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In the George W. Bush Administration, Vice President Dick Cheney advanced the idea that the Office of the Vice President is not part of the executive branch, and that it was therefore exempt from the sort of oversight mechanisms — including classification oversight — which it might otherwise be (and previously was in fact) subject to.

Somewhat unexpectedly, this conception of a Vice Presidency that transcends the three branches of government reappears in the 2012 edition of the Plum Book, an official publication which lists thousands of employment positions for appointees within the federal government and which is published every four years.

“The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter,” the new 2012 Plum Book states in Appendix No. 5, reproducing identical language from the 2008 Plum Book.

This language was first introduced in 2004, when that year’s Plum Book also stopped listing most of the previously identified staff positions in the Office of Vice President, with the exception of the Chief of Staff (I. Lewis Libby) and one other assistant.

By 2008, even those two staff listings had been deleted from the Plum Book as the Office of the Vice President retreated into further concealment.

However, while replicating the language of Cheneyism, the latest Plum Book restores the deleted coverage of the Office of Vice President.

Thirteen current OVP positions are now listed.  And the Office of the Vice President appears — as it did prior to the Bush Administration — under the heading of the Executive Branch.

Update: The statement that the Vice Presidency “belongs neither to the Executive nor to the Legislative Branch but is attached by the Constitution to the latter” is derived from a 1961 Office of Legal Counsel opinion (at p. 11), which termed the question a “semantic problem.” Under the George W. Bush Administration, however, this semantic problem was invoked to alter established oversight practices in the direction of greater secrecy.

The National Reconnaissance Office (NRO), the U.S. intelligence agency that is responsible for developing and operating the nation’s intelligence satellites, has released a redacted version of its Congressional Budget Justification Book for the current fiscal year in response to a Freedom of Information Act request.

“NRO systems allow users to quickly focus multiple sensors on almost any point on the globe to respond to emerging crises or operational requirements and provide persistent, multi-INT coverage,” the budget document says.

“With these capabilities the NRO is an indispensable contributor to national policymakers, the overall national intelligence effort, and the war on terrorism and ongoing military operations…. In addition to their primary intelligence missions, NRO systems increasingly support Homeland Security requirements.”

During the present budget year, the NRO said it is working “to improve the responsiveness of existing systems.” But it is also “developing new product types integrating multi-platform, multi-INT, and multi-domain data to maximize overhead performance and synergistically address the nation’s highest priority issues.”

The agency told Congress it has had “successes developing new operational concepts and sensor data processing tools enabling legacy satellites, designed against different collection requirements and operating well beyond their design lives, to effectively address current intelligence problems.”

The large majority of the NRO budget document has been redacted as classified and was withheld from public disclosure.  But meaningful glimmers of fact or assertion can still be found in what has been released.  For example:

NRO said it has accomplished a “recent 88 percent reduction in collection-to-analyst dissemination timelines.”

NRO expects to complete 15,000 initial and periodic security clearance reviews during the current fiscal year.

The budget document says the funding request for the NRO Inspector General was cut by 37% this year. The NRO said this reduction could be managed although sharp cuts in future budgets were discouraged:  “There is no greater time when an organization is in need of oversight than in times of significantly decreasing budgets. It is during difficult fiscal decline that fraud is most likely to occur, when management controls weaken, and when unintended performance risks take root.”

The current NRO research agenda includes efforts “to take advantage of massive data sets, multiple data sources, and high-speed machine processing to identify patterns without a priori knowledge or pattern definition; [as well as] visualization and presentation of patterns for human interpretation to enable identification of normal and abnormal behaviors to detect, characterize, and identify elusive targets.”

The redacted budget document devotes at least cursory attention to NRO strategic planning, human resources, administration, facilities, information technology, and research and development, among other topics.  Actual NRO budget numbers were not disclosed.

The Senate moved last week to restrain the rapid growth of the Defense Clandestine Service, the Pentagon’s human intelligence operation.

Under a provision of the FY2013 defense authorization act that was approved on December 4, the Pentagon would be prohibited from hiring any more spies than it had as of last April, and it would have to provide detailed cost estimates and program plans in forthcoming reports to Congress.

“DoD needs to demonstrate that it can improve the management of clandestine HUMINT before undertaking any further expansion,” the Senate Armed Services Committee wrote in a report on the new legislation.

Longstanding problems with defense human intelligence cited by the Committee include:  “inefficient utilization of personnel trained at significant expense to conduct clandestine HUMINT; poor or non-existent career management for trained HUMINT personnel; cover challenges; and unproductive deployment locations.”

The Committee noted further that “President Bush authorized 50 percent growth in the CIA’s case officer workforce, which followed significant growth under President Clinton. Since 9/11, DOD’s case officer ranks have grown substantially as well. The committee is concerned that, despite this expansion and the winding down of two overseas conflicts that required large HUMINT resources, DOD believes that its needs are not being met.”

Instead of an ambitious expansion, a tailored reduction in defense intelligence spending might be more appropriate, the Committee said.

“If DOD is able to utilize existing resources much more effectively, the case could be made that investment in this area could decline, rather than remain steady or grow, to assist the Department in managing its fiscal and personnel challenges,” the Senate Committee wrote.

The Washington Post published a revealing account of Pentagon plans to expand the size and reach of the defense human intelligence program in “DIA sending hundreds more spies overseas” by Greg Miller, December 1.

Along with overhead surveillance, bolstering human intelligence has been the focus of one of two major defense intelligence initiatives, said Under Secretary of Defense (Intelligence) Michael G. Vickers last October.  The Defense Clandestine Service “enable[s] us to be more effective in the collection of national-level clandestine human intelligence across a range of targets of paramount interest to the Department of Defense,” he said.

The latest issues of the U.S. Army’s Military Intelligence Professional Bulletin, released under the Freedom of Information Act, are available here (in some very large pdf files).

“A Short History of Army Intelligence” by Michael E. Bigelow of US Army Intelligence and Security Command, dated July 2012, is available here.

Newly updated doctrine from the Joint Chiefs of Staff includes Information Operations, JP 3-13, 27 November 2012, and Joint Forcible Entry Operations, JP 3-18, 27 November 2012.

The defense authorization bill approved by the Senate last week also called upon the Pentagon to expedite the domestic use of unmanned aerial systems (UAS) and their integration into National Airspace System (NAS).

“While progress has been made in the last 5 years [in integrating UASs into domestic airspace], the pace of development must be accelerated,” the Senate Armed Services Committee said in its report on the bill.  “Greater cross-agency collaboration and resource sharing will contribute to that objective.”

“Without the ability to operate freely and routinely in the NAS, UAS development and training — and ultimately operational capabilities — will be severely impacted,” the Senate Committee said.

Members of the public are invited to develop and submit ideas to an essay contest on the potential uses of open source information and technology to support international arms control initiatives.

The State Department is sponsoring the contest in partnership with the James Martin Center for Nonproliferation Studies and the Moscow-based Center for Policy Studies.

“The contest aims to harness the ingenuity of American and Russian citizens to think creatively about innovative ways to use open source information and communication technologies for arms control verification, compliance monitoring, and monitoring of sensitive facilities,” the CNS said in its announcement.

While an essay contest is not a momentous undertaking, this one does seem to represent a wholesome awareness that the underlying realities of national security are changing in fundamental ways.  It follows that national security policies — including classification policies and public engagement — need to adapt accordingly.

“Diplomacy today is very different than it was at the dawn of the nuclear age,” the State Department said. “More often diplomacy is happening in the open, and at quicker speeds.”

“The astonishing advancements in information and communication technologies include new tools and capabilities that could help support arms control transparency and compliance.  This essay contest aims to encourage more public participation, discussion and thought on arms control,” the State Department said.

There is already an impressive history of public participation in arms control efforts, notably including the work of Thomas Cochran and the Natural Resources Defense Council in demonstrating seismic monitoring for verification of a low-threshold nuclear test ban.

In a long-awaited report to the President, the Public Interest Declassification Board urged the White House to take the lead in fixing the national secrecy system.

The Public Interest Declassification Board is an advisory committee that was established by Congress to help promote possible access to the documentary record of significant U.S. national security decisions and activities.  In 2009, President Obama asked the Board to develop recommendations for “a more fundamental transformation of the security classification system.”

“The current classification and declassification systems are outdated,” wrote Board chair Amb. Nancy Soderberg in a November 27 transmittal letter to the President.  “We believe it will require a White House-led steering committee to drive reform, led by a chair that is carefully selected and appointed with specific authorities that you grant.”

At the executive branch agency level, “there is little recognition among Government practitioners that there is a fundamental problem,” Amb. Soderberg told the President.  “Clearly, it will require a Presidential mandate to energize and direct agencies to work together to reform the classification system.”

This is a crucial point.  Left to their own devices, agencies will not fundamentally alter the classification practices that are the entrenched legacy of over half a century.  Future progress in secrecy reform will require agencies to surrender some of the discretion in classification and declassification activity that they have long enjoyed.  But this is unlikely to happen without presidential intervention and direction.

“We hope that our recommendations will serve as a catalyst for discussions and deliberations within the government,” Amb. Soderberg said at a public meeting this morning.

The new report on Transforming the Security Classification System is available here.

Some of the Board’s specific recommendations are naturally subject to debate.  A proposal to reduce the current three-level classification system to two levels was previously recommended by the Joint Security Commission in 1994 but was ultimately abandoned as unworkable.  A proposal to base classification decisions on the degree of protection required for information rather than on the damage that might result from its disclosure is a subtle change that may be worth considering — although a judgment about the degree of protection required would seem to involve an implicit judgment about the damage from disclosure.

But these are quibbles in comparison to the principal PIDB recommendation in favor of presidential leadership of secrecy reform, and establishment of a presidentially-led steering committee to execute needed changes throughout the government.

“The classification system must be modernized as a dynamic, easily understood and mission-enabling system and one that deters over-classification and encourages accessibility,” the Board wrote in its report.  “This will require a coordinated effort across Government beginning with an interagency process led by the White House.”

James F. Hitselberger, a Navy contract linguist who was charged under the Espionage Act for mishandling classified records, yesterday asked a court to release him from pre-trial detention.  His release would pose no hazard, and he is not a flight risk, his public defenders said.

Mr. Hitselberg allegedly removed classified records from a secure facility in Bahrain, and had previously donated classified materials to the Hoover Institution, which maintains a James F. Hitselberger Collection.  (See Document Collector Charged Under Espionage Statute, Secrecy News, November 7, 2012.) He is not suspected of transmitting classified information to a foreign power.

According to prosecutors, Mr. Hitselberger is a shadowy figure who might vanish if released from custody.  They urged that he be detained until trial.

“For almost eight months, the defendant, James Hitselberger, has lived as a fugitive,” according to a November 29 government memorandum in support of detention.  “He speaks multiple foreign languages, has an apparent network of friends and acquaintances overseas, and is adept in adapting to foreign surroundings.”

But in a motion for reconsideration filed yesterday, defense attorneys said that prosecutors had misrepresented the facts.

Mr. Hitselberger “neither fled nor hid from law enforcement officials.”  He “never tried to conceal his identity or location.”  Although government officials had his contact information, “no government agent ever contacted Mr. Hitselberger or asked him to return to the United States.”

“The facts demonstrate that Mr. Hitselberger was not a fugitive, [and he] cooperated with law enforcement in the investigation of his conduct… He was never told that law enforcement agents required him to return to the United States, and he did not ‘flee’ from law enforcement,” defense attorneys wrote.

Even prosecutors admitted that “Hitselberger has no history of violence. Nor has the government’s investigation revealed that he has tried to pass any of the classified information he has acquired to a foreign power.”

Under the circumstances, defense attorneys asked the court to release Mr. Hitselberger from pre-trial detention into the custody of his family, and under electronic monitoring.

“The evidence does not support a finding that Mr. Hitselberger would be a substantial risk of flight or a danger to the community if released,” they wrote. “Mr. Hitselberger will comply with conditions of release and has neither the passport necessary nor the will to flee.”

The offenses allegedly committed by Mr. Hitselberger are undoubtedly violations of classification policy.  But the notion that they rise to the level of multiple felonies is hard to credit, and suggests an excess of zeal among prosecutors.

A status conference in the case will be held on December 13.

See also “Linguist charged with pilfering records seeks release” by Josh Gerstein, Politico, December 5.

President Obama’s declared commitment to provide “an unprecedented level of openness in government” has often been criticized and mocked.  Depending on how one measures it, overall secrecy has actually increased rather than declined. Criminalization of unauthorized disclosures of information to the press has risen sharply, becoming a preferred tactic. Efforts to promote public accountability in controversial aspects of counterterrorism policy such as targeted killing have been blocked by threadbare, hardly credible national security secrecy claims.

But there are also some crucial sectors of the national security domain in which the Obama Administration can properly claim to be the most transparent Administration in history.  The size of the U.S. nuclear weapons arsenal is one such topic.

Today more detailed, official information is available about U.S. nuclear forces than ever before. For an overview, see US Nuclear Forces, 2012 by Hans M. Kristensen and Robert S. Norris, Bulletin of the Atomic Scientists.

Last Friday, the State Department released the latest installment of data on U.S. strategic nuclear forces as counted under the New START Treaty.  The release is informative, and not particularly flattering to the Administration.

“The latest data set shows that the U.S. reduction of deployed strategic nuclear forces over the past six months has been very modest: 6 delivery vehicles and 15 warheads,” wrote Hans Kristensen of FAS in an analysis of the new release.

“The reduction is so modest that it probably reflects fluctuations in the number of deployed weapon systems in overhaul at any given time. Indeed, while there have been some reductions of non-deployed and retired weapon systems, there is no indication from the new data that the United States has yet begun to reduce its deployed strategic nuclear forces under the New START treaty,” he wrote.

This is useful information that permits arms control advocates (and opponents) to focus their efforts on debating policy, rather than on a wearisome effort to ascertain the basic facts.

For related background, see The New START Treaty: Central Limits and Key Provisions, Congressional Research Service, November 30, 2012.

A study performed for the National Geospatial-Intelligence Agency (NGA) “chronicles the policy history of civil and commercial remote sensing from 1960 through 2008.”

The study “highlights the difficulties in establishing a consistent government role in a field where public good and private profit exist side-by-side, and where business interests have the potential to contribute to and conflict with national security interests.”

See U.S. National Security and Economic Interests in Remote Sensing: The Evolution of Civil and Commercial Policy by James A. Vedda, The Aerospace Corporation, February 20, 2009.

The unclassified study was released yesterday by NGA three years after it was requested under the Freedom of Information Act.

Executive branch decisions to classify national security information are subject to judicial review in Freedom of Information Act cases, government attorneys acknowledged in a brief filed yesterday.

That potentially explosive question arose following an extraordinary ruling by a federal judge ordering the U.S. Trade Representative to release a one-page classified document that had been requested under the FOIA by the Center for International Environmental Law.  The document’s classification was not “logical,” said DC District Judge Richard W. Roberts last March, and therefore it was not exempt from public disclosure.

The government appealed that ruling in September, but stopped short of asserting that the court had no authority to order release of the classified document.

Yesterday, in response to arguments presented in an amicus brief from media organizations, government attorneys made their acceptance of judicial review explicit in a final reply brief.

“We agree that district courts (and courts of appeals) play an important role in evaluating the government’s compliance with its obligations under FOIA, in Exemption 1 cases [involving national security classification] as well as others….”

“We have not sought to diminish the role of courts in FOIA Exemption 1 cases, nor have we suggested that the Executive’s determination that a document is classified should be conclusive or unreviewable,” attorneys wrote in the November 27 brief (at p. 8).

In other words, the government did not assert that the executive has some kind of transcendent Article II classification power, nor did government attorneys contend (à la Egyptian President Morsy) that the judicial review provisions of FOIA are an unconstitutional infringement on executive authority.

This was the crucial information policy question that was raised by the move to appeal Judge Roberts’ highly unusual disclosure order, and the government has more or less resolved it by submitting to the discipline of judicial review.

What remains is a bona fide dispute:  Was the decision to classify the USTR document well-founded and plausible, as the government insists, and therefore entitled to judicial deference?  Or was it illogical, as the lower court ruled, nullifying the document’s exemption from FOIA?

Oral arguments in the case are scheduled for February of next year.

In a memorandum to agency heads last week, President Obama transmitted formal requirements that agencies must meet in order “to deter, detect, and mitigate actions by employees who may represent a threat to national security.”

Along with espionage and acts of violence, the National Insider Threat Policy notably extends to the “unauthorized disclosure of classified information, including the vast amounts of classified data available on interconnected United States Government computer networks.” To combat such unauthorized disclosures, agencies are required to “monitor employee use of classified networks.”

The new standards, which have not been made publicly available [update: now available here], were developed by an interagency Insider Threat Task Force that was established by President Obama in the October 2011 executive order 13587, and they reflect the ongoing tightening of safeguards on classified information in response to the voluminous leaks of the last few years.

But the latest issuance also illustrates the superfluousness (or worse) of current congressional action concerning leaks.  Executive branch agencies do not need Congress to tell them to develop “a comprehensive insider threat program management plan,” as would be required by the Senate version of the pending FY2013 Intelligence Authorization Act (section 509).  Such plans will go forward in any case.

Sen. Ron Wyden has placed a hold on the pending intelligence bill, citing objections to several of the proposed anti-leak provisions contained in Title V of the bill. He said the proposed steps were misguided or counterproductive.

“I am concerned that they will lead to less-informed public debate about national security issues, and also undermine the due process rights of intelligence agency employees, without actually enhancing national security,” he said on November 14.  (See related coverage from FDL, POGO, LAT.)

The most problematic measures in the Senate bill are those intended to restrict contacts between reporters and government officials.

Senator Wyden said that legislative actions to limit the ability of the press to report on classified matters could undermine or cripple the intelligence oversight process.

“I have been on the Senate Intelligence Committee for 12 years now, and I can recall numerous specific instances where I found out about serious government wrongdoing–such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program–only as a result of disclosures by the press,” he said.

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The record of a July 2012 House Judiciary Committee hearing on National Security Leaks and the Law has recently been published.

The Office of the Inspector General (OIG) of the Department of Justice said it had recently completed a review of the Department’s use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA), but the report is classified and its findings have not been released.

“The OIG examined the number of disseminated FBI intelligence reports containing a reference to a U.S. person identity, the number of U.S. person identities subsequently disseminated in response to requests for identities not referred to by name or title in the original reporting, the number of targets later determined to be located in the United States, and whether communications of such targets were reviewed.  The OIG also reviewed the FBI’s compliance with the required targeting and minimization procedures,” according to a November 7 OIG memorandum on Top Management and Performance Challenges in the Department of Justice.

A copy of the classified report has been requested under the Freedom of Information Act.

Earlier this year, Sen. Ron Wyden placed a hold on reauthorization of the FISA Amendments Act “because I believe that Congress does not have enough information about this law’s impact on the privacy of law-abiding American citizens, and because I am concerned about a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans’ communications.”

The Department of Defense issued a new Directive last week establishing DoD policy for the development and use of autonomous weapons systems.

An autonomous weapon system is defined as “a weapon system that, once activated, can select and engage targets without further intervention by a human operator.”

The new DoD Directive Number 3000.09, dated November 21, establishes guidelines that are intended “to minimize the probability and consequences of failures in autonomous and semi-autonomous weapon systems that could lead to unintended engagements.”

“Failures can result from a number of causes, including, but not limited to, human error, human-machine interaction failures, malfunctions, communications degradation, software coding errors, enemy cyber attacks or infiltration into the industrial supply chain, jamming, spoofing, decoys, other enemy countermeasures or actions, or unanticipated situations on the battlefield,” the Directive explains.

An “unintended engagement” resulting from such a failure means “the use of force resulting in damage to persons or objects that human operators did not intend to be the targets of U.S. military operations, including unacceptable levels of collateral damage beyond those consistent with the law of war, ROE [rules of engagement], and commander’s intent.”

The Department of Defense should “more aggressively use autonomy in military missions,” urged the Defense Science Board last summer in a report on “The Role of Autonomy in DoD Systems.”

The U.S. Army issued an updated Army Field Manual 3-36 on Electronic Warfare earlier this month.