The U.S. government acknowledges that U.S. military forces were involved in “armed conflict” this year in Libya, but it does not acknowledge that they were engaged in “hostilities.”

Earlier this year, State Department legal advisor Harold H. Koh attempted to parse these distinctions, which have significant legal consequences, and to deflect some pointed questions from members of the Senate Foreign Relations Committee.  His responses to Senators’ questions for the record (pdf) from a June 28 Committee hearing were published last month.  The full hearing volume is here (pdf).

Congress has given the U.S. military a green light to conduct offensive military activities in cyberspace.

“Congress affirms that the Department of Defense has the capability, and upon direction by the President may conduct offensive operations in cyberspace to defend our Nation, allies and interests,” said the FY 2012 defense authorization act that was adopted in conference this week (section 954).

The blanket authorization for offensive cyber operations is conditional on compliance with the law of armed conflict, and the War Powers Resolution, which mandated congressional consultation in decisions to go to war.

“The conferees recognize that because of the evolving nature of cyber warfare, there is a lack of historical precedent for what constitutes traditional military activities in relation to cyber operations and that it is necessary to affirm that such operations may be conducted pursuant to the same policy, principles, and legal regimes that pertain to kinetic capabilities,” the conference report on the defense authorization act said.

“The conferees also recognize that in certain instances, the most effective way to deal with threats and protect U.S. and coalition forces is to undertake offensive military cyber activities, including where the role of the United States Government is not apparent or to be acknowledged.”

“The conferees stress that, as with any use of force, the War Powers Resolution may apply.”

This is an odd formulation which suggests that the War Powers Resolution may also not apply.  In any case, the Resolution is a weak reed that has rarely been used by Congress to constrain executive action.

According to the Congressional Research Service, “Debate continues on whether using the War Powers Resolution is effective as a means of assuring congressional participation in decisions that might get the United States involved in a significant military conflict.”

Update: There’s more from Wired Threat Level and Lawfare.

Congress ordered the Secretary of Defense to establish an information security program for detecting “unauthorized access to, use of, or transmission of classified or controlled unclassified information.”  The provision was included by the FY2012 defense authorization act that was approved in conference this week (section 922).

The insider threat detection program, conceived as a response to WikiLeaks, is intended to “allow for centralized monitoring and detection of unauthorized activities.”  Among other things, it is supposed to employ technology solutions “to prevent the unauthorized export of information from a network or to render such information unusable in the event of the unauthorized export of such information.”

The Congressional action was partially anticipated by President Obama’s executive order 13587 of October 7, 2011, which established new governance procedures for improving the security of classified information.

The new legislation adds some further detail and imposes deadlines for compliance.

In an abrupt reversal, the Central Intelligence Agency said that it will process a Freedom of Information Act request for documents pertaining to the establishment of Open Source Works, the CIA’s in-house open source intelligence organization.

Intelligence historian Jeffrey Richelson had requested the charter of Open Source Works under the Freedom of Information Act, only to be told that the CIA could not confirm or deny the existence (or non-existence) of responsive records.  See “Charter of Open Source Org is Classified, CIA Says,” Secrecy News, December 12.

But Dr. Richelson said that CIA Information and Privacy Coordinator Susan Viscuso called him yesterday to inform him that the request would be processed after all.  The earlier response, she said, was “an administrative error.”

The amount of money that the Pentagon requested for the Military Intelligence Program (MIP) in FY2012 — around $25 billion — is classified and will not be disclosed, the Department of Defense said last week in response to a Freedom of Information Act request for the figure.

The MIP budget request number “is currently and properly classified in accordance with Executive Order 13526 Section 1.4(g) concerning vulnerabilities or capability of systems, installations, infrastructures, projects, plans or protection services relating to the national security,” the December 7 denial letter stated.

The decision to withhold the MIP budget request number is incongruous, considering that the MIP appropriation is unclassified ($24 billion in FY2011).

Not only that, but the amount of money that was requested for the National Intelligence Program (NIP) is unclassified and has been released by the Director of National Intelligence ($55 billion for FY2012).

“No identifiable damage to national security was caused by the release of the NIP budget request figure,” we noted yesterday in an appeal of the initial FOIA denial.

“From a classification policy perspective, there is no substantive difference between the NIP and the MIP.  Each Program involves intelligence sources and methods requiring protection, classified acquisition programs, and other sensitive and properly classified activities.”

“Just as disclosure of the NIP budget request caused no damage to national security, it is clear that disclosure of the MIP budget request would be likewise harmless,” we wrote in the December 13 appeal.

Like other questionable classification choices, the decision to classify the MIP budget request is ripe for reconsideration and correction in the ongoing Fundamental Classification Guidance Review.

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Open Source Works, which is the CIA’s in-house open source analysis component, is devoted to intelligence analysis of unclassified, open source information.  Oddly, however, the directive that established Open Source Works is classified, as is the charter of the organization.  In fact, CIA says the very existence of any such records is a classified fact.

“The CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request,” wrote Susan Viscuso, CIA Information and Privacy Coordinator, in a November 29 response to a Freedom of Information Act request from Jeffrey Richelson of the National Security Archive for the Open Source Works directive and charter.

“The fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure,” Dr. Viscuso wrote.

This is a surprising development since Open Source Works — by definition — does not engage in clandestine collection of intelligence.  Rather, it performs analysis based on unclassified, open source materials.

Thus, according to a November 2010 CIA report, Open Source Works “was charged by the [CIA] Director for Intelligence with drawing on language-trained analysts to mine open-source information for new or alternative insights on intelligence issues. Open Source Works’ products, based only on open source information, do not represent the coordinated views of the Central Intelligence Agency.”

As such, there is no basis for treating Open Source Works as a covert, unacknowledged intelligence organization.  It isn’t one.

(Even if Open Source Works were engaged in classified intelligence analysis, the idea that its charter must necessarily be classified is a non-sequitur.  Illustrating the contrary proposition, the Department of Defense last week issued a new Instruction on “Geospatial Intelligence (GEOINT),” setting forth the policies governing that largely classified intelligence domain.)

Beyond that, it is an interesting question “why the CIA felt the need to establish such a unit given the existence of the DNI Open Source Center,” said Dr. Richelson.  The Open Source Center, the successor to the Foreign Broadcast Information Service, is the U.S. Government’s principal open source agency.  It is, naturally, a publicly acknowledged organization.

“An even more interesting question,” he added, is “why would the CIA, whose DI [Directorate of Intelligence] organization structure is published on its website, feel it necessary to refuse to confirm or deny the existence of this new open source component?”

The CIA’s extreme approach to classification policy is timely in one sense:  It provides a convenient benchmark for evaluating current progress in combating overclassification.

If the charter of CIA’s Open Source Works remains classified six months from now, when the Obama Administration’s Fundamental Classification Guidance Review will have completed its first cycle, that will be a decisive indication that the Review failed to eliminate even the most blatant examples of overclassification.

Update: On December 13, the CIA informed Dr. Richelson that its response to his FOIA request was “an administrative error,” and that the request would be processed.

The U.S. State Department insists that the publication of many thousands of classified diplomatic cables by WikiLeaks does not alter their classification status.  In response to a Freedom of Information Act lawsuit filed by the American Civil Liberties Union for 23 of the cables, the Department of State this week released redacted versions of 11 of them and withheld the other 12 in their entirety — even though the full text of all of them is readily available online.

In principle, the question of whether unauthorized disclosure of classified information is tantamount to declassification of that information is not new, although the WikiLeaks case presents it with new force.  The government has always contended, and courts have generally accepted, that unauthorized or unofficial disclosure does not imply or require declassification.

The “official acknowledgment by an authoritative source” of information that is already in the public domain adds a quantum of validity and may itself constitute “new information that could cause damage to the national security” the DC Circuit Court said in Afshar v. Department of State (1983).

Similarly, “there can be a critical difference between official and unofficial disclosures” in the “arena of intelligence and foreign relations,” the DC Circuit said in Fitzgibbon v. CIA (1990).

The Fitzgibbon ruling set forth three conditions that must be met in order for a prior disclosure to overcome a government claim of proper classification and to justify release:   (1) the information requested must be as specific as the information previously released;  (2) the information requested must match the information previously released;  and (3) the information requested must have been previously made public through an official and documented disclosure, i.e. not “leaked.”

Within the FOIA context, this restrictive construct all but shuts the door to an argument that prior public disclosures justify a mandatory release of classified information that has been withheld.  It seems designed to prevent new disclosures, not to enable them.  Without having researched the question in depth, I believe I may be the only FOIA litigant ever to use the Fitzgibbon criteria to compel an agency to disclose information that it wished to withhold.  And even then, I only received what I had already obtained independently.  See “Judge Orders CIA to Disclose 1963 Budget,” Secrecy News, April 5, 2005.

The WikiLeaks disclosures, however, represent a qualitatively new factual scenario because they involve not merely the release of “information” but of actual documents, whose authenticity is not in doubt.

Thus, a Zimbabwe political figure said last week that the Zimbabwe officials who were named in the WikiLeaks cables are like “lice” who will be dealt with at an appropriate time.  (“We will deal with ‘WikiLeaks lice’ appropriately – Sibanda,” Newsday [Harare], November 29, 2011.)  These ominous remarks took for granted that the cables are authentic.  Formal confirmation of their authenticity from the U.S. government at this point could hardly aggravate the situation and would be considered superfluous.

Interestingly, the law does admit the possibility — at least outside of the FOIA context — of an unofficial disclosure that is so widespread that any official acknowledgment becomes redundant and moot.

“One may imagine situations in which information has been so widely circulated and is so generally believed to be true, that confirmation by one in a position to know would add nothing to its weight,” the Fourth Circuit wrote in Alfred A. Knopf Inc. v. William Colby (1975).

But the court did not articulate specific criteria for determining when such imaginary situations had become a reality.  And it said that “appraisals of such situations by the judiciary would present a host of problems and obstacles.”

Director of National Intelligence James Clapper has issued a new Intelligence Community Directive on “Congressional Notification” (pdf) that generally encourages “a presumption of notification” to Congress regarding significant intelligence activities.

The November 16 directive, designated ICD 112, elaborates on the intelligence community’s responsibility to keep the congressional oversight committees “fully and currently informed” of U.S. intelligence activities, which is required by the National Security Act.

Among the types of activities that would normally warrant congressional notification, the directive says, are:

— intelligence activities that entail significant risk of exposure, compromise, and loss of human life;

— activities undertaken pursuant to specific direction of the President or the National Security Council, other than covert action (which is subject to a separate reporting requirement);

— a significant unauthorized disclosure of classified intelligence information;

— a conclusion that an intelligence product is the result of foreign deception or denial activity, or otherwise contains major errors in analysis;

— intelligence activities that are believed to be in violation of U.S. law; and so forth.

“Not every intelligence activity warrants written notification,” the directive says.  That determination is “a judgment based on all the facts and circumstances known to the IC element, and on the nature and extent of previous notifications and briefings to Congress on the same matter…. If it is unclear whether a notification is appropriate, IC elements should decide in favor of notification.”

The required notifications “shall contain a concise statement of the pertinent facts, an explanation of the significance of the intelligence activity, and the role of all departments and agencies involved in the intelligence activity.”

The three ongoing prosecutions under the Espionage Act of individuals who allegedly “leaked” classified information to the press are slowly moving forward.

Prosecutors will present their opening brief to an appeals court in the case of Jeffrey A. Sterling, a former CIA officer who is accused of leaking classified information to author James Risen, on January 13, 2012, according to a proposed briefing schedule that was filed yesterday.

The prosecution of Sterling has been suspended in lower court while the government appeals several court rulings that it considers unfavorable.

Specifically, the government wants to overturn the court’s finding that Mr. Risen is protected by a “reporter’s privilege” and cannot be compelled to identify his source.  Prosecutors also want to reverse what they described as an order relating to the Classified Information Procedures Act (CIPA) that the identity of certain government witnesses must be disclosed to the defendant and the jury.  Finally, they are appealing an order that eliminated two potential government witnesses because prosecutors failed to disclose adverse information about the witnesses in a timely manner, a November 9 docketing statement said.

Interestingly, defense attorneys deny that the second issue involving disclosure of witness identities is a CIPA issue that can be appealed at this stage.  They point out that “No order has been entered by the District Court allowing the defendant, over the Government’s objection, to disclose any classified information.  No sanctions have been imposed upon the Government for refusing to allow for the disclosure of any classified information by the defendant in any manner.”  Therefore, “Mr. Sterling does not agree that this appeal raises any issues appealable under CIPA.”

It was also announced yesterday that the case of Army Private Bradley Manning, the suspected WikiLeaks source, will proceed to what is called an Article 32 hearing on December 16 at Fort Meade, Maryland.

“The primary purpose of the Article 32 hearing is to evaluate the relative strengths and weaknesses of the government’s case as well as to provide the defense with an opportunity to obtain pretrial discovery,” according to Private Manning’s attorney, David E. Coombs. “The defense is entitled to call witnesses during the hearing and to also cross examine the government’s witnesses.”

The other ongoing leak prosecution under the Espionage Act is that of former State Department contractor Stephen Kim, who is accused of leaking classified information to Fox News reporter James Rosen.  The prosecution of Mr. Kim is still in an early stage of pre-trial discovery, according to a November 15 status report.

The JASON defense advisory panel held its fall meeting last weekend with briefings on a range of national security topics.  A copy of the program from the closed meeting is posted here.

The JASONs completed at least seven studies this year for various government agencies with titles such as “Solar EMP” and “Domestic Nuclear Surge Operations.”  Secrecy News has requested review of those studies for public release.

The eagerly awaited declassification of vast amounts of historical intelligence satellite imagery that was supposed to occur this year did not take place, and it is unknown when or if it might go forward.

Earlier this year, government officials had all but promised that the declassification and release of miles of satellite imagery film was imminent.

“The NGA [National Geospatial-Intelligence Agency] is anticipating the potential declassification of significant amounts of film-based imagery… in 2011,” the Agency stated in a solicitation that was published in Federal Business Opportunities on February 14, 2011.  (“Large Release of Intelligence Imagery Foreseen,” Secrecy News, February 28, 2011).

“Almost all” of the historical intelligence imagery from the KH-9 satellite (1971-1986) should be declassified within a few months, said Douglas G. Richards of the Pentagon’s Joint Staff at an August 23, 2011 public forum of the National Declassification Center.

But it didn’t happen.  Why not?

“I have no additional information to provide you concerning the status of this declassification effort,” said Mr. Richards by email this week.  “The Joint Staff completed its participation with the action a few months ago, consequently, I don’t know its current status.  Recommend contacting NGA for additional information.”

An NGA spokesman said that the Agency is still weighing the issue and that it will eventually make a recommendation to the Director of National Intelligence on how to proceed.  But it has not yet done so, and there is no particular deadline for it to reach a conclusion on the issue.

“The Director of National Intelligence (DNI) has requested that NGA review the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings for the purpose of making a recommendation to the DNI for possible declassification,” said NGA public release officer Paul R. Polk in a November 10 email message to Prof. Chris Simpson of American University.

“At this time, NGA is conducting an ongoing review of the materials and will make its recommendations to the DNI once the evaluations are completed.”

“If the DNI decides to declassify the subject imagery (or portions thereof), NGA will then need to develop a systematic method for transitioning the holdings over to the National Archives and Records Administration (NARA) for the purpose of making these records available to the general public.”

“In short, NGA cannot at this time advise as to what portions of the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings will be declassified by the DNI, or when they may be available for purchase from NARA,” wrote Mr. Polk in his message to Prof. Simpson.

It is difficult to discern what is going on behind the scenes here.  One official suggested that the public announcements of impending declassification may have had the unintended effect of triggering latent opposition to the move and preventing its implementation.

There is a history of contention over imagery declassification dating back to President Clinton’s 1995 executive order 12951, which declassified imagery from the Corona, Argon and Lanyard intelligence reconnaissance programs.

The Clinton order was a historic development in intelligence policy that was enthusiastically welcomed by scientists, environmentalists and many others at the time.  But it also contained some problematic language that made subsequent declassification action more difficult than it would have been otherwise.  The order stated that intelligence imagery from satellite programs other than Corona, Argon and Lanyard “shall be kept secret… until deemed otherwise by the Director of Central Intelligence.”

Intelligence officials seized upon this language to argue that satellite imagery had been “carved out” of the normal procedures for automatic and systematic declassification.  They insisted that any future release of such imagery was exclusively within the discretion of the DCI (later the DNI), who simply declined to exercise that discretion.

A compelling counterargument can be made that this Clinton order language (or this interpretation of the language) was superseded by later executive orders, including EO 13526, which stated that “no information may be excluded from declassification… based solely on the type of document or record in which it is found” (sect. 3.1g).

But although the debate might have been won in theory, it has been effectively lost in practice.  Contrary to prior official statements, there will be no further declassification of historical satellite imagery in 2011, and no one can say when it might resume.