informal procedure for releasing classified information [to reporters].  E.O. 13526 section 1.1 provides that ‘[c]lassified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,’ but does not address what happens in the event of a disclosure that was in fact authorized,” the CRS report observes.

“By definition, classified information is designated as such based on whether its unauthorized disclosure can reasonably be expected to cause a certain level of damage to the national security. This may be read to suggest that disclosures may be authorized under such circumstances when no damage to national security is reasonably expected.”  (But under those circumstances, it might be noted, the information should be promptly declassified.)

The CRS report, written by legislative attorney Jennifer K. Elsea, continues:  “Nothing in the order provides explicit authority to release classified information that exists apart from the authority to declassify, but it is possible that such discretionary authority is recognized to release information outside the community of authorized holders without formally declassifying it.”  Indeed, this appears to be an accurate characterization of actual practice.

In any case, “there is little to stop agency heads and other high-ranking officials from releasing classified information to persons without a security clearance when it is seen as suiting government needs.”  Again, an accurate description– particularly since “the Attorney General has prosecutorial discretion to choose which leaks to prosecute.”

See The Protection of Classified Information: The Legal Framework, updated December 17, 2012.

Overall, “Executive Branch policy appears to treat an official disclosure as a declassifying event, while non-attributed disclosures [to reporters or others] have no effect on the classification status of the information,” the author writes.

“For example, the Department of Defense instructs agency officials, in the event that classified information appears in the media, to neither confirm nor deny the accuracy of the information.  The Under Secretary of Defense for Intelligence is then advised to ‘consult with the Assistant Secretary of Defense for Public Affairs and other officials having a primary interest in the information to determine if the information was officially released under proper authority.'”

But, the CRS report astutely notes, the relevant DoD regulation “does not clarify what happens in the event the disclosure turns out to have been properly authorized.”

And so it seems that the DoD regulation offers the conceptual space for an authorized disclosure of classified information.

(As if to provide an ironic illustration of the point, the Under Secretary of Defense for Intelligence himself — Michael Vickers — was reportedly cited in a referral to the Department of Justice for disclosing potentially restricted information concerning the pursuit of Osama bin Laden to filmmakers.  See “Bin Laden film leak was referred to Justice; leaker top Obama official” by Marisa Taylor and Jonathan S. Landay, McClatchy Newspapers, December 17, 2012.  In a statement last night, the Department of Defense confirmed that Mr. Vickers is a subject of a pending Inspector General investigation.  But it said the information in question was unclassified in its entirety.)

The CRS report naturally does not constitute an authoritative interpretation of the executive order, and in some respects it may be in error.  The report mistakenly states (at footnote 51) that the DOJ Media Leak Questionnaire that agencies must complete when a referring a leak for investigation is “apparently… part of a Memorandum of Understanding concluded between the Department of Justice and elements of the Intelligence Community.”  But a review of the Memorandum, described in Secrecy News earlier this week, shows that that supposition is incorrect.  The two are separate documents.  See “Crimes Reports and the Leak Referral Process,” Secrecy News, December 17, 2012.

Anti-leak legislation that is pending in the Senate would require executive branch officials to record all authorized disclosures of classified intelligence to the press, and to notify Congress when they occur (cf. sections 501 and 502 of Title V of the FY 2013 intelligence authorization bill).

These provisions, which may prove unworkable in practice, are presumably intended to enable Congress to publicly comment on classified intelligence matters with the same freedom that agency officials already do.  But the public interest concern raised by the notification provisions is that if they are strictly imposed, they may discourage all authorized disclosures of classified intelligence, yielding a net reduction in public access to government information.

Intelligence community officials have been meeting with representatives of the National Archives to discuss the anticipated declassification and release of intelligence imagery from the KH-9 satellite dating between 1971 and 1984.

Officials have been negotiating the transfer of the original negatives from the KH-9 system and the provision of finding aids, according to a newly released but heavily redacted report from the National Geospatial Intelligence Agency, dated June 2012.

Multiple releases of declassified imagery are planned over the coming year “with final delivery of imagery scheduled for September 2013.”  See “Intelligence Imagery Set to be Disclosed in 2013,” Secrecy News, October 22, 2012.

The latest report from the elite JASON science advisory panel is devoted to the subject of “compressive sensing.”  This term generally refers to the use of sensors for imaging (or other sensing) of an object in a manner that uses a limited subset of the available data in order to improve efficiency or conserve resources.

“Compressive sensing involves intentionally under-sampling an object or image, typically in a random manner, and then using a companion process known as sparse reconstruction to recover the complete object or image information…,” the JASON report says.

“Compressed sensing can conceivably lead to reductions in data link requirements, reductions in radar resources needed for radar image formation (thereby providing the radar more resources for its other functions such as target detection, target tracking, and fire control), increased angular resolution without commensurate increases in array costs, and increased fields of view without degradation in resolution…”

“Compressive sensing is not a ‘free lunch’,” the report cautions, “but always involves a tradeoff; reduced data may save measurement resources, but it also means a lower signal-to-noise ratio and possibly other artifacts, such as side lobes or false alarms.”

A copy of the new JASON report was obtained by Secrecy News.  See “Compressive Sensing for DoD Sensor Systems,” November 2012.

“Crimes reports” are official notifications that are sent by U.S. intelligence agencies to the Department of Justice when an unauthorized disclosure of classified information (or another potential federal crime) is believed to have occurred.  Crimes reporting is required by statute, by executive order, and by interagency agreement between the Attorney General and the heads of intelligence agencies.

“We file crimes reports every week,” said George J. Tenet in a discussion of leaks during his 1997 confirmation hearing to be Director of Central Intelligence.

“Say again?” said Sen. Robert Kerrey, who may have been unfamiliar with the term used by Mr. Tenet.

“We file crimes reports with the Attorney General every week about leaks, and we’re never successful in litigating one,” Mr. Tenet said.

In general, information or allegations concerning criminal activity by government employees should be reported to the Attorney General pursuant to 28 U.S.C. 535, “Investigation of crimes involving Government officers and employees.”

More particularly, Executive Order 12333 (section 1.6) on United States Intelligence Activities requires the heads of intelligence agencies to “report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned….”

The unusual term “crimes reports” derives from those procedures, which are set forth in a 1995 Memorandum of Understanding (MOU): Reporting of Information Concerning Federal Crimes, signed by Attorney General Janet Reno and the heads of six other agencies.

Though it is rarely cited in public discussions of leak policy, this MOU provides the structural framework for intelligence community reporting to the Justice Department regarding leaks of classified information, among other potential crimes.

“This Agreement requires each employee of the Agency to report to the General Counsel or IG facts or circumstances that reasonably indicate to the employee than an employee of an intelligence agency has committed, is committing, or will commit a violation of federal criminal law.”  Then, “If a preliminary inquiry reveals that there is a reasonable belief for the allegations, the General Counsel will follow the reporting requirements” for submission of “crimes reports.”

Intelligence agency employees are also required to report to the General Counsel of their agency information about certain violations of criminal law that are committed by persons who are not employees of an intelligence agency– specifically including “unauthorized disclosure of classified information.”

Crimes reports in such cases are to be submitted to the Department of Justice, which “shall maintain a record of all special crimes reports received from the Agency.”  If, in addition, the agency determines that no public disclosure of classified information would result from further investigation or prosecution of the matter, then it is also to be reported to the appropriate federal investigative agency.

“During the last several years, we have received roughly 50 crime reports each year of leaks to the media of classified information,” said Attorney General Janet Reno in June 2000 testimony before a closed hearing of the Senate Intelligence Committee.  (Although she said “crime report”, the preferred locution seems to be “crimes report.”)

“Because of the large number of leaks and the recognition that the Department and the FBI have limited investigative resources, intelligence agencies do not request criminal investigations of every unauthorized disclosure of classified information,” she said. “Instead, they request investigations of the most damaging leaks, usually around 20-25 cases a year for the last several years. We have opened investigations into almost all of the leaks requested by the victim agencies.”

However, AG Reno explained, “before opening a criminal investigation, the Criminal Division generally requires the agency requesting the investigation to submit the answers to eleven specific questions regarding what was leaked and who had access to it…. We believe that the eleven questions are essentially the equivalent of filing a police report.  They provide the information we need to determine whether a criminal investigation is likely to be productive and, if so, where to start.”

A copy of the DoJ Media Leak Questionnaire with the eleven questions is available here.

The figure of 50 crimes reports per year noted by the Attorney General in 2000 is consistent with George Tenet’s 1997 statement that crimes reports on leaks were being filed “every week.”

But a CIA Inspector General report in 2000 (on the handling of classified information by CIA director John Deutch) said that “Records of the [CIA] Office of General Counsel indicate there were an average of 200 written crimes reports submitted to DoJ each year for the period 1995-1998.”

If that is correct, then presumably the larger figure includes reports of federal crimes other than unauthorized disclosures.

Between September 2001 and February 2008, the Federal Bureau of Investigation initiated and closed the investigation of 85 reported leaks of classified intelligence information, “all of which concerned unauthorized disclosures of classified information to the media,” FBI Director Robert S. Mueller III told the Senate Intelligence Committee in 2008.  “None of these cases reached prosecution,” he said.  But as of February 2008, “21 such cases are [still] under investigation.”  (“Classified Intelligence Leaks, 2001-2008,” Secrecy News, July 15, 2009).

Between 2005 and 2009, U.S. intelligence agencies submitted 183 “referrals” to the Department of Justice reporting unauthorized disclosures of classified intelligence.  Based on those referrals or on its own initiative, the FBI opened 26 leak investigations, and the investigations led to the identification of 14 suspects.  (“FBI Found 14 Leak Suspects in Past Five Years,” Secrecy News, June 21, 2010).

Though it is hard to be certain, the most sustained and prolific leaking of Top Secret and compartmented information may have occurred during the late 1990s when such leaks appeared every few days in the reporting of Washington Times reporter Bill Gertz.

“It’s getting a little tiring to see this constant source of leaks to the Washington Times of classified intelligence documents,” State Department spokesman Nicholas Burns told the Weekly Standard in an otherwise admiring profile of Mr. Gertz in 1996. (“He Drives Them Crazy” by Matthew Rees, December 1, 1996.)

No arrests or prosecutions resulted from that “constant source of leaks,” though it eventually diminished.

Meanwhile, the current Congress is still considering new constraints on disclosure of classified information that go well beyond anything the executive branch has requested or considers prudent.

Robert Litt, the general counsel of the Office of the Director of National Intelligence, recently expressed some criticism of the congressional anti-leak initiative.

“We have discussed with the Intelligence Committee our concern that some of the proposals in their legislation really would not have any deterrent impact or punitive impact on leaks, and might in fact have an adverse impact on the free flow of information to the American people,” Mr. Litt told an American Bar Association meeting last month.

But it is not clear whether the Senate Intelligence Committee, which has not held an open hearing in almost a year, would be moved by appeals to “the free flow of information to the American people.”