Secrecy News provides original reporting on national security secrecy policy, and offers direct public access to government records of public policy significance that are otherwise hard to obtain.

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The government is seeking to limit the disclosure of unclassified information as well as classified information about the National Security Agency at the upcoming trial of former NSA official Thomas A. Drake, who is accused of unlawful retention of classified documents that were allegedly provided to a reporter.

Under the provisions (pdf) of the Classified Information Procedures Act (CIPA), as expected, prosecutors have asked the court to protect certain classified information from disclosure at trial by proposing substitutions, subject to court approval.

But in an unprecedented legal maneuver, they said that some unclassified information concerning NSA should also be kept off the record.  Defense attorneys told the court that the move was outrageous.

“One month from trial, and one year after the Indictment issued in this case, the government has asserted, for the first time, an evidentiary privilege under the National Security Agency Act of 1959 that it claims authorizes the Court to redact, or insert substitutions for, relevant unclassified evidence that will be introduced during the upcoming criminal trial,” wrote public defenders James Wyda and Deborah L. Boardman on May 10 (pdf).  “There is no authority for this unprecedented assertion in the context of a criminal trial.”

Prosecutors said (pdf) their position was legitimate because “NSA possesses a statutory privilege that protects against the disclosure of information relating to its activities.”  The statute exempts the Agency from any required “disclosure of the organization or any function of the National Security Agency….”  Prosecutors said CIPA permits them to invoke this privilege for unclassified information, along with any other privilege that might be germane.

The NSA Act exemption cited by the government is most commonly used in Freedom of Information Act cases to deny access to unclassified information.  It has never been used to exclude information in a criminal case, the defense said.  Even if it were permitted to be invoked in this case, it requires a detailed affidavit to support its use in each instance and no such affidavits have been produced.

“Neither CIPA nor the National Security Agency Act confers courts with the authority to require substitutions for unclassified, relevant evidence in a criminal case,” the defense attorneys said.  They asked the court to block the move or, failing that, to require the government to identify with specificity the reasons why disclosure of the unclassified information would harm national security.

The current pre-trial wrangling in the Drake case illustrates at least two things.  First, the government is pursuing the matter aggressively at the tactical level;  it is fighting to win, not just going through the motions.  (The same, of course, may be said of the defense.)  And second, this case — and each of the other pending leak prosecutions — may be of momentous importance not only to the defendant.  Each proceeding has the potential to establish new precedents and new procedures that will perturb the current understanding of the law, and thereby make future leak prosecutions either easier or harder.

In preparation for the trial of Jeffrey A. Sterling, a former CIA employee who is accused of unauthorized disclosure of classified information, prosecutors this week wrote to the defendant’s attorney explaining how pre-trial interviews of potential witnesses in the case are to be conducted.

First of all, “If you intend to discuss classified information during an interview, the potential witness must possess the requisite security clearances.”  But “You may not rely on the representations of the potential witness as to the status of that person’s clearances,” wrote U.S. Attorney Neil H. MacBride (pdf) on May 9.  We will verify whether the potential witness has the requisite clearance.”

You may not ask “the true identity of covert employees.”  You may not discuss “the background of covert employees.”  You may not ask questions “about intelligence operations other than that which has been disclosed to you in the discovery materials.”

And so on.  “With these restrictions, which we have reviewed with intelligence officials, we believe that you may conduct interviews with potential witnesses consistent with the Protective Order previously entered by the Court,” the US Attorney wrote.

The latest annual report to Congress (pdf) on the F-35 Joint Strike Fighter Program details the soaring costs and deferred production schedule associated with the program.  The report, which has not been publicly released, outlines total program costs from last year as well as per-aircraft costs and planned annual spending rates.

It’s “a useful primer on the Pentagon’s most expensive weapons program,” said one close observer of defense procurement.

A copy was obtained by Secrecy News.  See the 2010 Selected Acquisition Report (SAR) for the F-35, April 2011.

Updated below

Forty years after they were famously leaked by Daniel Ellsberg in 1971, the Pentagon Papers will be officially released next month at the Richard Nixon Presidential Library.

The National Archives announced this week that it “has identified, inventoried, and prepared for public access the Vietnam Task Force study, United States-Vietnam Relations 1945-1967, informally known as ‘the Pentagon Papers’.” As a result, 3.7 cubic feet of previously restricted textual materials will be made officially available at the Nixon Library on June 13, the Archives said in a May 10 Federal Register notice.

While any release of historical records is welcome, the official “disclosure” of the Pentagon Papers is in fact a sign of disarray in the government secrecy system.  The fact that portions of the half-century old Papers remained classified until this year is a reminder that classification today is often completely untethered from genuine national security concerns.

On March 28, 2011 the National Declassification Center announced “the great news that the Office of the Secretary of Defense (OSD) has declassified the information of interest to them” in the Papers, clearing the way for next month’s public release.

Update: See Eleven Words in Pentagon Papers to Remain Classified.

An eye-opening report on corruption in the Afghan Central Bank that was issued last March by the Inspector General of the U.S. Agency for International Development was recently removed from the USAID web site after the Agency decided to classify some of its published contents.

The now-classified IG report focused on the failure to discover a widespread pattern of fraudulent loans at the Kabul Bank which led to the diversion of $850 million, the near collapse in 2009 of the bank, and an ensuing national crisis. Employees of the Deloitte accounting firm, who were serving as advisers to the bank under contract to USAID, could and should have alerted the U.S. government to early signs of fraud, the Inspector General found, but they did not.  (Instead, the U.S. government learned of the bank corruption thanks to a February 22, 2010 story in the Washington Post.)

But in the past week or so, the March 16, 2011 USAID Inspector General report (pdf) was abruptly withdrawn from the Agency’s website.

Why?  Because USAID retroactively classified certain information in the report.

“At the time our report was issued, it was written utilizing information from non-classified sources,” said James C. Charlifue, the chief of staff of the USAID Office of Inspector General.  “After our report had been issued, USAID subsequently classified two documents that were cited in our report.  This action resulted in the report becoming classified and we removed it from the web site,” he told Secrecy News.

Depending on the precise circumstances, the classification of information that has already been officially released into the public domain is either discouraged or prohibited, not to mention futile.  According to executive order 13526 (section 1.7c), declassified information that has already been released can only be reclassified with the written approval of the agency head.  Unclassified information that has been formally released and is no longer under U.S. government control is supposed to be beyond the reach of the classification system altogether.

A spokesman for USAID did not respond to requests for comment on the decision to classify the information.

In the present case, the suppressed IG report remains independently available in its original form.  A copy was obtained by Secrecy News.  See “Review of USAID/Afghanistan’s Bank Supervision Assistance Activities and the Kabul Bank Crisis,” USAID Office of Inspector General report, March 16, 2011.

Much of the substance of the report was previously reported in “U.S. Advisers Saw Early Signs of Trouble at Afghan Bank” by Ernesto Londono and Rajiv Chandrasekaran, Washington Post, March 15, 2011; and “U.S. Agency Ends Accounting Firm’s Afghan Contract” by Alissa J. Rubin and James Risen, New York Times, March 17, 2011.

Now that the original report has been formally classified and withdrawn, “We plan on publishing a non-classified version of the report,” said Mr. Charlifue of the USAID Office of Inspector General, “which we will place on our web site.”

Several intelligence community initiatives to develop improved tools for data search, analysis and fusion were described in the latest report to Congress (pdf) from the Office of the Director of National Intelligence on data mining.

A new program called DataSphere is intended “to aid in the discovery of unknown terrorism relationships and the identification of previously undetected terrorist and terrorism information” through analysis of communication networks and travel patterns.

A continuing program called Catalyst seems to be a glorified search engine that “will enable data fusion/analytic programs to share disparate repositories with each other, to disambiguate and cross-correlate the different agencies’ holdings, and to discover and visualize relationship/network links, geospatial patterns, temporal patterns and related correlations.”

Although these and other initiatives do not yet constitute or engage in “data mining,” they were described in the new report “in the interest of transparency,” ODNI said.  See “2010 Data Mining Report,” Office of the Director of National Intelligence, April 2011.

By every available measure, the level of domestic intelligence surveillance activity in 2010 increased from the year before, according to a new Justice Department report to Congress on the Foreign Intelligence Surveillance Act.

“During calendar year 2010, the Government made 1,579 applications to the Foreign Intelligence Surveillance Court (hereinafter ‘FISC’) for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes,” according to the new report (pdf).  This compares to a reported 1,376 applications in 2009.  (In 2008, however, the reported figure — 2,082 — was quite a bit higher.)

In 2010, the government made 96 applications for access to business records (and “tangible things”) for foreign intelligence purposes, up from 21 applications in 2009.

And in 2010, the FBI made 24,287 “national security letter” requests for information pertaining to 14,212 different U.S. persons, a substantial increase from the 2009 level of 14,788 NSL requests concerning 6,114 U.S. persons.  (In 2008, the number of NSL requests was 24,744, pertaining to 7,225 persons.)

While the 2010 figures are below the record high levels of a few years ago, they are considerably higher than they were, say, a decade ago.  There is no indication that intelligence oversight activity and capacity have grown at the same rate.

A copy of the latest report to Congress, dated April 29, was released under the Freedom of Information Act.

A recent report from the Congressional Research Service addressed “Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire May 27, 2011” (pdf). FISA Amendments in the USA Patriot Act were discussed at a House Judiciary Committee hearing on “Reauthorization of the Patriot Act” (pdf) on March 9, 2011, the record of which has just been published. Related issues were discussed in another House Judiciary Committee hearing on “Permanent Provisions of the Patriot Act” (pdf) on March 30, 2011.

The House Intelligence Committee this week called on the Director of National Intelligence to establish an automated insider threat detection program to deter and detect unauthorized access to, or use of, classified intelligence networks.

“Incidents like the unauthorized disclosure of classified  information by Wikileaks… show us that despite the tremendous progress made since 9/11 in information sharing, we still need to have systems in place that can detect unauthorized activities by those who would do our country harm from the inside,” the Committee said in its May 3 report on the FY 2011 Intelligence Authorization Act.

Curiously, the Committee conveyed no great urgency concerning its proposal.  It said the DNI did not have to demonstrate an initial operating capability for insider threat detection until October 1, 2012.  Full operating capability would not be required until October 1, 2013.

In fact, however, executive branch officials are not waiting for congressional guidance to improve the security of classified networks.  There is already a focused effort to develop “a new administrative structure” for the management of classified electronic records, an Administration official told Secrecy News.  “I can’t say anything about it,” he said, implying that there was something significant to say.

The rise in national security secrecy in the first year of the Obama Administration was matched by a sharp increase in the financial costs of the classification system, according to a new report to the President (pdf).

The estimated costs of the national security classification system grew by 15% last year to reach $10.17 billion, according to the Information Security Oversight Office (ISOO).  It was the first time that annual secrecy costs in government were reported to exceed $10 billion.

An additional $1.25 billion was incurred within industry to protect classified information, for a grand total of $11.42 in classification-related costs, also a new record high.

The cost estimates, based on the classification-related activities of 41 executive branch agencies, were reported to the President by ISOO on April 29 and released yesterday.  They include the estimated costs of personnel security (clearances), physical security, information systems security, as well as classification management and training — all of which increased last year.

Many factors contribute to the rise in secrecy costs, but one of them is widespread overclassification.  Ironically, the new ISOO report provides a vivid illustration of the overclassification problem.

ISOO did not disclose security cost estimates for the large intelligence agencies — the Office of the Director of National Intelligence, the Central Intelligence Agency, the National Security Agency, the National Geospatial-Intelligence Agency, and the National Reconnaissance Office — because those costs are considered classified.

Secrecy News asked two security officials to articulate the damage to national security that could result from release of the security cost estimates for the intelligence agencies, but they were unable to do so.  They said only that the classification of this information was consistent with intelligence community guidance.  But this is a circular claim, not an explanation.  The information is classified because somebody said it’s classified, not because it could demonstrably or even plausibly damage national security.

This kind of reflexive secrecy, which is characteristic of much of contemporary classification policy, would be stripped away if the Administration’s pending Fundamental Classification Guidance Review were properly and successfully implemented.  That Review process is supposed to bring “the broadest possible range of perspectives” to bear on the question of exactly what information should be classified, according to an ISOO implementing directive (pdf).  But so far there is no visible indication that the process is bearing fruit, or even that the Administration is seriously committed to it.

Last week Under Secretary of Defense for Intelligence Michael G. Vickers took time away from more urgent matters to sign a new memorandum (pdf) concerning implementation of the President’s 2009 executive order on classification.  But the Vickers memorandum is incomplete, dealing only with “immediate” implementation issues, and it does not mention the Fundamental Classification Guidance Review at all.

The Information Security Oversight Office reported last month that the number of original classification decisions — or “new secrets” — that were generated by the Obama Administration in its first full year in office (FY 2010) was 224,734.  That was a 22.6 percent increase over the year before.

U.S. Special Operations Forces continue to experience rapid post-9/11 growth, with swelling ranks, rising budgets and a new set of missions.  Special operations forces were reportedly involved along with CIA personnel in the killing of Osama bin Laden in Pakistan on May 1.

“Special operations” are defined (pdf) as military operations that are “conducted in hostile, denied, or politically sensitive environments to achieve military, diplomatic, informational, and/or economic objectives employing military capabilities for which there is no broad conventional force requirement. These operations often require covert, clandestine, or low visibility capabilities…. Special operations differ from conventional operations in degree of physical and political risk, operational techniques, mode of employment, independence from friendly support, and dependence on detailed operational intelligence and indigenous assets.”

Special Operations Forces operate “from the tropics to the Arctic regions, from under water to high elevations, and from peaceful areas to violent combat zones,” said Adm. Eric T. Olson, the Commander of U.S. Special Operations Command (SOCOM).

“Although the precision counterterrorism missions certainly receive the most attention,” he told Congress in the 2011 SOCOM posture statement (pdf) last March, “SOF are conducting a wide range of activities in dozens of countries around the world on any given day.”

“On an average day, in excess of 12,000 Special Operations Forces (SOF) and SOF support personnel are deployed in more than 75 countries across the globe,” he said last year (pdf).

The number of special operations personnel has grown 3-5% each year for the last several years and is now approaching 60,000, about one-third of whom are qualified SOF operators.

Meanwhile, the SOCOM budget has increased sharply since 9/11 from $2.1 billion in 2001 to $9.8 billion in FY2011.  The FY2012 request is $10.5 billion, the Congressional Research Service noted (pdf).

New doctrine (pdf) published last month for Special Operations lists 11 “core activities” versus 9 in the previous edition (2003), reflecting the addition of “security force assistance” — aiding the development of foreign security forces — and counterinsurgency.  See “Special Operations,” Joint Publication 3-05, April 18, 2011.

In addition to its core tasks, US SOCOM is also assigned by law (10 USC 167j) to perform “such other activities as may be specified by the President or the Secretary of Defense.”  This is an open-ended category that is analogous to the statutory language used to authorize CIA covert actions, and it can be used to underwrite an almost unlimited variety of clandestine missions.  But while there is a well-defined mechanism for congressional oversight of covert action, no similar process for congressional notification and review appears to exist for clandestine SOF missions.

A U.S. SOCOM Factbook, dated November 2010, is available here (pdf).

Traditionally all male, Special Operations Forces are recognizing new roles for women, Adm. Olson said.  “Our attached female Cultural Support Teams (CSTs) allow us to reach key elements of the population in some environments which was not previously possible. This concept of attaching females to SOF units is effective and long overdue; we are urging the Services to recognize the capabilities of CSTs as essential military skills.”

Curiously, Adm. Olson cited the Office of Strategic Services, the CIA precursor organization, as an exemplar of innovation for SOCOM to follow, suggesting that more contemporary models were hard to find. “Our efforts to become more innovative include studying the best practices of other organizations. For example, we are inspired by the ability of the World War II’s Office of Strategic Services to rapidly recruit specialized talent, develop and acquire new technologies and conduct effective global operations within the period of its relatively brief existence.”

A grand jury has been empaneled in the Eastern District of Virginia to investigate a possible violation of the Espionage Act involving the computer-based acquisition of protected government information concerning national defense or foreign relations.  In other words, the Grand Jury seems to be investigating WikiLeaks.

Glenn Greenwald of Salon.com reported that a summons to appear before the Grand Jury on May 11 was served on an unidentified recipient in Cambridge, MA. He also posted a copy of the document.  See “FBI serves Grand Jury subpoena likely relating to WikiLeaks,” April 27.

The initial hurdle to any possible prosecution of WikiLeaks is to identify a specific crime that it may have committed.

The subpoena suggests that the path chosen by prosecutors (as predicted) is to allege a conspiracy to violate the Espionage Act under 18 USC 793(g).  But like much of the Espionage Act, the practical meaning of this statute is quite unclear.  So is its application here, beyond the bare implication that WikiLeaks instigated the unlawful transfer of information in a manner that is not protected by freedom of the press.

As things stand, everyone agrees that information gained by committing a crime is not protected by the First Amendment.  One cannot expect to break into a building to steal documents and publish them, and then invoke freedom of the press.

But what constitutes a crime?  Is it asking a question about a topic that one knows to be classified?  Buying someone lunch in the hope that he may divulge closely held information?  Indicating a willingness and a capacity to receive unauthorized disclosures confidentially?  These would hardly seem to qualify as criminal acts since they are ordinary conventions of national security reporting.

What makes this case both important and dangerous is that by pursuing this line of attack, the reported Grand Jury investigation of WikiLeaks may “clarify” such speculative matters, thereby generating new limitations on freedom of the press.