The House of Representatives voted yesterday to renew the Foreign Intelligence Surveillance Act (FISA) Amendments Act for five years.

The Act generally authorizes electronic surveillance of non-U.S. persons and U.S. persons who are believed to be outside the United States, while prohibiting the “intentional” targeting of persons in the U.S. without an individualized warrant, seemingly leaving a wide opening for unintentional or incidental collection.  This and other features of the Act prompted concerns about the expansion of surveillance authority and the erosion of constitutional protections.

But such concerns, however eloquently expressed by a few dissenting Members, gained little traction.  The House rebuffed efforts to increase reporting on implementation of the law or to shorten the duration of its renewal, and approved the measure by a vote of 300-118.

In the Senate, Sen. Ron Wyden has placed a hold on the bill in an attempt to compel disclosure of the current scale of government interception of U.S. communications, which the Administration says it cannot provide.

The Congressional Research Service has produced a new report on Reauthorization of the FISA Amendments Act, dated September 12, 2012.

The ACLU is challenging the constitutionality of the Act in a case that will be heard by the U.S. Supreme Court on October 29.

A federal judge this week granted permission to J. William Leonard, the former director of the Information Security Oversight Office, to discuss three documents that were at issue in the trial of former National Security Agency official Thomas Drake.

Mr. Leonard, an expert witness for the Drake defense, had sought permission to publicly challenge the legitimacy of the classification of one of the documents cited in the indictment against Mr. Drake, which was ultimately dismissed.

The government had opposed the motion to lift the non-disclosure obligations in the protective order that bound Mr. Leonard.  Government attorneys argued that Mr. Leonard had no standing to make such a request, which was filed by Mr. Drake’s public defenders James Wyda and Deborah L. Boardman.  The government also said the request should be denied in order “to prevent a flood of similar claims by non-parties in other completed cases.”  Instead, prosecutors suggested, Mr. Leonard could file a Freedom of Information Act request for the records in question.

But Judge Richard D. Bennett said that “the government’s arguments in this case are inapposite.” Even if the documents were made available to Mr. Leonard under FOIA, “he would not have been permitted to discuss them as he would remain bound by this Court’s Protective Order.”

Judge Bennett therefore formally lifted the Protective Order and granted Mr. Leonard permission to publicly discuss his concerns.

The documents themselves, and the complaint that Mr. Leonard submitted to the Information Security Oversight Office, were released by the National Security Agency under FOIA in July.  (“Defense, Critique of NSA Classification Action Released,” Secrecy News, July 30.)

The complaint itself is still pending, and is awaiting a formal response from the Department of Justice, said the current ISOO director, John P. Fitzpatrick.

The challenge presented by Mr. Leonard extends well beyond the Drake case or the secrecy practices of the National Security Agency.  Essentially, the question posed by the former ISOO director’s complaint is whether there is any threshold beyond which classification of information is so completely unjustified as to trigger third-party intervention to correct the problem.  As of today, such corrective mechanisms are weak or nonexistent.

Prosecutors in the pending leak case of former State Department contractor Stephen Kim said they had discovered that the classified information Mr. Kim is accused of disclosing to a reporter without authorization had been circulated within the government more broadly than they had realized.

That discovery requires further investigation and disclosure to the defense, prosecutors said in a recent status report to the court.

“In short, the undersigned prosecutors have learned that the intelligence report identified in the Indictment had been used for purposes of drafting a separate intelligence product, which product was never finalized prior to the unauthorized disclosure at issue,” the status report said. “Some of the drafting occurred within the time period deemed relevant by the Parties.”

“The undersigned prosecutors are investigating this drafting process to determine its scope and what discoverable material may arise from it. The undersigned prosecutors have advised that their review of this additional information could take two additional months to complete before any materials related thereto are produced to the defense. While counsel for the defendant have not been informed of the content of this new information, counsel reasonably expect that it could have a material impact on their understanding of the government’s case, and likely will prompt additional discovery requests.”

A new annual report on government secrecy discusses the quantitative and qualitative obscurity of government secrecy policy which makes secrecy hard to evaluate and to control.

The report was published by OpenTheGovernment.org, a coalition of some 80 organizations concerned with government transparency.

“Measuring what it is we actually know about the openness of the American government is not a straightforward endeavor,” the report says. “Information available to the public provides inconsistent and partial indicators about whether our government is becoming more, or less, open. In some areas, the information needed to know what the Executive Branch is doing and to hold it accountable to the public is not available at all.”

Even where quantitative data are available, as in the case of the number of classification decisions published annually by the Information Security Oversight Office, their qualitative significance is unclear, the report said.

“Having information about the quantity of secrets kept by the federal government tells us nothing about their quality.”

The OpenTheGovernment.org report assembled the quantitative indicators of government secrecy and disclosure that could be obtained, and also discussed several categories that should be available but are not.

“Good information is essential for the public to know what interests are influencing government policies, and more,” said Patrice McDermott, executive director of OpenTheGovernment.org. “Partial and mis- information, however, erodes accountability and prevents the public from having an informed debate about critical national issues.”

“The Department of Defense does not conduct electronic or physical surveillance of journalists” as a way of preventing leaks of classified information, Pentagon press spokesman George E. Little wrote last week.

But Department officials do “review media reports for possible unauthorized disclosure of classified information,” he said.

Mr. Little was responding to a July 20 letter from leaders of the Pentagon Press Association, who questioned the nature of DoD’s intention to “monitor all major, national level reporting” for evidence of leaks.  (“Reporters Seek Clarification of Pentagon Anti-Leak Policy,” Secrecy News, July 23, 2012)

“The Secretary and Chairman [of the Joint Chiefs] both believe strongly in freedom of the press and encourage good relations between the Department and the press corps,” Mr. Little wrote in his letter, which was first reported in Politico. “Their efforts to stop the unauthorized disclosures of classified information do not involve restricting press access to DoD officials.”

The National Archives announced that it has declassified over a thousand pages of records pertaining to the 1940 massacre of thousands of Polish Army officers and intellectuals in the Katyn Forest in the Soviet Union.

The Katyn massacre has been a subject of intense interest and controversy in Poland, as well as a perennial irritant in Polish-Russian relations.  The question of US knowledge of the massacre, and the possibility of a US coverup designed to protect the World War II alliance with the Soviet Union, has been a topic of speculation in the Polish press which some Polish observers hoped might be confirmed by the newly declassified records.

The Department of Defense should focus on increasing the autonomy of drones and other unmanned military systems, a new report from the Defense Science Board said.

DoD should “more aggressively use autonomy in military missions,” the Board report said, because currently “autonomy technology is being underutilized.”  See “The Role of Autonomy in DoD Systems,” Defense Science Board, dated July 2012 and released last week.

“Autonomy” in this context does not mean “computers making independent decisions and taking uncontrolled action.”  The Board is not calling for the immediate development of Skynet at this time.  Rather, autonomy refers to the automation of a particular function within programmed limits.  “It should be made clear that all autonomous systems are supervised by human operators at some level,” the report stressed.

Increased autonomy for unmanned military systems “can enable humans to delegate those tasks that are more effectively done by computer… thus freeing humans to focus on more complex decision making.”

“However, the true value of these systems is not to provide a direct human replacement, but rather to extend and complement human capability by providing potentially unlimited persistent capabilities, reducing human exposure to life threatening tasks, and with proper design, reducing the high cognitive load currently placed on operators/supervisors.”

But all of that is easier said than done.

“Current designs of autonomous systems, and current design methods for increasing autonomy, can create brittle platforms” that are subject to irreversible error.  There are also “new failure paths associated with more autonomous platforms, which has been seen in friendly fire fatalities…. This brittleness, which is resident in many current designs, has severely retarded the potential benefits that could be obtained by using advances in autonomy.”

The Defense Science Board report discusses the institutional challenges confronting a move toward increasing autonomy, including the obstacles posed by proprietary software.  It offers an extended discussion of conflict scenarios in which the enemy employs its own autonomous systems against U.S. forces.  The authors describe China’s “alarming” investment in unmanned systems, and encourage particular attention to the relatively neglected topic of the vulnerability of unmanned systems.

The report includes some intriguing citations, such as a volume on “Governing Lethal Behavior in Autonomous Robots,” and presents numerous incidental observations of interest.  For example:

“Big data has evolved as a major problem at the National Geospatial Intelligence Agency (NGA).  Over 25 million minutes of full motion video are stored at NGA.”

But new sensors will produce “exponentially more data” than full motion video, and will overwhelm current analytical capabilities.

“Today nineteen analysts are required per UAV orbit [i.e. per 24 hour operational cycle].  With the advent of Gorgon Stare, ARGUS, and other Broad Area Sensors, up to 2,000 analysts will be required per orbit.”

The government “can’t hire enough analysts or buy enough equipment to close these gaps.”

The U.S. Army has recently begun publishing two new series of Army Doctrine Publications (ADP) and Army Doctrine Reference Publications (ADRP).

These publications generally offer a digest of existing doctrine in introductory form for broad consumption, with limited modifications and a few updates.  Last week, the Army issued new unclassified publications on intelligence and special operations, among other topics.

Updated below

Throughout much of this year, the U.S. military has been conducting joint military exercises with Israel or planning such exercises.  A descriptive listing of 2012 U.S. exercises with Israel bearing codenames like NOBLE MELINDA and RELIANT MERMAID was recently published in a House Armed Services Committee hearing volume on the FY2013 budget request for U.S. European Command (EUCOM).  The listing was current as of March 2012; the schedule has shifted somewhat since then.

Whatever their intrinsic military value may be, the exercises also serve a messaging function.  They constitute signals to internal and external audiences concerning the state of the U.S.-Israel alliance.

The “robust bilateral and multilateral military exercise program offers the Israel Defense Forces strong reassurances of the United States’ strong commitment to the security of Israel,” said Adm. James G. Stavridis, the EUCOM Commander.

However, the specific content of the messages being sent by the exercises is sometimes ambiguous and subject to contrasting, divergent interpretations.

Time Magazine reported on Friday that the pending exercise known as AUSTERE CHALLENGE was going to be reduced in scale.  The downsizing of the exercise was perceived by some as an effort to discourage any unilateral Israeli attack on Iran as well as a signal of a U.S. loss of confidence in Israel. “Basically what the Americans are saying is, ‘We don’t trust you’,” an Israeli official told Time.  (“U.S. Scales-Back Military Exercise with Israel, Affecting Potential Iran Strike” by Karl Vick and Aaron J. Klein, August 31.)

But the New York Times reported Sunday that pending military exercises were meant to reassure Israel, to strengthen military pressure against Iran and to reduce incentives for unilateral action.  (“To Calm Israel, U.S. Offers Ways to Restrain Iran” by David E. Sanger and Eric Schmitt, September 2.)

In the newly published responses to questions for the record from the House Armed Services Committee, US EUCOM Commander Adm. Stavridis disputed the assertion by Rep. Robert J. Wittman (R-VA) that threats to Israel had “increased in the last year.”

“While Israel is certainly in a volatile region of the world, I would argue that the threats to Israel have not increased in the last year,” Adm. Stavridis wrote.

“If you take the broad view of the history of the modern state of Israel, it is certainly more secure now that it was in 1948, 1967, 1973, or even during the First or Second Intifadas. Israel currently has signed peace treaties with two of its four neighbors. A third neighbor, Syria, is currently undergoing a period of serious internal unrest and is in no position to threaten Israel militarily. The terrorist threat posed by Lebanese Hezbollah from within the fourth neighbor has been deterred from overt attacks since the war in 2006. Moreover, the Palestinian leader Mahmoud Abbas has renounced violence. Unrest in the West Bank has subsided significantly over the last few years,” Adm. Stavridis wrote.

Update: The Department of Defense responded to the Time Magazine story about AUSTERE CHALLENGE at a September 4 news briefing:

“Austere Challenge 12 is a bilateral ballistic missile defense exercise between the United States and Israel that provides important training for the defense of both nations. The exercise was originally scheduled for May. However, at the request of the Israeli Ministry of Defense and Israeli Defense Forces, the exercise was moved — was moved to late fall of this year. That decision was addressed by Secretary Panetta from this podium in January, as well as others, including me, in subsequent media briefings.”

“When the exercise was moved, the United States notified Israel that, due to concurrent operations, the United States would provide a smaller number of personnel than originally planned, and Israel reiterated its request to postpone the exercise until late fall. The fact of the matter is that this exercise remains the largest ever ballistic missile defense exercise between our nations and a significant increase from the previous exercise a few years ago. The exercise has not changed in scope and will include the same types of systems as planned. All deployed systems will be fully operational with their associated operators, including the missile interceptors.”

“As Minister of Defense Ehud Barak has repeatedly said, the U.S.-Israel defense relationship is stronger than it has ever been, and we couldn’t agree more. This exercise is a tangible sign of our mutual trust and our shared commitment to the defense of our two nations.”

“DoD security policy is fragmented, redundant, and inconsistent,” according to a new report from the Department of Defense Inspector General.  This is not a new development, the report noted, but one that has persisted despite decades of criticism.

There are at least 43 distinct DoD security policies “covering the functional areas of information security, industrial security, operations security, research and technology protection, personnel security, physical security, and special access programs,” the Inspector General report noted.

“The sheer volume of security policies that are not coordinated or integrated makes it difficult for those at the field level to ensure consistent and comprehensive policy implementation.”

The solution to this fragmentation and incoherence is the development of a comprehensive and integrated security policy, the IG report said.

Lacking an integrated framework and an “overarching security policy…, [the] resulting policy can be stove-piped, overlapping and contradictory.”

The issuance of such an overarching security policy, described as “the necessary first step,” is expected later this year.

See “Assessment of Security Within the Department of Defense — Security Policy,” DoD Inspector General report DoDIG-2012-114, July 27, 2012.

The classification guides that function as the framework for national security secrecy underwent a substantial overhaul during the past two years.  As a result of the Fundamental Classification Guidance Review, a large fraction of existing classification guidance has been eliminated, and at least some existing categories of classified information have been declassified.

Out of 3,103 classification guides, or compilations of classification instructions, that were reviewed by national security agencies, 869 were either cancelled or consolidated, the National Archives announced in a news release today.

The purpose of the Fundamental Classification Guidance Review, mandated by President Obama’s executive order 13526 (section 1.9), was “to ensure the guidance reflects current circumstances and to identify classified information that no longer requires protection and can be declassified.”

The newly revised guidance should provide increased clarity and specificity about what is to be classified, along with greater traceability in identifying the justification for classification.

But it is less clear that the Review will result in a diminished volume of classified information.

John Fitzpatrick, the director of the Information Security Oversight Office (ISOO), had asked agencies to address “how much information that was classified is no longer classified as a result of the Review.”

Despite his instruction, most agencies did not discuss this central issue in their reports to ISOO.  But a few of them did.

The Department of Homeland Security indicated that 157 previously classified subtopics “were determined to no longer require classification.”

The Central Intelligence Agency reported that “some previously classified information [is] now listed as ‘unclassified'” following the Fundamental Review.

“Several categories of telecommunications information previously classified will no longer be classified,” the State Department said in its report.

Although the Fundamental Review was supposed to incorporate the “broadest possible range of perspectives” (according to the 2010 ISOO implementing directive), most agencies did not consult persons outside their agency, and none of them provided for public input, as far as is known.  (By contrast, the Department of Energy’s 1995 Fundamental Classification Policy Review, which served as a prototype for the present Review, invited public comment at the beginning and the end of the process.)

It is a demonstrable fact that agencies left to their own devices will overclassify information or classify it unnecessarily.  Whenever outside review is permitted, even if it is just within the executive branch, agency classification decisions are regularly overturned, as the record of the Interagency Security Classification Appeals Panel consistently shows.

It follows that by limiting the scope of external review, and excluding public input altogether, the impact of the Fundamental Classification Guidance Review on curbing overclassification was more muted than it could have been.

In its efforts to improve responsiveness to the needs of its customers, the National Reconnaissance Office this year planned to “provide intelligence data to warfighters in the field using mobile devices.”  Evidently this capability had not been widely available up to now.

That’s one of the slivers of information to be found in the NRO budget justification for FY 2012 that was released this week — in heavily redacted form — in response to a Freedom of Information Act request.

The NRO is the U.S. intelligence agency that builds, launches and operates intelligence satellites.

“The NRO acquires and operates satellites that provide constant global access to critical information otherwise unavailable to the President, his cabinet, other national leaders and numerous customers in the Defense and Intelligence communities,” explains the FY2012 NRO Congressional Budget Justification Book, which NRO submitted to Congress in February 2011.  “These satellites provide services in three broad categories:  GEOINT [geospatial intelligence], SIGINT [signals intelligence], and Communications.”

“Over the past 50 years, data collected by NRO systems has provided advance warning of military aggression, supported combat operations, and assisted arms control treaty verification.  More recently, data from NRO systems has been used to verify environmental treaties, support humanitarian relief efforts, identify WMD programs, and locate terrorists.”

Setting aside the salesmanship and the rhetoric of “striving for excellence” that is the idiom of budget requests, and allowing for the fact that perhaps 90% of the 450 page budget document remains classified, it is still possible to glean at least fragmentary insight into the current state of the NRO from the newly released budget document.  For example:

•   The NRO workforce is aging.  “The number of experienced officers eligible or approaching eligibility for retirement is growing.  Of the current workforce, 53 percent are eligible or will become eligible to retire in the next 10 years.” (p. 10)
•   As in other agencies, unauthorized disclosures and the “insider threat” are a renewed focus of attention.  NRO security personnel “conduct daily CI [counterintelligence] activities to include auditing, monitoring, and analyses [against] the insider threat” (p. 268).  In FY 2012, NRO proposed to “expand automation of IT to provide analysis-enabling auditing and monitoring of user activity on classified computer systems to detect anomalous behavior” (p. 3).
•   NRO mission ground stations conduct “24 hour a day operations to continually apprise DoD, IC and National users of NRO systems’ status” while “maintaining awareness of and protection of NRO systems from environmental and manmade threats.”  The NRO ground stations provide “24 hour a day overhead SIGINT operations management capability on behalf of the IC” and are responsible for “allocating SIGINT satellite collection assets against intelligence targets in accordance with priorities and guidance established by the National SIGINT Collection Subcommittee” (p. 190).
•   In FY 2012, the NRO Mission Support project “expects … to accomplish the following:  provide intelligence data to warfighters in the field using mobile devices;  [and] enhance the detection and tracking of maritime vessels” (pp. 261-262).
•   The NRO security program anticipated that it would “complete 15,000 initial and periodic [security] clearance reviews” in FY 2012 (p. 267).
•   The NRO spectrum management program said it would “provide immediate, emergency support in response to real-world frequency interference issues in operational scenarios” (p. 271).

Unlike most other intelligence agencies — and unlike the Department of Defense as a whole — the NRO conducts its finances in a manner that is susceptible to external audit.

“For the third year in a row, the NRO received a clean audit opinion on our Financial Statements, a truly unprecedented accomplishment within the IC,” said Ms. Betty Sapp, the new NRO Director, in congressional testimony earlier this year.