The Chief Justice of the U.S. Supreme Court has named two new federal district court judges to the Foreign Intelligence Surveillance Court to replace two others whose term had expired.  The FIS Court is responsible for reviewing government applications for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act.

The new appointments are Judge Jennifer B. Coffman of the Eastern District of Kentucky, and Judge F. Dennis Saylor of the District of Massachusetts.

Both judges were appointed for a seven year term effective May 19, 2011, said Sheldon L. Snook, Esq., the Administrative Assistant to the Chief Judge of the US District Court for the District of Columbia.

They replace outgoing FIS Court members Judge Dee Benson and Judge Frederick J. Scullin, Jr. whose term on the Court ended May 18.

“At least one of these [FIS Court] judges is available at all times–24 hours a day, 7 days a week, 365 days a year–for the purpose of reviewing government applications to use FISA authorities and, if those applications are sufficient, approving them by issuing an order,” said Sen. Dianne Feinstein this week.

“During calendar year 2010, the Government made 1,579 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes,” according to the latest Justice Department report to Congress on implementation of the FISA.

The jurisdiction of the FIS Court has also been modified by statute in recent years.  “The FISA Amendments Act, adopted in July 2008, made it so that FISA orders for surveillance in the U.S. of targets reasonably believed to be abroad no longer have to be obtained,” observed Greg Nojeim of the Center for Democracy and Technology.  “As a result, a significant amount of surveillance that used to be reflected in the FISA court order numbers isn’t reflected in them any more.”

Update (6/23/11): On June 13, the Pentagon Papers were published in their entirety. The last eleven words that remained classified were declassified prior to publication.

The Pentagon Papers that were leaked by Daniel Ellsberg four decades ago have been formally declassified and will be released in their entirety next month — except for eleven words that remain classified.

David S. Ferriero, the Archivist of the United States, announced the surprising exception to the upcoming release of the Papers at a meeting of the Public Interest Declassification Board on May 26.

The nature of the censored words was not described, but the National Declassification Center said on its blog that all eleven of them appeared on a single page. (Update: The discussion of the eleven words has been deleted from the NDC blog post.) The Center also said that the release next month “will present the American public with the first real look at this historic document,” because it will be more complete and accurate than any prior edition of the Papers.

From a security policy point of view, the decision to maintain the classification of eleven words is questionable because it invites attention and speculation, not to mention ridicule, focused precisely on that which is withheld.

In any case, all of the Pentagon Papers except for the mysterious eleven words will be officially released in hard copy and online in digital format on June 13.

The decision to censor the eleven words was peculiar, Archivist Ferriero acknowledged.  He suggested that the redactions would lend themselves to an entertaining game of “Mad Libs,” in which players suggest humorous possibilities for filling in the blanks in a sentence.

The Archivist also reported that the National Declassification Center has now achieved the capacity to process 14 million pages of classified records per month for declassification, and that it is in fact declassifying 91% of the material that it is processing.

The Public Interest Declassification Board convened a public meeting Thursday at the National Archives on options for “transforming classification.”  The Board will continue to receive public comments on the subject on its blog until mid-June.

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An amendment offered on May 24 by Sen. Ron Wyden would have challenged the Administration’s reliance on what he called “secret law” and required the Attorney General to explain the legal basis for its intelligence collection activities under the USA PATRIOT Act.  But that and other proposed amendments to the PATRIOT Act have been blocked in the Senate.

“The public will be surprised… when they learn about some of the interpretations of the PATRIOT Act,” Sen. Wyden said, based on his access to classified correspondence between the Justice Department and the Senate Intelligence Committee.

“U.S. Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws or describe the execution of these laws in a way that misinforms or misleads the public.”

“We can have honest and legitimate disagreements about exactly how broad intelligence collection authorities ought to be, and members of the public do not expect to know all of the details about how those authorities are used,” Sen. Wyden said. “But I hope each Senator would agree that the law itself should not be kept secret and that the government should always be open and honest with the American people about what the law means.”

But the Senate moved toward cloture on reauthorization of the PATRIOT Act provisions and the Wyden amendment, which was co-sponsored by several Senate colleagues, was not permitted to be offered or to be voted upon.

The House Judiciary Committee issued a report last week on the reauthorization of surveillance provisions in the USA PATRIOT Act, with a lengthy dissent from the minority members of the Committee. See “FISA Sunsets Reauthorization Act of 2011,” House Report 112-79, part 1, May 18, 2011.

In 2008, then-Sen. Russ Feingold chaired a Senate Judiciary Committee hearing on “Secret Law and the Threat to Democratic and Accountable Government.”

Update: On May 26, Senators Wyden, Udall, Merkley, and Feinstein engaged in a colloquy on secret law and noted an agreement with Senator Feinstein to hold hearings on the matter in the Senate Intelligence Committee. Senators Wyden and Udall spoke further on the subject here.

Instead of imposing mandatory new legal restrictions on publication of sensitive information, the nation would be better off if scientists, journalists and others adopted an ethic of self-restraint in what they choose to publish, a provocative new paper suggests.

“An abundance of information that could be useful to terrorists is available in the open literature,” wrote analyst Dallas Boyd.  But that doesn’t mean it should be censored by law.  “A soft consensus seems to have formed that airing this information does not subtract from national security to such an extent as to justify the extraordinary powers that would be required to suppress it.”

“An alternative to draconian restrictions on speech entails fostering a culture of voluntary restraint, in which citizens refrain from inappropriate revelations out of a sense of civic duty.  Its enforcement would depend not on government coercion but on individuals and institutions supplying disapproval of irresponsible discussion,” he suggested.

“Stigmatization of those who recklessly disseminate sensitive information… would be aided by the fact that many such people are unattractive figures whose writings betray their intellectual vanity.  The public should be quick to furnish the opprobrium that presently escapes these individuals,” he wrote, without quite naming names.  “The need to influence the behavior of scientists is particularly acute.”

The 23-page paper (pdf) contains an extensive account of past disclosures that the author deems questionable or irresponsible, and a thoughtful assessment of the feasibility of his own proposal.

“Perhaps the greatest obstacle to sanitizing discussion of sensitive information is the unresolved question of its harmfulness,” Mr. Boyd wrote.  Indeed, it is often not possible to state definitively that certain information poses an unambiguous hazard. It is typically even more difficult to persuade a publisher of such material to modify his disclosure practices.

Overall, the Boyd paper tends to reinforce the “soft consensus” that new legal restrictions on dissemination of information are to be avoided.  But in most cases, those who are likely to be receptive to the appeal of voluntary self-restraint on publication of sensitive data probably have already embraced it.

“Protecting Sensitive Information: The Virtue of Self-Restraint” by Dallas Boyd was published in Homeland Security Affairs, volume 7, May 2011.  A copy is posted here.

A new counterintelligence directive (pdf) requires all Department of Defense personnel to report a wide range of suspicious activities and behavior to counterintelligence officials.  The directive effectively deputizes millions of military and civilian employees of the Department as counterintelligence agents or informants.  If they do not report any of the specified activities, they themselves could be subject to punitive action.

“Potential FIE [Foreign Intelligence Entity] threats to the DoD, its personnel, information, materiel, facilities, and activities, or to U.S. national security shall be reported by DoD personnel,” the new directive states.

“DoD personnel who fail to report information as required… may be subject to judicial or administrative action, or both, pursuant to applicable law and regulation,” it says.  See DoD Directive 5240.06, “Counterintelligence Awareness and Reporting,” May 17, 2011.

The directive lists numerous actions that are subject to mandatory reporting including “attempts to obtain classified or sensitive information by an individual not authorized to receive such information” and “requests for DoD information that make an individual suspicious, to include suspicious or questionable requests over the internet or SNS [social networking services].”

The directive employs the relatively new term “Foreign Intelligence Entity,” which includes non-governmental organizations based abroad that use intelligence techniques to gather US government information or to influence US policy.  The new phrase did not appear in the official Department of Defense Dictionary of Military and Associated Terms as recently as a year ago (pdf), though it is included in the latest edition of the Dictionary (pdf).

A Foreign Intelligence Entity is defined in the directive as “any known or suspected foreign organization, person, or group (public, private, or governmental) that conducts intelligence activities to acquire U.S. information, block or impair U.S. intelligence collection, influence U.S. policy, or disrupt U.S. systems and programs.  The term includes foreign intelligence and security services and international terrorists.”

A recent article in the Army’s Military Intelligence Professional Bulletin argued that Document and Media Exploitation, or DOMEX — which refers to the analysis of captured enemy documents — should be recognized and designated as an independent intelligence discipline.

“Without question, our DOMEX capabilities have evolved into an increasingly specialized full-time mission that requires a professional force, advanced automation and communications support, analytical rigor, expert translators, and proper discipline to process valuable information into intelligence,” wrote Col. Joseph M. Cox.

“The true significance of DOMEX lies in the fact that terrorists, criminal, and other adversaries never expected their material to be captured,” Col. Cox wrote.  “The intelligence produced from exploitation is not marked with deception, exaggeration, and misdirection that routinely appear during live questioning of suspects.”

See “DOMEX: The Birth of a New Intelligence Discipline” which appeared in the April-June 2010 issue (large pdf) of Military Intelligence Professional Bulletin, pp. 22-32.

The last six issues of Military Intelligence Professional Bulletin, the U.S. Army’s quarterly journal of intelligence policy and practice, are newly available through the Federation of American Scientists website.

Although the Bulletin is unclassified and approved for public release, the Army has opted not to make it publicly available online.  Instead, it was released under the Freedom of Information Act upon request from FAS .  The latest issues address topics such as HUMINT Training,  Cross-Cultural Competence, and Intelligence in Full-Spectrum Operations.

Not all of the articles in the Bulletin are of broad interest or of significant originality.  But many of them are informative and reflective of current issues in Army intelligence.

An Intelligence Community Directive (ICD 302) on “Document and Media Exploitation” (pdf) was issued by the Director of National Intelligence on July 6, 2007.

With its overwhelming emphasis on technical collection, U.S. military intelligence is poorly equipped to meet the requirements of the counterinsurgency mission, according to a recent study (pdf) by the Defense Science Board.

“Many, if not most, specific COIN [counterinsurgency] ISR [intelligence, surveillance, and reconnaissance] requirements are population-centric and are not exclusively solvable with hardware or hard, physical science scientific and technical (S&T) solutions,” the DSB report said.  “One senior intelligence officer with years of field experience pointed out that 80 percent of useful operational data for COIN does not come from legacy intelligence organizations.”

Among other things, “the defense intelligence community does not have the foreign language and culture depth and breadth necessary to plan and support COIN operations,” according to the DSB.

See “Counterinsurgency (COIN) Intelligence, Surveillance, and Reconnaissance (ISR) Operations,” Defense Science Board, February 2011 (released May 2011).

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Prosecutors in the case of Jeffrey A. Sterling, a former CIA officer who is accused of leaking classified information to the press, asked a court (pdf) this week to provide 50 blank subpoenas requiring testimony at a September 12 hearing in the case.  The intended recipients were not identified.

“50 subpoenas seems like a hell of a lot,” said an attorney who has been an observer of the case. “I know who some of the witnesses likely could be, but it doesn’t amount to 50! Of course, [the subpoenas] could also be used for documents.”

Last week prosecutors also filed a mysterious motion (pdf) to depose an unidentified prospective witness.  After the sealed motion was filed on May 12, the court issued an order (pdf) affirming that it was “sufficiently sensitive that it should not be part of the public record.”  However, Judge Leonie M. Brinkema added that “there is no reason why defendant or defense counsel should be prevented from viewing [it].”

Yesterday, the government abruptly withdrew (pdf) the motion.  No explanation was offered on the record.

The fact that the judge used the term “sensitive” to describe the motion and that at the same time she deemed it appropriate to share with the defendant and his counsel suggests that it was not classified and that its sensitivity was attributable to some other factor.  But what?

One immediately thinks of the possibility of a deposition directed at the press, and specifically at New York Times reporter James Risen, with whom Mr. Sterling is alleged to have had a confidential source relationship.

But “I doubt it is a subpoena for the media,” said the observer. “Why would the government have any more success with that for trial than it did pre-trial?”  An earlier subpoena to Mr. Risen was quashed last year by Judge Brinkema, as reported in Politico.

The prospective witness “could also be someone who they anticipate will be unavailable in September (perhaps overseas) or is seriously ill and perhaps is not expected to be around for the trial,” the observer said.

At an April 8 hearing in the case, prosecutor William M. Welch alluded to “potential witness issues” that could make it impossible to proceed with the case, the Associated Press reported.  No details of such issues were provided.

Update: Reporter James Risen was in fact subpoenaed on May 23. See this government motion (pdf) to compel his testimony.

Government attorneys this week asked a court to dismiss a lawsuit brought by author Anthony Shaffer who claimed that his freedom to publish a memoir of his military service in Afghanistan had been violated.  The government said that Mr. Shaffer’s book, “Operation Dark Heart,” which appeared last September in censored form, contained properly classified information which the author has no right to publish.

What makes the case doubly strange is that uncensored review copies of the book are in circulation, along with the redacted version that has become a best seller.  As a result, the case provides a unique opportunity for the public to assess the quality of official classification practices in real time by comparing the two (pdf).

The government has “unlawfully imposed a prior restraint upon the plaintiff by obstructing and infringing on his right to publish unclassified information,” author Shaffer stated in his December 14, 2010 complaint (pdf) against the Department of Defense and the CIA.

Not so, said the Justice Department in its new motion to dismiss (pdf), dated May 16.  The book contains classified material and “Plaintiff has no First Amendment right to publish classified information.”

This week the government also told Mr. Shaffer’s attorney, Mark S. Zaid, that several previously censored words or sentences in the book could now be disclosed.  “While classified eight months ago, [they] no longer remain classified.”  So, for example, the Justice Department said that this sentence was properly classified last September but is now unclassified and may be made public:

“Dawn was an awkward time of day when night-vision goggles were not effective, and it was hard to distinguish anything more than gray and purple shapes.”

A listing of other newly declassified words and sentences in the book was provided by the Justice Department on May 16.

A side-by-side presentation of several censored and uncensored pages from Mr. Shaffer’s book, including some passages that have since been declassified and some that have not, may be found here (pdf).

See also “Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010.

The Public Interest Declassification Board, a White House advisory body, was asked by President Obama to develop recommendations for a “fundamental transformation” of the national security classification system.  The Board developed several proposals of its own and solicited others from interested members of the public.  All of those, including one from the Federation of American Scientists, have now been posted online for public comment.

The Board will hold a public meeting on May 26 at the National Archives to discuss the proposals.

While well-intentioned, the process suffers from several limitations.  First, the President did not specify what manner of “transformation” he had in mind.  This is problematic because the path selected for transformation naturally depends on the desired goal.  Second, the Board has no particular influence or leverage that it can exert to advance its ultimate recommendations.  Even at the White House, most relevant national security personnel seem to be unaware of or uninterested in the Board’s deliberations.  Finally, there is no internal incentive to drive transformation and no visible leadership to compel it.

In truth, the classification system is undergoing transformation at every moment, but mostly in undesirable ways.  Thus, during President Obama’s first full year in office, the number of “original classification decisions,” or new secrets, grew by 22.6 percent, according to the latest annual report (pdf) from the Information Security Oversight Office.

An expanded role for the Government Accountability Office (GAO) in oversight of the U.S. Intelligence Community (IC) may soon become a reality as the result of an official directive that requires intelligence agencies to work with auditors from the GAO, the investigative arm of Congress.

“It is IC policy to cooperate with the Comptroller General, through the GAO, to the fullest extent possible, and to provide timely responses to requests for information,” affirmed Director of National Intelligence James R. Clapper in the new Intelligence Community Directive 114 on “Comptroller General Access to Intelligence Community Information” (pdf). The Comptroller General is the director of the GAO.

“Generally, IC elements shall cooperate with GAO audits or reviews and make information available to appropriately cleared GAO personnel,” the directive added.  The directive was developed in response to a requirement in the 2010 Intelligence Authorization Act.  A copy was obtained by Secrecy News.

There are, however, significant limitations on the newly mandated cooperation.  For example, “Information on intelligence sources and methods” — a notoriously elastic term — “and information related to covert action shall not be provided” to GAO.

There is also a loosely defined provision that would exclude GAO from access to information on “core” intelligence capabilities:  “Information that falls within the purview of the congressional intelligence oversight committees generally shall not be made available to GAO to support a GAO audit or review of core national intelligence capabilities or activities, which include intelligence collection operations, intelligence analyses and analytical techniques, counterintelligence operations, and intelligence funding,” the directive says.

That passage is “the key area in the directive that gives us concern,” wrote Gene L. Dodaro, the Comptroller General, in an April 28 letter (pdf) to the DNI.

“Given historical experience, we are concerned that agencies might interpret the language regarding ‘core’ national intelligence capabilities and activities to apply to a broader range of audits and reviews than ODNI intends,” Mr. Dodaro wrote.  “In fact, agencies have in the past denied GAO access to requested information based on a very expansive view of what ‘intelligence’ entails.”

That language in the directive, “if interpreted broadly, could significantly hinder GAO’s ability to conduct related work that we are routinely requested by the Congress to do,” he wrote.

On the whole, however, Mr. Dodaro of GAO welcomed the new directive.  He said that it “establishes a presumption of cooperation with GAO, including a process for exploring alternative means of accommodating GAO requests for particularly sensitive information; requires timely responses to GAO requests; requires resolution of access disputes at the lowest possible organizational level; and requires communication with GAO, including notification of any delays in responding to requests for information.”

The new Intelligence Community Directive 114 will take effect on June 30.  It was transmitted to Congress, along with the comments of the Comptroller General, on April 29.

The final version of the directive “is better than the horrible first cut,” a congressional official said. An initial draft of the directive last March was deemed to be “shockingly bad” from a congressional perspective. (“DNI Drags Heels on GAO Access to Intelligence,” Secrecy News, March 30, 2011.)

“GAO is in a better position with the [new DNI] protocols than without them — it’s just not entirely clear how much better,” the official told Secrecy News.  “An awful lot depends on how individual IC elements choose to interpret” the language about access to “core” intelligence capabilities. “I’ve read that long, multi-clause sentence dozens of times and come away with a different take every time.”

“It will be very interesting to see how the new protocols are actually implemented.  GAO’s moribund FBI counter-terrorism job is going to be the first test case.”  He was referring to a pending review of counterterrorism programs at FBI that was scuttled due to the FBI’s refusal to cooperate with GAO auditors.  Sen. Charles Grassley (R-ID) complained last year that “The [Department of Justice] Office of Legal Counsel is arguing that GAO does not have the authority to evaluate the majority of FBI counterterrorism positions, as these positions are scored through the National Intelligence Program (NIP) Budget.”

But that obstacle should now have been eliminated.  The new directive states explicitly that IC elements shall not “withhold information solely because the information relates to a program that is funded by the NIP.”

“If the Department of Justice doesn’t play ball, it will show the protocols don’t mean anything,” the congressional official said.  “But my read of them is that they give GAO a clear path forward to finally do the work.”

The Federation of American Scientists favors a greater GAO role in intelligence oversight as a way to augment the limited capacity of the congressional oversight committees.  I discussed the public interest in such an arrangement in testimony (pdf) at a February 29, 2008 hearing of the Senate Committee on Homeland Security and Governmental Affairs.

An insightful account of the pending prosecution under the Espionage Act of former National Security Agency official Thomas A. Drake appears this week in The New Yorker.  Author Jane Mayer delves deeply into the origins of the case stemming from Drake’s critical view of NSA management and surveillance practices. She explores the unfolding consequences of the case and its larger significance.

Among the article’s many striking observations on the Drake case is the concluding quote from Mark Klein, a former AT&T employee who exposed warrantless surveillance activity by the Bush Administration. “I think it’s outrageous,” he says. “The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers.”

See “The Secret Sharer” by Jane Mayer, The New Yorker, May 23, 2011.