In its new term that began yesterday, the U.S. Supreme Court will hear arguments over whether to affirm the right of journalists and human rights organizations to challenge the constitutionality of the Foreign Intelligence Surveillance Act (FISA) Amendments Act, or FAA.

The FISA Amendments Act authorizes the collection of a broad swath of public communications without a warrant (though not the intentional targeting of the communications of any particular U.S. person).  As such, critics say, it jeopardizes freedom of communication with individuals abroad.

At issue is whether the plaintiffs, represented by the American Civil Liberties Union, have the “standing” to bring the case.  A lower court said they did not, but an appeals court said they did.  It will be up to the Supreme Court to decide the case, which is captioned Amnesty et al v. Clapper.

The Electronic Privacy Information Center filed an amicus brief (which I co-signed) urging the Court to affirm standing on grounds that the plaintiffs have established a reasonable concern about the security of their communications, and that existing oversight mechanisms are inadequate.

“This threat to privacy is especially acute given the capabilities of the National Security Agency and the absence of meaningful oversight. Where enormous surveillance capabilities and blanket secrecy coexist, the public may reasonably fear the interception and collection of private communications,” the EPIC brief stated.

Furthermore, the current structure “lacks significant public oversight and accountability.”

“The public, the judiciary (but for the FISC [Foreign Intelligence Surveillance Court]) and almost all Members of Congress are kept in the dark as to the most extensive electronic surveillance program undertaken by the US government. While the DNI and Attorney General provide internal reporting requirements, none of this information is made available to the whole Congress or the public broadly, and thus no meaningful public oversight can occur.”

“When the law gives new authority to conduct electronic surveillance, there should also be new means of oversight and accountability. The FISA Amendments Act fails this test,” the brief said.

The Obama Administration proposal to renew the Foreign Intelligence Surveillance Act (FISA) Amendments Act for another five years would be amended to a three year extension, if the Senate Judiciary Committee has its way.

Last June, the Senate Intelligence Committee approved — without amendment — the Administration’s request for a five year renewal of the intelligence surveillance authorities of the FISA Amendments Act (FAA) that are due to expire at the end of this year.  Shortly thereafter, the Senate Judiciary Committee asked that the measure be referred for its consideration as well.

Last week, the Judiciary Committee reported its version of the bill and, unlike the Intelligence Committee, it insisted on amending the Administration proposal, over the opposition of Republican members of the Committee.

The amended version of the bill would not curtail the scope of existing surveillance authorities.

However, the Committee amendment would extend those authorities until 2015, rather than 2017 as the Administration asked.  It would further require the Inspector General of the Intelligence Community “to conduct a comprehensive review of the implementation of the FISA Amendments Act, with particular regard to the protection of the privacy rights of United States persons.”  The Inspector General would also be required to publicly release an unclassified summary of the review. A similar proposal offered by Senators Wyden and Udall was rejected by the Senate Intelligence Committee.

These modest amendments to the Administration proposal are necessary and appropriate, the Judiciary Committee said in its new report on the bill.

“The alternative of a five-year extension […] without any additional oversight or accountability requirements, and without the benefit of the complete work of the inspectors general, is ill-advised and inconsistent with this Committee’s constitutional responsibility to provide vigorous and effective oversight.”

All Republican members of the Committee voted against the amended bill and urged that the Obama Administration’s position be adopted by Congress.

“Our oversight of the statute has found no evidence that it has been intentionally misused or that more oversight is needed,” the Republicans wrote in a minority statement appended to the report.  “The combination of the statutory limitations on collection, targeting and minimization procedures and guidelines, and compliance oversight by the Administration and Congress, ensure that the rights of U.S. persons are sufficiently protected when their communications are incidentally collected in the course of targeting non-U.S. persons located abroad.”

Yet such oversight has failed in the past, the Committee report noted.  In its narrative account of the background to the bill, the Committee majority recalled that the post-9/11 surveillance program began outside the framework of the law and without proper congressional notification or approval.

“This warrantless surveillance was conducted outside the scope of FISA, without any approval by the FISA court, and without the full knowledge or consent of Congress,” the Committee report noted.  “The public first became aware of the existence of this warrantless surveillance program in December 2005 through a report in the New York Times.”

Although the Judiciary Committee bill, as amended, is inconsistent with the version reported out of the Senate Intelligence Committee, the report noted that the amended bill was supported by Sen. Dianne Feinstein, the chair of the Intelligence Committee, which should presumably increase the likelihood of its approval by the full Senate.  If approved, the amended bill would then have to be reconciled with the “clean,” unamended extension that was approved by the House.

The Director of National Intelligence “is committed to protecting civil liberties and privacy, which are foundational principles of our Nation’s democratic society, preserved in the Constitution of the United States, and guaranteed in Federal law.”

So states a new Intelligence Community Directive on Civil Liberties and Privacy, signed by DNI James R. Clapper on August 31, 2012.

Beyond affirming the value of civil liberties, the new directive — ICD 107 — also directs the establishment of oversight mechanisms and of procedures for redress of alleged violations.

The DNI directive does not include definitions of privacy or civil liberties, and its practical meaning is somewhat elusive.

“Intelligence activities shall be conducted in a manner that protects civil liberties and privacy,” the directive states.  But that seemingly categorical statement is rendered ambiguous by the very next sentence.

“The IC shall protect civil liberties and privacy in a manner that enables proper intelligence integration and information sharing and safeguarding.”

In order to promote improved information sharing, the Director of National Intellingence told agencies to make use of “tearlines.” This refers to the practice of segregating and withholding the most sensitive portions of a document, allowing the remainder to be “torn off,” literally or figuratively, and widely disseminated.

“Tearlines are portions of an intelligence report or product that provide the substance of a more highly classified or controlled report without identifying sensitive sources, methods, or other operational information,” a new DNI directive states. “Tearlines release classified intelligence information with less restrictive dissemination controls, and, when possible, at a lower classification.”

“Tearlines shall be written for the broadest possible readership in accordance with established information sharing policies, and requirements in law and policy to protect intelligence sources and methods.”

See Tearline Production and Dissemination, Intelligence Community Directive 209, September 6, 2012.

In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress mandated that “the President shall… issue guidelines… to ensure that information is provided in its most shareable form, such as by using tearlines to separate out data from the sources and methods by which the data are obtained” (section 1016(d)(1)).

Although the tearline approach also lends itself to public dissemination of national security documents, with particularly sensitive material removed, the new intelligence directive does not explicitly extend to sharing information with the public.

In 1984, President Reagan ordered the Director of Central Intelligence to develop “capabilities for the pre-emptive neutralization of anti-American terrorist groups which plan, support, or conduct hostile terrorist acts against U.S. citizens, interests, and property overseas.”

The President further ordered the DCI to “develop a clandestine service capability, using all lawful means, for effective response overseas against terrorist acts commmitted against U.S. citizens, facilities, or interests.”

Those instructions were contained in National Security Decision Directive 138, “Combatting Terrorism,” which was issued on April 3, 1984.

A few weeks earlier, Hezbollah forces in Lebanon had kidnapped William Buckley, the CIA station chief in Beirut.

NSDD 138 remained classified for many years and was not fully declassified until two years into the Obama Administration.

Updated below

The capacity of gas centrifuges to enrich uranium increased by two orders of magnitude between 1961 and 1967, from 0.39 kg-SWU/year to 30 kg-SWU/year. That striking fact was declassified by the U.S. Department of Energy in 2008 and made public this month. See update/correction below.

Under the terms of the Atomic Energy Act (section 142), which governs the classification of nuclear weapons-related information, the Department of Energy is required to conduct a “continuous review” of its classified information “in order to determine which information may be declassified.”  And so it does.

Slowly and methodically, the Department has declassified numerous categories of nuclear information over the last several years.  Those declassification actions were documented recently in response to a Freedom of Information Act request from the Federation of American Scientists.

At least one of the declassifications is of lasting and profound political importance, namely the public disclosure in 2010 of the size of the U.S. nuclear weapons arsenal.

Other declassifications involve obscure matters of uncertain significance, like the now-declassified “fact that thorium metal is used in the radiation case of the W71 warhead.”

In each instance, declassification is preceded by a deliberative process which considers whether the information is already widely known; whether its publication would assist an adversary in the development of countermeasures to U.S. systems or in development of its own nuclear capability; whether disclosure would have a detrimental effect on U.S. foreign relations; whether it would benefit the public welfare; and whether it would otherwise enhance government operations.

With respect to the declassification of historical U.S. centrifuge information, the DOE record of decision noted that while the information was not widely known, it would not assist in development of countermeasures, would not have a detrimental effect on foreign relations, and would not enhance government operations.  Other aspects of the justification for declassification of centrifuge data, however, remained classified and were not released.

On the whole, DOE seems to have a well-articulated procedure for conducting declassification of atomic energy information.  Under DOE regulations, there is even a provision for members of the public to propose topics for declassification (10 CFR 1045.20), though it has rarely if ever been invoked.

The outcome of the declassification process, however, is somewhat unpredictable.  It is contingent upon an official — but inevitably subjective — assessment of current technological developments and political trends.  The correct answer is not always self-evident.

“Prior classification decisions, while not unwarranted, might have taken a slightly different direction had the post-Cold War environment been more clearly seen a decade ago,” wrote a Los Alamos technical evaluation panel in a 2003 report to DOE headquarters.

Classified atomic energy information still plays a potent role in public policy and is not exclusively the province of technologists.  This week the Nuclear Regulatory Commission granted a license to General Electric-Hitachi for construction of a uranium enrichment plant in Wilmington, NC, which uses a controversial laser enrichment process known as SILEX.  Arms control advocates (including FAS) and others argued that the SILEX process raises distinctive proliferation concerns that weigh against its adoption.

In 2001, the SILEX process was deemed by DOE to contain privately-generated Restricted Data that is classified under the Atomic Energy Act.

Aside from nuclear weapons information classified under the Atomic Energy Act, the Department of Energy also classifies national security information by executive order.  DOE described the current state of its national security information program in a recent report on its performance of the Fundamental Classification Guidance Review.

Update/correction: The declassified historical centrifuge data was previously published in a 2009 paper entitled Gas Centrifuge Theory and Development: A Review of U.S. Programs by R. Scott Kemp of MIT. The information was declassified due in part to research conducted independently by Dr. Kemp and released by him after obtaining the approval of DOE.

Fifty years ago, the President’s Foreign Intelligence Advisory Board (PFIAB) urged President John F. Kennedy to take “drastic action” against whoever had leaked classified intelligence information to a New York Times reporter.  The Board also suggested that the CIA be empowered domestically to track down such leaks.

The PFIAB recommendations to President Kennedy were memorialized in an August 1, 1962 report that established a template for future efforts to combat leaks, up to the present day.  The report stated:

“Based on a review of intelligence disclosures in a New York Times article by Hanson Baldwin, the Board recommended that:

“(1) the President emphasize to Government officials his concern about such disclosures and his intention in this case to identify and take action against the source of Government leaks to the newspaper writer;

“(2) the President take drastic action against the offender if identified by the FBI, or against the heads of offices from which the leak emanated;

“(3) the Departments of State and Defense and the CIA require their personnel to make memoranda of record on talks with the press, and to clear such contacts in advance with departmental Public Relations Officers;

“(4) those responsible for protecting intelligence data and techniques identify selected areas of sensitive data requiring special handling;

“(5) ways be sought to reduce the number of persons involved in preparing highly sensitive intelligence estimates;

“(6) the DCI and the Director of the Defense Intelligence Agency be provided with the investigative capability to run down leaks of sensitive intelligence data;

“(7) a confidential policy be established within the Executive Branch as to the degree of disclosure of intelligence data to be made to Congressional Committees;

“(8) a re-study to be made of possible proposals for legislation to protect official secrets; and

“(9) a review be made of Government policy and procedures with a view to declassifying non-sensitive information and thereby strengthening programs for the safeguarding of sensitive data.”

The PFIAB recommendations were declassified as part of the JFK Assassination Records Collection, and were reprinted in a new history of PFIAB called “Privileged and Confidential” by the late Kenneth M. Absher, et al.

The recommendations were presented to President Kennedy at an August 1, 1962 meeting that was recorded and transcribed.  Excerpts were published in “J.F.K. Turns to the C.I.A. to Plug a Leak” by Tim Weiner, New York Times, July 1, 2007. The news story containing classified intelligence information that prompted the PFIAB’s fury was “Soviet Missiles Protected in ‘Hardened’ Positions” by Hanson W. Baldwin, New York Times, July 26, 1962.

It is not known whether or to what extent the PFIAB recommendations were acted upon, and there is no indication that the source of the Times story was ever identified.

Needless to say, the prevalence of leaks was not discernibly affected by any actions to deter them that were taken by the Kennedy Administration or its successors.  Still, the 1962 PFIAB recommendations defined options for combating leaks of classified information that would be reiterated time and again in the years to come.

“All contacts with any element of the news media in which classified National Security Council matters or classified intelligence information are discussed will require the advance approval of a senior official,” ordered President Reagan in his 1982 directive NSDD-19, echoing the third PFIAB recommendation above.

The pending anti-leak legislation that was introduced lately by the Senate Intelligence Committee also bears a family resemblance to the PFIAB menu of recommended actions.

In fact, the congressional intelligence committees appear to have internalized a PFIAB-like perspective to a surprising extent, and they have prioritized executive branch security interests above other considerations.  While fiercely opposing leaks of classified information, the intelligence committees have had nothing to say about the subpoena of New York Times reporter James Risen or the ill-conceived prosecution of former NSA official Thomas Drake or similar actions which jeopardize values other than security, narrowly construed.

Government attorneys this week appealed an extraordinary court order that required the Office of the United States Trade Representative (USTR) to publicly release a classified government document. They said the order reflected “improper skepticism” of the government.

In response to a Freedom of Information Act lawsuit filed by the Center for International Environmental Law, DC District Judge Richard W. Roberts had ruled earlier this year that a classified USTR position paper was not “properly classified” and therefore must be disclosed under FOIA.

This was a bold move by Judge Roberts, since it involved making an independent assessment of (i.e., “judging”) the validity of a government classification action.  That is a task that courts have gradually shunned over the years.  When most courts review whether a document has been “properly classified” (and therefore exempt from disclosure under FOIA) they normally ask whether formal classification procedures have been followed, not whether there is a substantive basis for classification.  Judge Roberts did the latter.  He concluded that USTR’s classification of the document in question was not “logical” and so did not warrant an exemption from disclosure.

For critics of classification policy who believe that new corrective mechanisms are needed to curb indiscriminate classification, Judge Roberts’ decision was a thrilling departure from the ordinary practice of judicial “deference.” It is deference, after all, that has yielded the often dysfunctional classification system that we have today.

But the government naturally sees it differently.

Judge Roberts “inappropriately second-guessed the Executive’s expertise in the uniquely sensitive area of foreign relations,” according to an appeals brief filed by government attorneys this week. “The court’s refusal to accept the judgment of trade negotiators concerning the harm to future negotiations failed to give deference where it was due, and overstepped the bounds of the judicial role in resolving FOIA cases.”

“The district court here failed to apply governing precedent, and subjected the government’s justifications to improper skepticism and second-guessing,” the appeals brief said.

The appeals brief cited an imposing body of case law in support of its position on judicial deference to executive classification authority, and restated its views of the harm to U.S. foreign relations that could result from release of the one-page USTR memo that is in dispute.

However, the new brief did not go so far as to suggest that courts lack the authority to compel the involuntary disclosure of a classified document.  That is an argument of last resort.

A response from the appellee is due next month.

In 2006, the Department of Energy formally declassified the already widely publicized fact “That the People’s Republic of China obtained some Restricted Data information on the W88 [nuclear] warhead, and perhaps the complete W88 design.”

Then, in a remarkable display of bureaucratic acrobatics, DOE classified the memo that authorized the declassification of that information.  The declassification memo was found to merit classification at the Secret/Restricted Data level.

Five years later, in 2011, the two-sentence memo was reviewed for declassification and DOE has now released it.

As often seems to be the case, declassification here lags behind disclosure rather than leading it.  For a convenient summary of issues surrounding China and the W88, see China: Suspected Acquisition of U.S. Nuclear Weapon Secrets, Congressional Research Service, updated February 1, 2006.

For decades, President Reagan’s 1981 National Security Decision Directive (NSDD) 7 remained entirely classified.  According to a 1999 listing of Reagan NSDDs issued by the National Security Council, even the title of NSDD 7 was classified.

In 2008, the document was partially declassified, bearing the title “[deleted] Weapons.”  It stated:  “The production and stockpiling of [deleted] weapons is authorized with stockpiling being restricted to the United States [deleted].”

What is this all about?  What mysterious weapons were to be produced and stockpiled that could not be acknowledged three decades later?

In all likelihood, said Hans Kristensen of FAS, the deleted term describing the weapons is “enhanced radiation.”  Two enhanced radiation weapons started production in August/September 1981, he noted: the W70 (Lance warhead) and the W79 (artillery shell).

That likelihood is actually a certainty, said our colleague Allen Thomson, who pointed to the 1991 Bush directive NSD 59.  The Bush directive, declassified in 1996, listed the title of NSDD 7 with no redactions:  Enhanced Radiation Weapons.

“The Department of Defense does not conduct electronic or physical surveillance of journalists,” Pentagon press spokesman George E. Little wrote in a September 6 response to reporters who had questioned the scope of official monitoring of their work.

The DoD disavowal of active surveillance is almost certainly true, as far as it goes.  Even if there were surveillance to be done, it would probably not be performed by DoD.  But the reporters’ question was not a frivolous one.  There is an historical basis for their concern.

The celebrated CIA “family jewels” report on illegal Agency activities prior to the mid-1970s that was finally released in full in 2007 included descriptions of CIA operations to surveil reporters in order to identify their confidential sources.

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

CELOTEX II was described this way:  “At the direction of the DCI, surveillance was conducted of Jack Anderson and at various times his ‘leg men,’ Britt Hume, Leslie Whitten, and Joseph Spear, from 15 February to 12 April 1972. In addition to the physical surveillance, an observation post was maintained in the Statler Hilton Hotel directly opposite Anderson’s office. The purpose of this surveillance was to attempt to determine Anderson’s sources for highly classified Agency information appearing in his syndicated columns.”

The results of these surveillance activities were not reported in the CIA document.

Government attorneys this week reiterated their argument that New York Times reporter James Risen “does not have a ‘reporter’s privilege’ to refuse to identify his source” in the prosecution of former CIA officer Jeffrey Sterling, who is accused of disclosing classified information to Risen.  The attorneys cited a new ruling in another Circuit that rejected a similar claim of privilege, and they urged the Fourth Circuit Court of Appeals to affirm their position.

A new U.S. Army publication provides an introduction to open source intelligence, as understood and practiced by the Army.

“Open-source intelligence is the intelligence discipline that pertains to intelligence produced from publicly available information that is collected, exploited, and disseminated in a timely manner to an appropriate audience for the purpose of addressing a specific intelligence and information requirement,” the document says.

“The world is being reinvented by open sources. Publicly available information can be used by a variety of individuals to [achieve] a broad spectrum of objectives. The significance and relevance of open-source intelligence (OSINT) serve as an economy of force, provide an additional leverage capability, and cue technical or classified assets to refine and validate both information and intelligence.”

See “Open-Source Intelligence,” Army Techniques Publication (ATP) 2-22.9, July 2012.

The new manual is evidently intended for soldiers in the field rather than professional analysts, and it takes nothing for granted.  At some points, the guidance that it offers is remedial rather than state of the art.

For example, “if looking for information about Russian and Chinese tank sales to Iraq, do not use ‘tank’ as the only keyword in the search. Instead, use additional defining words such as ‘Russian Chinese tank sales Iraq’.”

But the manual reflects the ongoing maturation of open source intelligence (OSINT), and it contains several observations of interest.

“The reliance on classified databases has often left Soldiers uninformed and ill-prepared to capitalize on the huge reservoir of unclassified information from publicly available information and open sources,” the manual states.

Classification can also be a problem in open source intelligence, however, and “concern for OPSEC [operations security] can undermine the ability to disseminate inherently unclassified information.”

“Examples of unclassified information being over-classified [include] reported information found in a foreign newspaper [and a] message from a foreign official attending an international conference.”

Therefore, pursuant to Army regulations, “Army personnel will not apply classification or other security markings to an article or portion of an article that has appeared in a newspaper, magazine, or other public medium,” although the resulting OSINT analysis might be deemed “controlled unclassified information.”

Curiously, the new manual itself is blocked from access by the general public on Army websites (such as this one). But an unrestricted copy was released by the Army on request.

Somewhat relatedly, the Department of Defense this week published a new Instruction on DoD Internet Services and Internet-Based Capabilities, DODI 8550.01, September 11, 2012.