The Obama Administration is urging Congress to renew provisions of the Foreign Intelligence Surveillance Act (FISA) Amendments Act that are set to expire at the end of this year.

“Reauthorizing this authority is the top legislative priority of the Intelligence Community,” wrote Director of National Intelligence James Clapper and Attorney General Eric Holder in a February 8 letter to Congress.

One of the key provisions, they explained, would permit the electronic surveillance of entire categories of non-U.S. persons who are located abroad “without the need for a court order for each individual target.”

Under this provision, “instead of issuing individual court orders, the FISC [Foreign Intelligence Surveillance Court] approves annual certifications submitted by the Attorney General and the DNI that identify categories of foreign intelligence targets.”

“The provision contains a number of important protections for U.S. persons and others in the United States,” according to a background paper attached to the February 8 letter, including limitations on targeting, minimization procedures to exclude information about U.S. persons, and other guidelines on acquisition.

“Failure to reauthorize [this section] would result in a loss of significant intelligence and impede the ability of the Intelligence Community to respond quickly to new threats and intelligence opportunities,” the background paper stated.

Proposed legislative language to enact an extension of Title VII of the FISA Amendments Act was transmitted to Congress by the DNI in a March 26 letter.

The American Civil Liberties Union disputes the adequacy of the FISA Amendment Act’s protections for U.S. persons and is challenging the constitutionality of the Act in a lawsuit that is pending before the U.S. Supreme Court.  The ACLU is also asking Congress to “Fix FISA by prohibiting dragnet surveillance, mandating more transparency about the government’s surveillance activities, and strengthening safeguards for privacy.”

In 2011, the US Government submitted 1,745 applications to the Foreign Intelligence Surveillance Court for authorization to conduct electronic surveillance or physical searches under the Foreign Intelligence Surveillance Act (FISA), according to a new annual report to Congress. Of these, 1,676 included requests for authority for perform electronic surveillance, the report said.

That compares to 1,579 such applications in 2010 (including 1,511 for electronic surveillance).

As is usually the case, the FIS Court did not deny any electronic surveillance applications in whole or in part last year, though it made modifications to 30 of them.

The new report says that the government filed 205 applications for business records (including “tangible things”) for foreign intelligence purposes last year, compared to 96 in the previous year.

But the number of “national security letters” (a type of administrative subpoena) declined last year. In 2011, the FBI requested 16,511 national security letters pertaining to 7,201 U.S. persons, the new report said, compared to the 2010 total of 24,287 letter requests concerning 14,212 U.S. persons.

More than a thousand boxes of classified government records are believed to be missing from the Washington National Records Center (WNRC) of the National Archives and Records Administration (NARA), a three-year Inspector General investigation found.

But there are no indications of theft or espionage, an official said.

An inventory of the holdings at the Records Center determined that 81 boxes containing Top Secret information or Restricted Data (nuclear weapons information) were missing.  As of March 2011, an additional 1,540 boxes of material classified at the Secret or Confidential level also could not be located or accounted for, the Inspector General report on the matter said.  Each box can hold approximately 1.1 cubic feet or 2000 to 2500 sheets of paper.

The missing records “represent an ongoing failure at WNRC to protect some of the most sensitive information produced by the Federal Government,” wrote NARA Inspector General Paul Brachfeld in a 2009 letter to the Acting Archivist.

The IG report on the matter implied that it could constitute a violation of the Espionage Act, citing “alleged violations” of the espionage statues including prohibitions on “gathering, transmitting or losing defense information” (section 793), “disclosure of classified information” (section 798), and “unauthorized removal and retention of classified documents or material” (section 1924).

The results of the Inspector General investigation were first reported today in “Secret files missing at National Archives” by Jim McElhatton, The Washington Times, May 2.

The 2011 Inspector General report of investigation, released under the Freedom of Information Act, may be found here.

The missing records originated in the Office of the Secretary of Defense, the Army, the Navy, the Department of Energy, and other agencies.

The Inspector General report said that “At some point, the originating agency will have to make a determination on the effect the missing materials (from the missing 81 boxes) have on national security.”

In the meantime, “the Federal Bureau of Investigation has been notified of the missing classified materials per Department of Justice requirements.”

The problem of wayward official records, both classifed and unclassified, is not a new one. “In 1998 and 2004, WNRC conducted inventories of its classified holdings,” the Inspector General noted. “Both inventories revealed missing classified records.”

But more precisely, the inventories revealed discrepancies between the agency catalogs and the records on the shelf.  It is not entirely certain that any records have actually left official custody.  Today’s archival catalogs are pre-populated with the contents of a legacy hardcopy card catalog system that dates back many decades and that is inherently prone to error.

While poor records management practices are always problematic, there are several factors that would tend to mitigate the significance of the problem.

Many of the purportedly missing records are more than fifty years old, including one collection of pre-WWII records on “hydraulics.”  Almost all the records are more than 25 years old, and should have been declassified long ago.  The Washington National Records Center is not cleared for compartmented (SCI) intelligence records, and no such records are thought to be missing.

An Army field manual published last week explains the Army’s conduct of information collection activities in military operations.

“In this manual, the term ‘information collection’ is introduced as the Army’s replacement for ‘intelligence, surveillance, and reconnaissance’ (also known as ISR),” the manual says.

“This publication clarifies how the Army plans, prepares, and executes information collection activities within or between echelons.”

“As the Army fields new formations and equipment with inherent and organic information collection capabilities, it needs a doctrinal foundation to ensure their proper integration and use to maximize their capabilities.”

See Information Collection, U.S. Army Field Manual (FM) 3-55, April 23, 2012.

Government attorneys said yesterday that they would appeal an extraordinary judicial ruling that required the release of a classified document in response to a Freedom of Information Act request.

The document in question is a one-page position paper produced by the U.S. Trade Representative (USTR) concerning the U.S. negotiating position in free trade negotiations.  It was classified Confidential and was not supposed to be disclosed before 2013.

But immediate disclosure of the document could not plausibly cause damage to the national security, said DC District Judge Richard W. Roberts in a February 29, 2012 opinion, and so its continued classification, he said, is not “logical.”  He ordered the government to release the document to the Center for International Environmental Law, which had requested it under FOIA.  (Court Says Agency Classification Decision is Not ‘Logical’, Secrecy News, March 2, 2012.)

This kind of independent review of the validity of classification decisions, which is something that judges normally refrain from doing, offers one way to curb galloping overclassification.

While the substance of the USTR document is likely to be of little general interest, the court’s willingness to disregard the document’s ill-founded classification and to require its disclosure seems like a dream come true to critics of classification policy.  If the decision serves as a precedent and a spur to a more broadly skeptical judicial approach to classification matters, so much the better.

But what may be a dream to some is a nightmare to others.  The bare possibility of such an emerging challenge to executive classification authority was evidently intolerable to the Obama Administration, which will now seek to overturn Judge Roberts’ ruling in the DC Circuit Court of Appeals.

In response to congressional direction, the U.S. Patent and Trademark Office is considering whether to expand the scope of patent secrecy orders — which prohibit the publication of affected patent applications — in order to enhance “economic security” and to protect newly developed inventions against exploitation by foreign competitors.

Currently, patent secrecy orders are applied only to patent applications whose disclosure could be “detrimental to national security” as prescribed by the Invention Secrecy Act of 1951.  At the end of Fiscal Year 2011, there were 5,241 such national security secrecy orders in effect.

But now the Patent Office is weighing the possibility of expanding national security patent secrecy into the “economic security” domain.

“The U.S. Patent and Trademark Office is seeking comments as to whether the United States should identify and bar from publication and issuance certain patent applications as detrimental to the nation’s economic security,” according to a notice that was published in the Federal Register on April 20.

That would be a mistake, I wrote in my own comments submitted to the Patent Office yesterday.

Economic security — which could conceivably implicate all new inventions — is not analogous to the more limited domain of national security-related inventions, “so the use of secrecy orders is inappropriate to protect economic security,” I suggested.

Instead, the existing option for an applicant to request nonpublication of his or her patent application up to the point that the patent is issued is a superior alternative to a mandatory secrecy order, I wrote.  “The inventor is likely to be better qualified than any third party to assess the economic significance of the invention, and is also likely to be best motivated to protect his or her own financial interests.”

“The USPTO has not taken a position” on these questions, the Patent Office said in its April 20 notice, “nor is it predisposed to any particular views.”

The Senate Intelligence Committee has been reviewing the post-9/11 detention and interrogation practices of the Central Intelligence Agency for four years and is still not finished.  But the end appears to be in sight.

“The review itself is nearing completion — before the end of summer — but is not over yet,” a spokesperson for the Committee said.  “The release date should be not too far thereafter, but is not set.”

“This review is the only comprehensive in-depth look at the facts and documents pertaining to the creation, management, and effectiveness of the CIA detention and interrogation program,” according to Sen. Jay Rockefeller, who was chairman of the Intelligence Committee when the review began in 2008.

Committee staff are said to have reviewed millions of pages of classified documents pertaining to the CIA program.

In newly published questions for the record following his confirmation hearing last year to be Director of the CIA, Gen. David Petraeus was asked by Senator Rockefeller if he would cooperate with the Committee review.

“I believe that a holistic and comprehensive review of the United States Government’s detention and interrogation programs can lead to valuable lessons that might inform future policies,” Petraeus replied.

“The best way to gain a common set of facts would be to reach out to the intelligence and military communities responsible for detentions and interrogations and for implementing future policies,” he added.  “[T]o gain the proper insights from a series of actions or decisions, we cannot separate the review process from the public servants undertaking the actions,” he said.

Gen. Petraeus also responded to questions concerning interrogation in the “ticking time bomb” scenario (he says “research is required now”), and the applicability of official U.S. government statements on the use of drones to CIA operations (which he declined to confirm), among other topics.

His responses to these questions were published earlier this month in the record of his June 23, 2011 confirmation hearing.

Sen. Dianne Feinstein, the current chair of the Senate Intelligence Committee, provided a preview of the Committee’s findings on CIA interrogation practices in a November 29, 2011 floor statement during the debate on the FY2012 defense authorization act (also noted by Jeffrey Kaye in The Public Record).

“As chairman of the Select Committee on Intelligence, I can say that we are nearing the completion a comprehensive review of the CIA’s former interrogation and detention program, and I can assure the Senate and the Nation that coercive and abusive treatment of detainees in U.S. custody was far more systematic and widespread than we thought,” Sen. Feinstein said.

“Moreover, the abuse stemmed not from the isolated acts of a few bad apples but from fact that the line was blurred between what is permissible and impermissible conduct, putting U.S. personnel in an untenable position with their superiors and the law.”

Government attorneys yesterday asked a court for an extension of time to respond to two Freedom of Information Act lawsuits seeking disclosure of records pertaining to “alleged targeted lethal operations” conducted by the Central Intelligence Agency, including the killing of Anwar al-Awlaki.

The attorneys’ request seems to portend a possible change in the government’s persistent refusal to acknowledge the widely reported fact of the CIA’s use of drones in targeted killing operations.

“Attorney General Eric H. Holder, Jr. has personally directed us to seek this additional time to allow the Government to finalize its position with regard to the sensitive national security matters presented in this case,” the Justice Department attorneys told the judge.

“Given the significance of the matters presented in this case, the Government’s position is being deliberated at the highest level of the Executive Branch.”

At issue are two FOIA lawsuits brought by the New York Times and the American Civil Liberties Union.  The request for an extension until May 21, 2012 was granted by Judge Colleen McMahon.

Meanwhile, the Justice Department has just released its 2011 report on FOIA litigation and compliance.  Among other things, the report notes that the so-called “Glomar” response — by which an agency refuses to confirm or deny the existence of responsive records — was invoked by the government in three cases that were decided in 2011.  In each of those cases, the court ruled in favor of the government.

At a pre-trial hearing this week in the case of Pfc. Bradley Manning, who is suspected of releasing classified records to WikiLeaks without authorization, a military judge will consider several motions filed by Manning’s defense that seek to reduce the charges against him, or to have them dismissed altogether.

The defense motions, filed by attorney David E. Coombs and made available on his blog with some redactions, assert a range of objections including these:

*  The government has so egregiously failed to fulfill its discovery obligations — i.e. its duty disclose exculpatory and other “Brady” information to the defense — that the whole case must be dismissed.  “The Government’s abdication of its basic discovery responsibilities is unconscionable and irreparably prejudicial, mandating that all charges should be dismissed with prejudice,” Mr. Coombs contended.

*  The government has specifically failed to provide defense access to the computers in the secure area where Manning worked, which might enable it to rebut charges that Manning had uploaded unauthorized software on to his system.  “The Defense’s tentative theory is that all or most soldiers in the SCIF had unauthorized software on their computers (e.g. M-IRC Chat, Google Earth, Wget, movies, music, games, etc.)… The Defense intends to show that the practice of adding ‘unauthorized’ software was so pervasive that, in effect, all ‘unauthorized’ programs were implicitly or explicitly authorized.”

*  The government has improperly multiplied the charges against Manning by treating single violations as multiple offenses.  “This creative drafting by the Government drastically exaggerates PFC Manning’s criminality and unreasonably increases his punitive exposure,” Mr. Coombs wrote.

Perhaps the most penetrating challenge presented by the defense is a motion to dismiss the charge of “aiding the enemy” (Article 104) because, the defense says, there is no evidence that Manning intended to assist an enemy of the United States, and such an intent is a required element of the charge.

“Every court interpreting Article 104(2) has held that the Government must prove general criminal intent to give intelligence to, or communicate with, the enemy;  indeed, no prosecution under this Article has ever been maintained without some allegation of mens rea [i.e. criminal intent]…. mere dissemination of information to persons unauthorized to receive it is insufficient without the necessary criminal intent.”

But, Mr. Coombs wrote, “The Government has not alleged that PFC Manning intended to give intelligence to, or communicate with, the enemy in making the alleged disclosure to WikiLeaks.  Rather, the Government has merely alleged that PFC Manning had knowledge that the information, if ultimately published, might be accessible to the enemy and that such information might help the enemy.  Such a feeble mens rea allegation is patently insufficient to establish the requisite intent under Article 104.”  (He added that “The amount of conduct that is made subject to potential capital punishment under such an interpretation is staggering… The potential for liability is endless.”)

To the contrary, Mr. Coombs argued, “PFC Manning expressly disclaimed any intent to help any enemy of the United States” in the chat logs in which he discussed his actions.  “Far from intending to aid any enemy of the United States, PFC Manning’s actions and statements illustrate a conscious rejection of any such ill motive.”

Prosecutors have declined to make their responses to Mr. Coombs’ motions available to the public, so their positions are not known in any detail.

Mr. Coombs said that both sides are in agreement, however, that the Manning case “is one of the largest and most complex cases in United States military history.”

The pre-trial hearing, known formally as an Article 39(a) hearing, will be held April 24-26 at Fort Meade, Maryland.

As is often remarked, the number of individuals charged with Espionage Act violations by the Obama Administration for disclosing information to the media without authorization is unprecedented and exceeds all previous cases in all prior Administrations combined.  But why is that?

There are several possible explanations.  One answer is that the sources of unauthorized disclosures are easier than ever to identify.  The actual disclosure transaction, as well as the source-reporter relationship behind it, often leaves an electronic footprint (especially email and telephone records) that official investigators are increasingly adept at exploiting.  Another explanation is that the voluminous and sometimes reckless disclosures published by WikiLeaks triggered a predictable intensification of efforts to track and punish leakers, along with the broader tightening of information security that seems to be the most enduring legacy of the WikiLeaks episode.

But yet another factor that is usually overlooked is that Congress has pressured the Administration to vigorously pursue leaks.  Congressional leaders want leak prosecutions, and they want a lot of them.

At her May 17, 2011 confirmation hearing to be head of the Justice Department’s National Security Division (NSD), Lisa O. Monaco noted the role of the Senate Intelligence Committee in pushing the issue.  “This Committee has… pressed the [Justice] Department and the intelligence community… to ensure that unauthorized disclosures are prosecuted and pursued, either by criminal means or the use of administrative sanctions,” she said.

After Ms. Monaco described each of the multiple pending leak prosecutions that were pending at that time, she was nevertheless asked (in pre-hearing questions) “Are there any steps that the Department could take to increase the number of individuals who are prosecuted for making unauthorized disclosures of classified information to members of the news media?”

Ms. Monaco told the Intelligence Committee that “the NSD has been working closely with the Intelligence Community to expedite and improve the handling of such cases.”  She pledged to the Committee that it would be “my priority to continue the aggressive pursuit of these cases.”   And so it has been.

The record of Ms. Monaco’s 2011 confirmation hearing before the Senate Intelligence Committee was published last month and is available here.

Following years of controversy, the Government Accountability Office this week released an unclassified version of its long-awaited report on FBI Counterterrorism.

The report itself comes as an anti-climax, but it is the first GAO report involving intelligence-related matters to be completed since the issuance of an intelligence community directive last summer which authorized GAO to gain access to certain intelligence agency information.  As such, it may herald a growing role for GAO in intelligence oversight.

Given the FBI’s and the Justice Department’s stubborn resistance to this GAO review, which was suspended for two years as a result, one might have expected the resulting report to address matters of the greatest significance and sensitivity — perhaps dealing with infiltration of mosques, allegations of entrapment, unauthorized domestic surveillance, or something along those lines.

Instead, however, the new report is about as mundane as it could be.  It examines the FBI’s progress in filling vacancies in its counterterrorism division — which is part of the intelligence community — and concludes that the Bureau has indeed made reasonable progress in doing so.  Fine.  (The classified version of the report contains specific personnel numbers which have been withheld in the unclassified version because the FBI considered them sensitive.)  See FBI Counterterrorism: Vacancies Have Declined, but FBI Has Not Assessed the Long-Term Sustainability of Its Strategy for Addressing Vacancies, Report No. GAO-12-533, April 2012.

Even within the narrow context of human capital, the GAO report does not inquire whether the FBI’s mission performance has been adversely affected by the number of vacancies in its ranks, or whether in fact those vacant positions might be superfluous.

That might be an interesting line of inquiry, but GAO can only pursue the questions that Congress asks it to pursue, said David C. Maurer of GAO, and Congress didn’t ask that question.

While the substance of the new GAO report is of ephemeral interest, the report may nevertheless have long-term significance as a catalyst for, and a portent of, greater GAO involvement in intelligence oversight.  If nothing else, the multi-year controversy over this report prompted the issuance last year of Intelligence Community Directive 114 that made its completion possible.

“I hope it’s an indication that the door is open to a continuing role for GAO on intelligence matters,” said Mr. Maurer said of the new report, while acknowledging that it is still only “a data point of one.”

The difficulty that the military has in allocating the efficient use of the electromagnetic spectrum for military operations is aggravated by the fact that some of those uses — involving intelligence platforms and sensors — are secret even from military planners themselves, a new Pentagon doctrinal publication notes.

“Coordination with intelligence units and agencies can be challenging for many reasons, to include classification issues, disparate data formats, and separate technical control or reporting channels,” the publication states.

“In many cases, the JSME [joint spectrum management element] does not have adequate visibility or knowledge of intelligence sensors, platforms, or systems in order to accomplish accurate deconfliction.”

“In order to capture all aspects of intelligence spectrum use, the JSME must understand that intelligence platforms such as UAS/unmanned ground system will have spectrum requirements for both a payload (e.g., imagery or data) and control frequencies to operate the platform.”

“Intelligence is a heavy user of sensors that employ both active and passive techniques. Active sensors are usually accounted for, but the passive sensors will also require spectrum consideration so they perform properly.”

See Joint Electromagnetic Spectrum Management Operations, Joint Publication 6-01, Joint Chiefs of Staff, March 20, 2012 (at page V-12).