The Director of National Intelligence issued a new directive that is intended to improve foreign language skills throughout the U.S. intelligence community.

“Foreign language capabilities are essential to the performance of intelligence missions and operations,” the May 2012 directive notes.

Foreign language competence for intelligence purposes extends well beyond mastery of a common vocabulary or the ability to translate a newspaper article.

“Foreign language capabilities include a broad range of language proficiency skills and other abilities, such as cultural awareness and understanding, regional expertise, skill in translation and interpretation, and knowledge of the scientific and technical vocabularies of critical foreign languages,” the directive says.

“This Directive establishes an integrated approach to develop, maintain, and improve foreign language capabilities across the Intelligence Community (IC).” See Intelligence Community Directive 630, “Intelligence Community Foreign Language Capability,” May 14, 2012.

Shortfalls in foreign language abilities are a recurring problem in U.S. intelligence agencies.

“U.S. intelligence efforts are complicated by unfilled requirements for foreign language expertise,” according to the Congressional Research Service.

“A major constraint on HUMINT collection is the availability of personnel trained in appropriate languages. Cold War efforts required a supply of linguists in a relatively finite set of foreign languages, but the intelligence community now needs experts in a wider range of more obscure languages and dialects,” wrote CRS specialist Richard A. Best, Jr. last year.

Questions of law and policy regarding unauthorized disclosures of classified information, whistleblower rights and the adequacy of oversight have been discussed lately in several law review articles, including these.

Whistleblowers and the Obama Presidency: The National Security Dilemma by Richard Moberly, Employee Rights and Employment Policy Journal, Volume 16, 2012

Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protection for Leakers of Classified Information by Heidi Kitrosser, Journal of National Security Law & Policy, 2012

Protecting Rights from Within? Inspectors General and National Security Oversight by Shirin Sinnar, Stanford Law Review, forthcoming

Updated below

Last month, former CIA officer John Kiriakou, who is accused of unlawfully disclosing classified information to two reporters, said in pre-trial motions that he had been wrongly and unfairly singled out for prosecution, particularly since he had criticized the U.S. practice of waterboarding.  (“Kiriakou Calls Leak Prosecution Selective, Vindictive,” Secrecy News, June 22).

This week, prosecutors unsurprisingly rejected such claims while affirming that they intend to vigorously pursue their case against Mr. Kiriakou.

“The genesis of this prosecution has nothing to do with waterboarding, the national conversation about its wrongness or rightness, the defendant’s opinions, or other public statements he may or may not have made,” the July 2 government response states.

The new government filing presents a series of legal arguments against the defense motions for dismissal, explaining why prosecutors believe the Intelligence Identities Protection Act and the Espionage Act statutes under which Mr. Kiriakou is charged are sufficiently clear and specific to be constitutional.  Beyond that, the new government response makes a couple of noteworthy points.

“The government does not intend to seek the testimony of either journalist to whom Kiriakou made the charged disclosures,” prosecutors wrote.  By refraining from subpoenaing the two unnamed reporters — believed to be Matthew Cole, formerly of ABC News, and Scott Shane of the New York Times — prosecutors will steer clear of the controversies and difficulties facing the prosecution of former CIA officer Jeffrey Sterling, which is currently suspended while the government appeals the right to subpoena New York Times reporter James Risen, to whom Sterling allegedly provided classified information.

Prosecutors also suggest at one point that their obligation to prove at trial that Mr. Kiriakou had specific “reason to believe” his alleged disclosures would damage national security would be satisfied by “the non-disclosure agreements signed by Kiriakou,” since those agreements include boilerplate language affirming that unauthorized disclosures could cause injury to the United States.  This approach seems calculated to enable prosecutors to overcome the otherwise daunting hurdle of demonstrating the defendant’s intent to harm the country.  It is unclear if it would be found legally satisfactory by the court or persuasive to a jury.

In a critical account of the Kiriakou case to date, Dan Froomkin wrote that “The bitterest irony of the case is that if Kiriakou had actually tortured, rather than talked about it, he almost certainly wouldn’t be in trouble.” See “Squelching Secrets: Why Are Obama’s Prosecutors Pursuing John Kiriakou?”, Huffington Post, July 4.

Update (7/19/12):  The defense reply to the government is here.

William Leonard, the former director of the Information Security Oversight Office, served as an expert witness for the defense in the misconceived prosecution of Thomas Drake, in which all felony charges against Mr. Drake were dismissed.  (Mr. Drake pleaded guilty to a misdemeanor count.)

Now Mr. Leonard is seeking permission from the trial judge in the Drake case to publicly disclose and discuss certain National Security Agency documents cited in the charges against Mr. Drake that he says were classified in violation of national policy.

“I believe the Government’s actions in the Drake case served to undermine the integrity of the classification system and as such, have placed information that genuinely requires protection in the interest of national security at increased risk,” Mr. Leonard wrote in a May affidavit seeking permission from Judge Richard D. Bennett to reveal the now-declassified (but still undisclosed) documents. Attorneys for Mr. Drake asked the court to release Mr. Leonard from the protective order that restricts disclosure of the documents, so that he could publicly pursue his criticism of their original classification by NSA.  See “Former Secrecy Czar Asks Court to Release NSA Document,” Secrecy News, May 23, 2012.

But government attorneys said that Mr. Leonard has no standing to request relief from the protective order that was imposed on the NSA documents.  They added that if he wants the documents to be publicly disclosed he should request them under the Freedom of Information Act.

“The problem with Leonard’s claim is that it relies not on injury to him, but instead on a general desire to complain to the press and the public,” the government said in a June 22 response to Mr. Leonard.  Instead of court-ordered release, “the proper alternative… is for Leonard to file a Freedom of Information Act (FOIA) request with the National Security Agency (NSA), which is prepared to act expeditiously upon the request.”

As it happens, I requested one of those documents under FOIA last year, and NSA has not acted on it expeditiously, or at all.

But the government said “The NSA has already prepared FOIA-approved versions of the documents at issue” which involve only minimal redactions.

“The government has no animus toward Leonard or his desire to express his opinion about the documents in question — only an interest in appropriately protecting the sensitive nature of the material and to prevent a flood of similar claims by non-parties in other completed cases,” the government response said.

See also “Complaint Seeks Punishment for Classification of Documents” by Scott Shane, New York Times, August 1, 2011.

The U.S. Air Force says its policy is to provide information to Congress as needed, but with preference given to members of the Armed Services Committees over other Committees, and to the Chairman and the Ranking Member of the Armed Services Committees over other members.

“Per OSD Policy, Congressional Member clearances are automatic once the Member is elected into their current position in the United States Senate or U.S. House of Representatives. Once a Member is elected as a seated member of Congress, the Member is automatically read into SCI [sensitive compartmented information] and any other classification needed,” a newly revised Air Force Instruction explains.

“Members of Congress assigned to the defense committees (and to the intelligence committees only for intelligence SAPs) are accessed to all DoD SAPs, except for a limited number of programs judged to be of extreme sensitivity, referred to as waived SAPs.”  SAPs stands for “special access programs” which are classified programs involving access controls that are more restrictive than for other classified information.  “Waived SAPs” are a subset of SAPs that are briefed to only a select group of congressmen.

“Members of Congress not assigned to the defense committees (and to the intelligence committees only for intelligence SAPs) will be granted access to DoD SAPs (non-waived SAPs only) with the concurrence of the DoD after consultation with the Chairman and Ranking Member of the defense committees.”

“Air Force officials may not disclose classified information to the Congress for release to a congressional constituent.”

Remarkably, Members of Congress who seek information for their own legislative purposes enjoy no special treatment from the Air Force, according to the Air Force.

“Requests from Members of Congress not seeking records on behalf of a Congressional Committee, Subcommittee, either House sitting as a whole, or made on behalf of their constituents shall be considered the same as any other requester.”  See “Air Force Relations With Congress,” Air Force Instruction 90-401, 14 June 2012.

Covert action was a particularly prominent feature of U.S. foreign policy during the Jimmy Carter Administration, according to a report last month from the State Department Historical Advisory Committee.  Covert action or other intelligence activities are said to figure in at least half of the volumes that will constitute the official record of the Carter Administration’s foreign affairs.

The Historical Advisory Committee reported to the Secretary of State on June 13 regarding progress (or lack thereof) in the production of the official Foreign Relations of the United States (FRUS), which is the documentary record of U.S. foreign policy.  Although there is a statutory requirement that FRUS be published no later than 30 years after the events it records, the series has never yet met that mandatory benchmark.

One of the obstacles to timely publication has been the need for a so-called High-Level Panel (HLP) composed of State, CIA and NSC officials to review documents related to covert action and other sensitive intelligence activities.  Since the early 1990s, “more than 40 covert intelligence activities have now been acknowledged for publication in the [FRUS] series,” the Committee report noted.  However, any FRUS volume requiring HLP review “will spend at least one additional year, and often many more than one, in the declassification pipeline.”

The Committee report said that the challenge to timely publication will only increase because “at least half of the Carter volumes will require resolution of HLP issues.”

In other words, of the 28 projected FRUS volumes for the Carter Administration, at least half involve covert action or other sensitive intelligence activities.

This “seems high,” a former State Department official told Secrecy News.  “Nowhere near half of the Nixon-Ford volumes had HLP [covert action] issues and it’s hard to believe there were more covert actions going on during the 4 years of Carter than during the 8 Nixon-Ford years.”

The largest single covert action at that time would have been in Afghanistan, particularly following the Soviet intervention in 1979, said intelligence historian John Prados.  He said there was also widespread intelligence involvement in “radio operations” around the globe, close observation of Cyprus, some focus on the PLO, some activity in South Yemen, and actions to counter the Cuban presence in various parts of Africa and Latin America.

Though some of this material is public knowledge, that will not necessarily expedite the task of publishing the FRUS series.

“The CIA… resolutely resists declassifying documents that entered the public domain through irregular channels,” the State Department Historical Advisory Committee said.

“These documents are widely known to scholars, and thus CIA’s policy presents a special challenge for the HO [State Department Historian’s Office] to publish [FRUS] volumes that meet the [statutory] standard of a ‘thorough, accurate, and reliable’ documentary record of United States foreign policy,” the Committee report said.

CIA’s self-perception of its disclosure practices is rather different and altogether more flattering than the despairing view held by non-Agency historians, FOIA requesters, and others who attempt to elicit information from the Agency.

“CIA, unlike any other agency in the Intelligence Community, much less Federal Government, makes discretionary releases of historically significant documents available to the public, journalists, and academicians in a purposefully organized manner,” the CIA stated in a March 2012 report from the CIA Chief FOIA Officer.

“CIA continues to inform record numbers of citizens, demonstrating our commitment to the Open Government Initiative and its three goals of transparency, participation, and collaboration,” the CIA report said.

At a time when “leaks” are said to be running rampant, the government is spending more money than ever before to protect classified information.  The estimated cost of securing classified information in government increased last year by at least 12% to a record high level of $11.36 billion.  An additional $1.2 billion was spent to protect classified information held by industry contractors.

These figures were reported to the President last week by the Information Security Oversight Office.  (More from Federal Times.)

The ISOO report breaks down the expenditures into six categories (personnel security, physical security, etc.).  But it does not provide any explanation for the rapidly escalating cost of secrecy.

One factor in the rising costs may be the continued growth of the secrecy system.  While some essential security costs are fixed and independent of classification activity, the failure to rein in classification and especially overclassification is a likely contributor to marginal cost growth.  The ISOO report itself provides a stark illustration of the overclassification problem when it notes that the classification costs of several intelligence agencies — CIA, DIA, ODNI, NGA, NRO and NSA — are excluded from the new report because they are classified.

“The cost estimates of these agencies are classified in accordance with Intelligence Community classification guidance and are included in a classified addendum to this report,” the ISOO report states.

But the classification of this information, which is almost certainly illegitimate, defies credulity for several reasons.

First, the secret intelligence cost numbers are estimates, not actual expenditures.  (“Requiring agencies to provide exact responses to the cost collection efforts would be cost prohibitive,” ISOO said.)  The potential intelligence value of such estimates to a hostile intelligence service is vanishingly small, particularly since their accuracy is variable and uncertain.

Second, the disclosure of the cost estimates for non-intelligence agencies, which has had no adverse effect on the security programs of those agencies, is a strong indication that no damage can result from release of such information.  If publication of the non-intelligence classification cost estimates had caused any kind of harm over the years, those estimates would not be published.  But of course they haven’t, and so they are.

Thus, one is led to conclude that the classification of the intelligence agency classification cost estimates is not threat-driven, but instead is “culture”-based.  The disclosure of the estimates would not cause identifiable damage to national security, which means this information has been classified in violation of executive order 13526.

Unfortunately, there seems to be no one to tell the DNI that his classification policies are mistaken.  Congress could perform critical oversight of classification policy, inquiring into the basis of particular classification decisions, but it almost never does so.  If anything, congressional leaders favor more aggressive and unforgiving enforcement of existing classification policies.  The Obama Administration’s Fundamental Classification Guidance Review was supposed to challenge the habits of reflexive classification, but in this case at least it has not had the desired effect.

If some rogue employee leaked a copy of the classification cost estimates for the intelligence agencies, he or she would be subject to new procedures announced by the Office of the Director of National Intelligence last week to combat unauthorized disclosures, including polygraph testing and inspector general investigations.

In the absence of leaks, the estimated cost of implementing the DNI’s new anti-leak procedures will be classified and unavailable to the public.

The anti-leak procedures announced last week by the Director of National Intelligence apply specifically to intelligence community employees.  But the DNI is also responsible more broadly for security policies that affect almost everyone who holds a security clearance for access to classified information, whether or not it pertains to intelligence, as well as other government employees who are candidates for “sensitive positions.”

The DNI’s role as “Security Executive Agent” was described in a March 2012 directive, according to which he is responsible for oversight of “investigations and determinations by any agency for eligibility for access to classified information and eligibility to hold a sensitive position.”

The DNI’s authority extends to every individual who has or seeks access to classified information with only a handful of exceptions:  the President, the Vice President, Members of Congress, Justices of the Supreme Court, and Federal judges appointed by the President.

In this capacity, the DNI is responsible for developing standardized procedures for security questionnaires, financial disclosure forms, polygraph policies and practices, and foreign travel and foreign contact reporting requirements.  See “Security Executive Agent Directive (SEAD) 1,” effective 13 March 2012.

“SEAD 1 applies to all departments and agencies performing investigations or adjudications of persons proposed for eligibility to hold a sensitive position whether or not requiring access to classified information,” said Charles B. Sowell of ODNI in congressional testimony last month.   “The ODNI also led the interagency efforts to revise the National Security Adjudicative Guidelines” — which are used to evaluate a person’s loyalty, reliability and trustworthiness — “which we expect to issue later this year,” he said.

Persistent questions about the U.S. intelligence community’s reliance on contractors to perform or support core mission functions were explored in a partially closed hearing of the Senate Homeland Security Committee last year.  A redacted transcript of the classified session of the hearing was included in a hearing volume which was recently published.

Among other things, “questions have been raised about whether some IC contracting firms hold undue influence within the IC because senior intelligence officials are often recruited from, and often return to, these firms,” according to a background paper prepared for the hearing (citing author Tim Shorrock) and included in the appendix to the PDF version of the new hearing volume.

“A ‘revolving door’ where employees move between public and private sector service increases the risk that decisions made by either contractor or government employees could be influenced by past professional relationships or potential future employment opportunities.”

“Some have also highlighted concerns about contractors who immediately return to their former IC agency [as private sector employees], but serve in the same capacity and at greater expense,” the background paper stated (citing reporting by Julie Tate of the Washington Post).

“In addition to clear conflicts of interest, the different incentives of corporations and their employees versus federal agencies and their employees create the need for robust oversight.  For example, the need to make corporate profits could create an incentive to provide analysis or decision support services in a manner that is likely to increase future business opportunities.”

“Additionally, because contract employees owe a duty of loyalty to their employers rather than the U.S. government, they may have incentives to act in the interest of their employers rather than in the interests of the government where those interests differ,” the background paper said.

At first glance, the questions seemed more interesting than the answers that intelligence community officials were able to provide at the hearing, but it was remarkable to see those questions raised at all.  The hearing was held not by the Senate Intelligence Committee, but by a subcommittee of the Senate Homeland Security and Governmental Affairs Committee chaired by retiring Senator Daniel Akaka (D-HI).

See “Intelligence Community Contractors: Are We Striking the Right Balance,” September 20, 2011.

Some members of Congress are having second thoughts about the future use of unmanned aerial systems in U.S. airspace, judging from a colloquy on the House floor last week.

When Congress passed the FAA reauthorization bill, recalled Rep. Michael Burgess (R-TX), it included “this very simple language allowing for the expansion of unmanned aerial vehicles in the national airspace.”

“None of us really thought that was much of a problem, but our constituents are bringing it back to us,” Rep. Burgess said. “They are concerned about privacy, and they’re concerned about Federal agencies surveilling normal activities of commerce in which people may be engaged.”

Looking beyond privacy concerns, Rep. Burgess proposed an amendment to the Transportation Appropriations bill that would prohibit the use of armed drones within the United States.

“If these drones are weaponized, you can–if you’ve been surveilled unfairly, you can go to court and perhaps seek a remedy. But if a bullet is fired from one of these platforms, you don’t have any remedy if you’re the recipient of that bullet,” he said.

“The amendment that I offer today is preemptive. As to my knowledge, no actual applications have been filed with the FAA to use armed drones in U.S. airspace. But I believe it is necessary, as there has been some discussion in the public media about the ability to arm unmanned aerial vehicles. I personally believe this is a road down which we should not travel,” Rep. Burgess said.

However, the amendment was rejected for procedural reasons.

Similar legislation sponsored by Rep. Rush Holt (D-NJ) was approved last month as an amendment to the pending Homeland Security Appropriations bill.

Former CIA officer John Kiriakou, who is charged with unauthorized disclosure of a covert officer’s identity and other classified information, says that the case against him is driven by government animosity, and that he is a target of selective prosecution.

“When White House aides leaked stories about the heroes who killed Osama Bin Laden, they were not prosecuted.  When the Washington Post was granted access to the covert director of the CTC for a profile of those directing America’s ‘war on terror,’ no one was prosecuted,” his attorneys wrote in a newly disclosed motion for dismissal.

“But when John Kiriakou gave an interview where he admitted the United States used waterboarding and when he further opined that waterboarding was ineffective, the government went after him,” the motion stated.

“The United States has improperly selected him for prosecution based on his exercise of his constitutional rights and on the animus the United States holds toward him” while “the government has tolerated other disclosures because they resulted in press favorable to the government.”

A copy of the June 12 defense motion was cleared for public release yesterday.

In a separate motion for dismissal, Mr. Kiriakou’s attorneys challenged the constitutionality of the statutes under which he is being prosecuted, including the Intelligence Identities Protection Act and section 793(d) of the Espionage Act, which they argued are “unconstitutionally vague and overbroad.”

Furthermore, because overclassification is rampant, they said, the classification status of any particular information is not a reliable index of its sensitivity.

“The government’s acknowledged practice of over-classification means that not all classified information actually has the potential to damage national security if released….  The fact that information is classified does not actually clarify whether its disclosure… could cause any injury to the United States.”

A government response to the defense motions is due by July 2.

A bill “to provide safe, fair, and responsible procedures and standards for resolving claims of state secrets privilege” was introduced in the House of Representatives this week by Rep. Jerrold Nadler and several Democratic colleagues.

Essentially, the bill (HR 5956) would require courts to render an independent assessment of the validity of a government assertion of the state secrets privilege, rather than simply deferring to the claim.  When the privilege is properly asserted, courts would be required to consider the feasibility of introducing non-privileged substitutes for privileged evidence.

Such measures would make it more likely that cases could proceed to adjudication even when discrete pieces of evidence are found to be privileged.

“The ongoing argument that the state secrets privilege requires the outright dismissal of a case is a disconcerting trend in the protection of civil liberties for our nation,” said Rep. Nadler in a news release.  “This important bill recognizes that protecting sensitive information is an important responsibility for any administration and requires that courts protect legitimate state secrets while preventing the premature and sweeping dismissal of entire cases.  The right to have one’s day in court is fundamental to protecting basic civil liberties and it must not be sacrificed to overbroad claims of secrecy.”