Mahmoud M. Hegab was a well-regarded budget analyst at the National Geospatial-Intelligence Agency (NGA) until last year when his Top Secret/SCI security clearance was abruptly revoked.

Among the issues precipitating his loss of clearance were the fact that his newlywed wife had graduated from an Islamic school, that she had participated in an anti-war protest, and that she had engaged in pro-Palestinian political activity while a student at George Mason University.

This week Mr. Hegab filed a lawsuit against the NGA seeking reinstatement of his clearance.

“The revocation of plaintiff’s security clearance and access to classified information by NGA was based solely on plaintiff’s wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization,” wrote Sheldon I. Cohen, Mr. Hegab’s attorney.  None of her actions or affiliations posed any national security concern, the lawsuit said.

There is no constitutional right to be granted a security clearance.  However, Mr. Hegab does have “a property interest in his continued employment in the position he previously held at NGA,” wrote Mr. Cohen.  “NGA by its actions has deprived plaintiff of his property interest in his continued employment with the federal government in violations of plaintiff’s right to due process under the First, Fifth and Ninth amendments to the United States Constitution.”

The new complaint presented an extensive account of Mr. Hegab’s experience along with a detailed rebuttal of the allegations against him and his wife.  The NGA’s response to the complaint will be posted in Secrecy News when it is filed in a month or so.

“Muslims have replaced Jews as targets of discrimination” in the security clearance system, according to a report in Moment magazine, a Jewish monthly.  See “Anti-Muslim Discrimination in Post 9/11 America,” April 2011.

Former CIA officer Jeffrey Sterling, who is accused of leaking classified information to reporter James Risen, should not be permitted to argue at trial later this month that he was unfairly singled out for prosecution, government attorneys urged in an October 4 motion.

“The Court should bar the defendant [Sterling] from presenting any evidence, argument or comments of selective prosecution or that everybody leaks classified information,” the prosecution motion said.

Further, the motion said, Sterling should not be allowed to introduce evidence “that everyone at the CIA or on Capitol Hill leaks information” or evidence “regarding specific examples of the leaking of classified information, whether prosecuted or not.”

If such evidence were to be introduced at trial, prosecutors said, then “Fights over the classification levels of the information, the potential damage caused to the United States, and a host of other issues would consume and overwhelm the real issues in this case.”

Among several other categories of defense evidence or argument that prosecutors asked the Court to rule out of order were claims that the alleged leaks were justified or necessary, unsupported defense allegations of an alternative perpetrator of the leaks, and arguments that CIA has conspired to implicate the defendant.

Prosecutors said that case law does not allow the presentation of “arguments that leaks are good or necessary, or that [Sterling] was a whistleblower, thereby justifying his conduct or negating his criminal intent.”

And they said “There is absolutely no evidence that the CIA was out to get the defendant, or that the CIA orchestrated some grand conspiracy to blame the defendant for the leaks to Risen.”

In a separate motion yesterday, prosecutors petitioned the court to admit into evidence several categories of statements.  These included CIA records of phone calls made by James Risen to CIA public affairs, talking points presented by Condoleezza Rice at a White House meeting with Risen and Jill Abramson of the New York Times, and “excited utterances” made by an individual identified as Human Asset No. 1 who believed his identity might have been compromised by publication of information in Mr. Risen’s book.

The trial of Jeffrey Sterling is scheduled to begin on October 17.

“The Soldier’s Guide,” which is something like the U.S. Army equivalent of the Boy Scout Handbook, was updated last month.  The 436 page Guide is filled with instruction and lore about life in the U.S. Army.  It covers Army history, traditions, and professional development.

In places the text limps.  Thus, “The Army’s core values are loyalty, duty, respect, selfless service, honor, integrity and personal courage. They form the acronym LDRSHIP.”  In other places, it is moving and profound.  The Guide explains that when you are in the Army, your first duty is not to the Army, but to the U.S. Constitution.  “Put [your] obligations in correct order: the Constitution, the Army, the unit, and finally, self.”  See “The Soldier’s Guide,” Field Manual, 7-21.13, February 2004, with Change 1, September 20, 2011.

“Law and Order Operations” is the topic of another recently updated Army manual.  In the past, this term referred primarily to law enforcement activities at military facilities.  But its scope has now expanded.  “The applications of L&O [law and order] operations and the requirements for Army LE [law enforcement] personnel to conduct these operations have grown tremendously as nation building and protracted stability operations have demonstrated the need for civil security and civil control as critical lines of effort within the larger effort to transfer authority to a secure and stable HN [host nation] government.” See “Law and Order Operations,” ATTP 3-39.10, June 20, 2011.

This week the Army published an updated regulation on “Military Justice.”  The 176-page regulation presents rules and procedures for administering justice in the military.  It addresses a variety of particular offenses, including “subversion, treason, domestic terrorism, and known or suspected unauthorized disclosure of classified information or material.”  See “Military Justice,” Army Regulation 27-10, October 3, 2011.

The Department of Defense this year cancelled 82 security classification guides as a result of the ongoing Fundamental Classification Guidance Review, a focused effort to combat overclassification of national security information.  The cancelled guides can no longer be used to authorize classification of DoD information.

The Fundamental Classification Guidance Review, which must be performed by all classifying agencies under President Obama’s executive order 13526 (sect. 1.9), is intended to ensure that classification guidance reflects current circumstances, and is supposed to eliminate obsolete or unnecessary classification requirements.  Remarkably, it seems to be having a measurable effect.

The cancellation of the 82 DoD classification guides, which are compilations of detailed instructions used for classifying information on various topics, will not make a huge dent in Pentagon secrecy.  The defunct guides amount to only a little more than 4% of the total number of DoD classification guides (of which there are 1,878 extant).  But their withdrawal appears to represent a real, non-rhetorical reduction in the permissible scope of national security secrecy.

In fact, the 82 cancelled guides (which are mostly from the Navy) constitute more than 10% of the 648 DoD classification guides that had been reviewed as of last July.  So by the time that a review of all of the guides is completed, which must be done by June 2012, there is reason to expect the elimination of dozens of additional DoD classification guides.

These data were reported by the Department of Defense in a July 29, 2011 Interim Status Report on the Fundamental Classification Guidance Review (FCGR) that was obtained by Secrecy News under the Freedom of Information Act.

The DoD Interim Report sought to downplay expectations about the final outcome of the Review.  DoD said that most of its classification guides had already been reviewed during the past three years “and declared accurate… by the responsible Original Classification Authority.”  Consequently, the Report said, “within the ongoing FCGR, we have seen few changes or developments impacting actual topics meriting classification.”

But this worrisome remark suggests that there has been a misunderstanding of the Review process by some Pentagon officials.  The question posed by the Fundamental Review is not whether the original classifier believes that a prior classification decision is still valid;  if he or she does not, the information should no longer be classified by any account.

Rather, the Review is supposed to reflect a judgment by subject matter experts other than the original classifier (involving “the broadest possible range of perspectives,” as the ISOO implementing directive says) that the classification action makes continued sense — which is a higher, more demanding standard to meet.  It is not clear from the Interim Report whether DoD is incorporating the views of internal or external subject matter experts in its Review.

“It is essential that we fulfill this [Fundamental Review] requirement in a way that shows responsible stewardship of our resources,” wrote Under Secretary of Defense Michael G. Vickers in a May 19 tasking memo.  “We cannot afford to expend resources on protecting information that no longer meets the criteria for classification.”

In a related development of potentially great significance, the DoD Interim Report mentions in passing that “The DoD Inspector General is evaluating the nomination of the [Fundamental Review] to be identified as an IG Special Interest Item (SII).”  Any such involvement by the Inspector General could bring valuable depth and perspective to the Fundamental Review, and add to its effectiveness in stripping away unwarranted secrecy.

Meanwhile, the Office of the Director of National Intelligence reported that it had initiated a Fundamental Review of 8 of its 22 security classification guides so far, and that 1 of them had been eliminated “because the program it supported was terminated.”  The ODNI Interim Report, by Information Management Director John F. Hackett, also described various ODNI classification management initiatives to ensure compliance with the executive order.

The FCGR “is not intended to be a superficial review but a thoughtful, methodical process using the experience and knowledge of a variety of subject matter experts,” wrote Stephanie L. O’Sullivan, Principal Deputy Director of National Intelligence, in a May 26 memo to intelligence agencies.

The leading Chinese think tank known as CICIR, or China Institutes of Contemporary International Relations, “is affiliated with China’s top intelligence agency,” according to a profile (pdf) prepared by the DNI Open Source Center (OSC), “although this fact is rarely acknowledged in PRC media.”

The OSC report presents a detailed description of the structure, leadership and publications of the CICIR, which “has been repeatedly named one of China’s top think tanks based, at least in part, on its perceived influence within the PRC government.” See “Profile of MSS-Affiliated PRC Foreign Policy Think Tank CICIR,” Open Source Center, 34 pages, August 25, 2011.

The OSC profile was first reported in “Chinese Think Tank Also Serves as Spy Arm” by Bill Gertz, Washington Times, September 28.

The Obama Administration’s commitment to open government does not extend to Open Source Center analyses like the CICIR report, even when they are unclassified and non-copyrighted.  Americans who wish to read such government publications anyway must therefore rely on unauthorized disclosures.

The Brennan Center for Justice will sponsor a panel discussion October 5 at the National Press Club in Washington DC on overclassification and “Curbing Needless Secrecy” to accompany the release of a new report on the subject.  Participants include former Rep. Christopher Shays, former ISOO director J. William Leonard, former NRO director and chair of the Public Interest Declassification Board Martin C. Faga, and Elizabeth Goitein of the Brennan Center.

Updated below

When the Central Intelligence Agency established a Center on Climate Change and National Security in 2009, it drew fierce opposition from congressional Republicans who disputed the need for an intelligence initiative on this topic.  But now there is a different, and possibly better, reason to doubt the value of the Center:  It has adopted an extreme view of classification policy which holds that everything the Center does is a national security secret.

Last week, the CIA categorically denied (pdf) a request under the Freedom of Information Act for a copy of any Center studies or reports concerning the impacts of global warming.

“We completed a thorough search for records responsive to your request and located material that we determined is currently and properly classified and must be denied in its entirety…,” wrote CIA’s Susan Viscuso to requester Jeffrey Richelson, an intelligence historian affiliated with the National Security Archive.

With some effort, one can imagine records related to climate change that would be properly classified.  Such records might, for example, include information that was derived from classified collection methods or sources that could be compromised by their disclosure.  Or perhaps such records might present analysis reflecting imminent threats to national security that would be exacerbated rather than corrected by publicizing them.

But that’s not what CIA said.  Rather, it said that all of the Center’s work is classified and there is not even a single study, or a single passage in a single study, that could be released without damage to national security.  That’s a familiar song, and it became tiresome long ago.

But in this case, it is more than an annoyance.  The CIA response indicates a fundamental lack of discernment that calls into question the integrity of the Center on Climate Change, if not the Agency as a whole.  If the CIA really thinks (or pretends to think) that every document produced by the Center constitutes a potential threat to national security, who can expect the Center to say anything intelligent or useful about climate change?  Security robots cannot help us navigate the environmental challenges ahead.  Better to allocate the scarce resources to others who can.

Meanwhile, access by scientists to classified military intelligence data on the environment has actually been improving lately, reports Geoff Brumfiel in the latest edition of Nature (“Military surveillance data: Shared intelligence,” 21 September 2011, sub. req’d).  Among other things, the Clinton-Gore era group of cleared scientists known as MEDEA (Measurements of Earth Data for Environmental Analysis) was reconvened in 2008 at congressional request.

A Federation of American Scientists proposal to expand public access to unclassified open source intelligence products (“Open Up Open Source Intelligence,” Secrecy News, August 24) did not find favor with the White House.  Nothing like it was included in the new U.S. National Action Plan (pdf) for the Open Government Partnership, which mostly elaborates and restates previous commitments.

Update: The National Intelligence Council has published a collection of commissioned papers on “The Impact of Climate Change to 2030” which do not, however, “reflect official U.S. Government positions.”

The number of persons who held security clearances for access to classified information last year exceeded 4.2 million — far more than previously estimated — according to a new intelligence community report to Congress (pdf).

The report, which was required by the FY2010 intelligence authorization act, provides the first precise tally of clearances held by federal employees and contractors that has ever been produced.  The total figure as of last October 1 was 4,266,091 cleared persons. See “Report on Security Clearance Determinations for Fiscal Year 2010,” Office of the Director of National Intelligence, September 2011.

In 2009, the Government Accountability Office had told Congress that about 2.4 million people held clearances “excluding some of those with clearances who work in areas of national intelligence.”  (“More Than 2.4 Million Hold Security Clearances,” Secrecy News, July 29, 2009).  But even with a generous allowance for hundreds of thousands of additional intelligence personnel, that estimate somehow missed more than a million clearances.

Likewise, one of the many startling findings in the 2010 Washington Post series (and 2011 book) “Top Secret America” by Dana Priest and William M. Arkin, was that “An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.”

But remarkably, that too was a significant underestimate, according to the new report.  In actual fact, as of October 2010 there were 1,419,051 federal employees and contractors holding Top Secret clearances.

As high as the newly determined total number of clearances is, it may not be the highest number ever.  In the last decade of the cold war, a comparable or greater number of persons seems to have had security clearances.  In those years the size of the uniformed military was much larger than today, and a large fraction of its members were routinely granted clearances.  Thus, as of 1983, there were approximately 4.2 million clearances, according to 1985 testimony (pdf) from the GAO.  But that was an estimate, not a measurement, and the actual number might have been higher (or lower).  By 1993, the post-cold war number had declined to around 3.2 million clearances, according to another GAO report (pdf) from 1995.

The unexpectedly large number of security clearances today can presumably be attributed to several related factors:  the surge in military and intelligence spending over the past decade, increased government reliance on cleared contractors, and intensive classification activity that continues today.

On the occasion of its 50th anniversary, the National Reconnaissance Office declassified and released thousands of pages of historical records documenting the development and operation of its GAMBIT and HEXAGON satellite programs.  At first glance, many of the documents appear to be interesting and substantial additions to the historical record on the subject.  (The associated satellite imagery does not yet seem to be available.)

For more than a decade, the most detailed illustrations of the KH-9 HEXAGON available to the public were a series of widely replicated line drawings prepared by Charles P. Vick in the 1990s (when he was at the Federation of American Scientists, as a matter of fact).  Now that the KH-9 has been formally declassified and put on public display, as it was last Saturday, it is possible to appreciate what a remarkably perceptive job Mr. Vick did in portraying the satellite’s structure and operation.

For other accounts of the NRO anniversary releases see “KH-9 Hexagon Spy Satellite Makes a Rare Public Outing” by Keith Cowing, September 17, and “Big Black Throws a Party” by Dwayne Day, The Space Review, September 19.

The White House reiterated its support for open government in a new report issued Friday afternoon.  But curiously, the 33-page document on “The Obama Administration’s Commitment to Open Government” (pdf) downplays or overlooks many of the Administration’s principal achievements  in reducing inappropriate secrecy.  At the same time, it fails to acknowledge the major defects of the openness program to date.  And so it presents a muddled picture of the state of open government, while providing a poor guide to future policy.

“At the President’s direction, federal agencies have promoted greater transparency, participation, and collaboration through a number of major initiatives,” the new report says. “The results of those efforts are measurable, and they are substantial. Agencies have disclosed more information in response to FOIA requests; developed and begun to implement comprehensive Open Government plans; made thousands of government data sets publically available; promoted partnerships and leveraged private innovation to improve citizens’ lives; increased federal spending transparency; and declassified information and limited the proliferation of classified information.”

Most of that is true, in varying degrees.  (However, there is no evidence that the proliferation of classified information has in fact been limited; the opposite is the case.)

And yet despite the abundance of itemized detail in the new report, it misses or misrepresents crucial aspects of what has been accomplished and what has not.

Particularly within the domain of national security secrecy, the report leaves out the Obama Administration’s boldest departures from past secrecy policies, suggesting that the White House itself is ambivalent or perhaps remorseful about them.  For example, the report does not mention these groundbreaking measures:

In April 2009, the President broke with prior policy and declassified four Office of Legal Counsel opinions on interrogation and torture that had been tightly held by the previous Administration.  (“OLC Torture Memos Declassified,” Secrecy News, April 17, 2009).  This act finally exposed the purported legal basis for some of the government’s most controversial actions of recent years, and for a while it seemed to promise a new attitude toward the use of secrecy.

In May 2010, the Obama Administration declassified the current size of the U.S. nuclear weapons arsenal for the first time ever.  (“Size of Nuclear Stockpile to be Disclosed,” May 3, 2010).  This is a category of information the disclosure of which had been sought without success for more than half a century, and its release created the potential for greater transparency and accountability in nuclear weapons policy.

In May 2011, the President personally ordered the declassification of an excerpt of a 1968 edition of the President’s Daily Brief — over the objections of intelligence agencies.  (“Obama Declassifies Portion of 1968 President’s Daily Brief,” June 3, 2011).  This act alone lent new substance to the otherwise rhetorical statement that “no information may remain classified indefinitely” and prompted a revision of entrenched prejudices concerning secret intelligence records.

For the first time ever, the Administration this year declassified and disclosed the size of the intelligence budget request for the coming year.  (“A New Milestone in Intelligence Budget Disclosure,” February 15, 2011).  In 1998, the Director of Central Intelligence declared under penalty of perjury that disclosure of such information would cause damage to national security.  But in the Obama Administration, that Cold War perspective has finally been abandoned even by the most senior intelligence officials.

These are among the most important changes in national security secrecy that have been accomplished in the Obama Administration.  So it is puzzling and disturbing that in its own “review of the progress the Administration has made” in promoting greater openness, the new report does not mention any of them.  For whatever reason, the White House does not seem to want to take “credit” for these actions, or to remind readers of them.

If the report minimizes the most positive achievements of secrecy reform to date, it also declines to acknowledge the serious failures of the President’s openness initiative.

Thus, it does not mention that during the first full year of the Obama Administration, the number of new national security secrets (or “original classification decisions”) actually increased by 22.6 percent, according to the latest annual report of the Information Security Oversight Office.  (“Transforming Classification, or Not,” May 18, 2011).  Because it does not include such significant adverse data, the White House report more closely approximates a public relations exercise than a candid account of the current status of openness.

The report alludes to new requirements in the President’s 2009 executive order 13256 that dictate “clarified, and stricter, standards for classifying information.”  But it does not mention that the Department of Defense, the largest classifying agency, failed to meet the President’s deadline for issuing implementing guidance for the new executive order.  The upshot is that many of those new requirements are not being fulfilled in practice, more than a year after the President’s order came into effect.  (“Secrecy Reform Stymied by the Pentagon,” February 24, 2011).  By not admitting such problems, the report also misses the opportunity to identify solutions to them.

Nor does the term “state secrets privilege” appear in the new report, although the Administration’s use of the privilege has been an impenetrable barrier to the resolution of many festering disputes on torture, rendition and surveillance.  Can one even speak of open government when individuals who have been victims of torture like Maher Arar and Khaled el-Masri are barred by secrecy from presenting evidence in a court of law or seeking some other lawful remedy?

The White House report demonstrates that the Obama Administration not only wants to be perceived as open, but that it actually has a commitment to open government.  In addition to the precedent-setting breakthroughs noted above, many of the openness initiatives discussed in the report, such as the access to agency information provided through the website Data.gov, are commendable and worthwhile.

But the report also shows that the Administration’s commitment lacks clarity, consistency, and self-confidence.  This makes it harder to build on the most notable and successful achievements of the past few years.

On Tuesday, September 20, President Obama will participate in the launch of the Open Government Partnership, a multi-national effort to foster open government practices around the world.

The National Reconnaissance Office, the agency that develops and operates U.S. intelligence satellites, is observing the 50th anniversary of its establishment in 1961 with a burst of declassification activity.

Tomorrow, September 17, the newly declassified KH-9 HEXAGON satellite will go on public display — for one day only — in the parking lot of the Udvar-Hazy Center of the National Air and Space Museum.

The KH-9 HEXAGON was a photographic reconnaissance satellite that was first launched in 1971 and ceased operation in the mid-1980s.  At sixty feet long and ten feet in diameter, it is said to be the largest intelligence satellite ever launched by the U.S.

The GAMBIT satellite is also to be unveiled at a Saturday evening reception.  In addition, “almost all” of the voluminous historical intelligence imagery captured by the KH-9 is expected to be released.

“The National Reconnaissance Office is a hybrid organization consisting of some 3,000 personnel that is jointly staffed by members of the Armed Services, the Central Intelligence Agency and Department of Defense civilians,” noted Rep. C.W. Bill Young yesterday. “Headquartered in Chantilly, Virginia, the National Reconnaissance Office launches from Cape Canaveral, FL and Vandenberg Air Force Base, California, while maintaining ground station operations in Virginia, Colorado, New Mexico, the United Kingdom, and Australia.”

After a series of expensive missteps in recent years, the National Reconnaissance Office now seems to be performing with growing consistency and reliability, having successfully launched six satellites in seven months over the past year.  (“NRO Has ‘Most Aggressive’ Launch Record in 25 Years,” Secrecy News, August 25, 2011).

It may be no coincidence that the NRO is the only intelligence agency whose expenditures are capable of being independently audited. For the last two years, the agency’s financial statements have been reviewed by an outside auditor.  And for the second time this year (pdf), the agency’s financial statements were found to “present fairly the financial position and the results of the organization’s operations in accordance with U.S. generally accepted accounting principles.”

By contrast, other U.S. intelligence agencies are not and cannot be audited.  They simply do not generate the type of data that would enable an independent reviewer to verify the integrity of agency expenditures.

It will not be feasible to audit the other large intelligence agencies for several more years, said Director of National Intelligence James R. Clapper last Tuesday.  “Right now our stated objective, I think, is to be fully auditable by 2016,” he told a joint hearing of the House and Senate Intelligence Committees.

The U.S. military says it is taking a more assertive stance against the proliferation or use of weapons of mass destruction.

Newly updated tactical military doctrine “represents a major shift from the former, passive defense nature against nuclear, biological, and chemical weapons to a broader, active, and preventive approach toward a wider range of CBRN [chemical, biological, radiological, and nuclear] threats and hazards,” according to a new manual (pdf) on CBRN Operations.

The new posture constitutes “a significant doctrinal shift from ‘reactive’ to ‘proactive’ military capabilities.  These actions are being performed at the tactical level, perhaps, now more than ever,” the unclassified manual said.  See “Multi-Service Doctrine for Chemical, Biological, Radiological, and Nuclear Operations,” U.S. Army Field Manual 3-11, July 2011.

The manual states that in accordance with international law, “The United States will never use chemical weapons.” Likewise, “The United States will never use biological weapons.”

However, “The United States may use nuclear weapons to terminate a conflict or war at the lowest acceptable level of hostilities.”  (That stark statement is not new, and appeared in prior doctrine published in 2003.)