The Senate Intelligence Committee is proposing to punish leaks of classified information by authorizing intelligence agencies to seize the pension benefits of current or former employees who are believed to have committed an unauthorized disclosure of classified information.

The pending proposal would “provide an additional administrative option for the Intelligence Community to deter leakers who violate the prepublication review requirements of their non-disclosure agreements,” the Committee said in its new report (pdf) on the FY2011 Intelligence Authorization Act.

“This option may require individuals to surrender their current and future federal government pension benefits if they knowingly violate the prepublication review requirements in their non-disclosure agreements in a manner that discloses classified information to an unauthorized person or entity,” the report said.

But the premises of the new proposal are questionable and it has generated some controversy even within the Senate Committee itself.

The starting point of the Committee proposal is that leakers are rarely if ever punished.  “A particular source of frustration has been that leakers are rarely seen to suffer consequences for leaking classified information.”  In fact, however, the number of ongoing leak-related prosecutions is currently at an all-time high.

Secondly, the Committee believes that existing administrative sanctions that stop short of criminal prosecution — including “security clearance revocation, suspension, or termination” — are inadequate and incomplete because they cannot reach persons who are no longer government employees.  “Unfortunately, these sanctions are not generally available for use against a key source of leaks, former Intelligence Community employees.”  But it is not at all clear, and the Committee does not attempt to demonstrate, that former Intelligence Community employees are “a key source of leaks.”  In practice, the government already has strong legal authority to enforce prepublication review requirements, and the CIA is currently engaged in suing at least one of its former employees (“Ishmael Jones”) for an alleged violation of those requirements.

Perhaps for those reasons and others, the Intelligence Community itself did not request the pension seizure authority that the Senate Intelligence Committee now proposes to bestow on it.

But the pending proposal may be worse than unnecessary, said Sen. Ron Wyden in a dissenting statement attached to the new Intelligence Committee report. He said it could discourage whistleblowers and impede congressional access to information.

“My concern is that giving intelligence agency heads the authority to take away the pensions of individuals who haven’t been formally convicted of any wrongdoing could pose serious problems for the due process rights of intelligence professionals, and particularly the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General,” Sen. Wyden wrote.

“It is unfortunately entirely plausible to me that a given intelligence agency could conclude that a written submission to the congressional intelligence committees or an agency Inspector General is an ‘unauthorized publication,’ and that the whistleblower who submitted it is thereby subject to punishment under [this provision], especially since there is no explicit language in the bill that contradicts this conclusion.”

“Withholding pension benefits from a legitimate whistleblower would be highly inappropriate, but overzealous and even unscrupulous individuals have served in senior government positions in the past, and will undoubtedly do so again in the future. This is why it is essential to have strong protections for whistleblowers enshrined in law, and this is particularly true for intelligence whistleblowers, since, given the covert nature of intelligence operations and activities, there are limited opportunities for public oversight. But reporting fraud and abuse by one’s own colleagues takes courage, and no whistleblowers will come forward if they do not believe that they will be protected from retaliation,” wrote Sen. Wyden, who voted against the pending bill (pdf).

Another provision of the bill calls for establishment of “an effective automated insider threat detection program for the information resources in each element of the Intelligence Community in order to detect unauthorized access to, or use or transmission of, classified information.”

Setting aside the specifics of the proposals, the underlying message from the Senate Committee is that agencies should do even more, not anything less or different, to combat leaks of classified information.  The Senate Committee was silent on other aspects of classification policy.  In particular, it had no guidance to offer concerning the halting efforts in the Intelligence Community to reduce overclassification.

Update: Senator Wyden said that he would object to any attempt to pass the FY2011 Intelligence Authorization bill by unanimous consent because of his opposition to the pension forfeiture provision.

The challenges of conducting military operations in a mountainous environment are addressed in a new U.S. Army manual (pdf).

In the mountains, “small mistakes can lead to catastrophic events,” while “technological supremacy can be negated by even the most crude and non-technical enemy actions,” the new manual said.

Therefore, “Mountain combat calls for extreme physical fitness, mental toughness, endurance, and the utmost in tactical and technical proficiency on the part of all individuals.” With proper leadership and preparation, “the physical characteristics of mountains can support and enhance offensive operations.”

See Army Tactics Techniques Procedures (ATTP) 3-21.50, “Infantry Small-Unit Mountain Operations,” February 28, 2011.

The Director of National Intelligence has prepared a draft intelligence directive on access by the Government Accountability Office (GAO) to intelligence information, but it is “shockingly bad,” a congressional official said.

The GAO is an investigative arm of Congress that performs audits and reviews in support of congressional oversight and the legislative process.  But GAO access to intelligence information has often been frustrated by resistance from the executive branch, which has sought to strictly limit the conduct of intelligence oversight to the congressional intelligence committees.

In an attempt to clarify the role of the GAO in intelligence oversight, the 2010 intelligence authorization act directed the DNI to prepare a new intelligence community directive to govern GAO access to intelligence information.  The first draft of the new directive is said to reserve maximum discretion to the DNI, and to offer little practical assurance that GAO will get access to the information it needs.

So, for example, the definition of intelligence information that may be withheld from GAO extends broadly to law enforcement, military and intelligence information related to national security.  GAO access is to be denied whenever it concerns information regarding “intelligence budgets or funding, or personnel information that… may reveal intelligence strategy, capabilities, or operations.”

“In other words, GAO cannot look at anything that involves money or people,” the congressional official told Secrecy News.  “Combine that with the sweeping, open-ended definition of intelligence and large chunks of the federal government suddenly vanish from [GAO] oversight– DOD, FBI, DHS, State Department, etc.”

In fact, because the pending Directive would extend to the entire intelligence community, it could actually make things worse than they already are by undermining current GAO oversight of military intelligence agencies, which by all accounts has been fruitful and effective.

Intelligence officials appeared to be taken aback by the criticism of the draft directive, which has not yet been released.  They said the draft is still in preparation and that it is not intended to undermine GAO’s oversight function.

But the Obama Administration has strongly opposed an enhanced role for GAO oversight of intelligence.  The Obama White House even threatened to veto the 2010 intelligence authorization act over the issue.

Meanwhile, intelligence agencies are operating in an oversight vacuum without effective supervision of their spending practices.  Most of the agencies cannot and do not produce auditable financial statements, the Senate Intelligence Committee reported this month.

“The CIA has submitted its financial reports to an independent auditor but has received a disclaimer of opinion due to the inability of the auditor to gather certain relevant facts.  The NSA, DIA, and NGA are still not even prepared to submit their financial reports to independent audit,” the Senate Committee report (pdf) said.

In its ongoing consideration of policy options for “transforming classification,” the Public Interest Declassification Board has produced three short new papers that are intended to prompt further discussion.

The new papers discuss Simplifying the Declassification Review Process for Historical Records, Discretionary Declassification and Release of Contemporary National Security Information, and Regularizing the Declassification Review of Classified Congressional Records.

Interested members of the public are invited to comment on the PIDB blog here.

The U.S. intelligence community will prepare a National Intelligence Estimate on the implications of the continuing decline in U.S. manufacturing capacity, said Rep. Jan Schakowsky (D-IL) citing recent news reports.

“Last month Forbes reported that the continued erosion of the U.S. manufacturing base has gotten so serious that the Director of National Intelligence has begun preparation of a National Intelligence Estimate… to assess the security implications of the decline of American manufacturing,” said Rep. Schakowsky, a member of the House Intelligence Committee.

“Our growing reliance on imports and lack of industrial infrastructure has become a national security concern,” said Rep. Schakowsky.  She spoke at a March 16 news conference (at 28:10) in opposition to the pending U.S.-Korea Free Trade Agreement.

The Forbes report referenced by Rep. Schakowsky was “Intelligence Community Fears U.S. Manufacturing Decline,” by Loren Thompson, February 14. The decision to prepare an intelligence estimate was first reported by Richard McCormack in “Intelligence Director Will Look at National Security Implications of U.S. Manufacturing Decline,” Manufacturing & Technology News, February 3.

Rep. Schakowsky told the newsletter Inside U.S. Trade (March 25) that she hopes a “declassified portion” of the NIE will be publicly released.

But according to the Congressional Research Service, that may be unlikely.  “There seems to be an emerging consensus that publicly releasing NIEs, or even unclassified summaries, has limitations. Some of the nuances of classified intelligence judgments are lost and there are concerns that public release of an unclassified summary of a complicated situation does not effectively serve the legislative process.” See “Intelligence Estimates: How Useful to Congress?” (pdf), January 6, 2011.

“With 14 million Americans out of a job we should not be considering a trade deal that will ship additional jobs overseas,” said Rep. Schakowsky, referring to the U.S.-Korea Free Trade Agreement.

“Instead, we need to work to rebuild the American manufacturing sector, creating jobs at home. And instead of approving FTAs (free trade agreements) that will offshore more American jobs, we need to establish a trade policy that benefits American workers and the entire American economy,” she said.

The CRS (pdf) cited a study which concluded that overall changes in aggregate U.S. employment attributable to the US-Korea agreement “would be negligible given the much larger size of the U.S. economy compared to the South Korean economy. However, while some sectors, such as livestock producers, would experience increases in employment, others such as textile, wearing apparel, and electronic equipment manufacturers would be expected to experience declines in employment.” Accordingly, the “U.S. beef sector” supports the agreement, while some labor unions oppose it.

See “The Proposed U.S.-South Korea Free Trade Agreement (KORUS FTA): Provisions and Implications,” Congressional Research Service, March 1, 2011.  See also “Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade Policy,” January 6, 2011.

Despite a requirement of law, the U.S. State Department has failed to produce two retrospective volumes of the Foreign Relations of the United States Series documenting U.S. covert action in Iran (1952-54) and the Congo (1960-68).  See Stephen R. Weissman, “Why is US withholding old documents on covert ops in Congo, Iran,” Christian Science Monitor, March 25, 2011.

Civilian casualties in Afghanistan were documented in new detail based on the release of internal military databases to Science Magazine, which published them this month.

An extensive online collection of judicial rulings involving the state secrets privilege and other related resources has been compiled by the Georgetown Center on National Security and the Law.

Louis Fisher, a constitutional scholar formerly at the Congressional Research Service and the Law Library of Congress, has posted many of his writings on the state secrets privilege, war powers, and others aspects of constitutional interpretation on a new web site here.

A recent law review paper entitled “Intolerable Abuses: Rendition for Torture and the State Secrets Privilege” by D.A. Jeremy Telman is available here.

“The False Choice Between Secrecy and Transparency in US Politics” by Clare Birchall appeared in the March 2011 issue of Cultural Politics.

The National Archives and Duke University will hold a conference on April 12 on media access to government information.

In a process that will shape the future of secrecy policy for better or for worse, a search for a new Director of the Information Security Oversight Office (ISOO), which oversees the national security classification system, has formally begun.

“NARA seeks a Director of the Information Security Oversight Office with responsibility for policy and oversight throughout the executive branch of the United States Government for classified national security information and controlled unclassified information,” according to a March 21 notice (pdf) in USA Jobs.

The ISOO Director is the principal overseer of classification and declassification policy, and the scope of his authority over classification practice is broader than that of anyone other than the President.  (Though located at the National Archives, the ISOO takes national security policy direction from the White House.)

The Director is responsible “to ensure compliance” with classification policy, and he has the power to “consider and take action on complaints and suggestions from persons within or” — significantly — “outside the Government” concerning classification.

According to the President’s executive order 13526 (section 3.1e), “If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification.”

With such responsibility and authority in hand, the ISOO Director has the potential to be a powerful driver for change — or a custodian of the status quo.  If it is true that “personnel is policy,” as the Reagan-era saying had it, then the choice of a new ISOO Director may define the character of secrecy policy for years to come.

On March 21, the National Archivist appointed William A. Cira, ISOO’s Associate Director of Classification Management, as Acting ISOO Director, effective March 27.  On that date the current ISOO Director, William J. Bosanko, assumes the new office of Executive for Agency Services at NARA. The job search for a new ISOO Director closes on April 4.

The Director of National Intelligence is calling for the “integrated defense” of intelligence community (IC) information and systems to protect against unauthorized disclosures of intelligence sources and methods.

While every intelligence agency already has its own security procedures, a new Intelligence Community Directive (pdf) issued by the DNI would require a more coordinated and consistent approach, involving “unified courses of action to defend the IC information environment.”

“The IC information environment is an interconnected shared risk environment where the risk accepted by one IC element is effectively accepted by all,” the new Directive said.  Therefore, “integrated defense of the IC information environment is essential to maintaining the confidentiality, integrity, and availability of all information held by each IC element.”

The Directive does not specify the defensive measures that are to be taken, but states that they should address “the detection, isolation, mitigation and response to incidents, which include spills, outages, exploits, attacks and other vulnerabilities.”  An IC Incident Response Center will maintain “situational awareness of network topology, including connection points among IC element networks; threats, vectors, and actions that could adversely affect the IC information environment; and the overall health and status of IC information environment defenses.”

See “Integrated Defense of the Intelligence Community Information Environment,” Intelligence Community Directive (ICD) 502, March 11, 2011.

Although intelligence agencies are not waiting for security policy guidance from Congress, the intelligence oversight committees seem determined to provide it anyway.

In its initial markup of the FY2011 intelligence authorization bill, the House Intelligence Committee has prescribed the establishment of an Insider Threat Detection Program “in order to detect unauthorized access to, or use or transmission of, classified intelligence.”

The Senate Intelligence Committee reportedly wants to require a revised or supplemental non-disclosure agreement for intelligence employees, by which they would consent in advance to surrender their pension benefits if they were found to have committed an unauthorized disclosure.

As far as is known, neither Committee has advanced any new proposals for reducing unnecessary classification or strengthening protections for national security whistleblowers.

It is nearly a decade since the Central Intelligence Agency embarked on its controversial post-9/11 program of prisoner detention and interrogation, which included “enhanced” procedures that would later be repudiated and that were widely regarded as torture.  But even now, an accurate and complete account of that episode remains unavailable.

It is more than two years since the Senate Intelligence Committee belatedly began “a study of the CIA’s detention and interrogation program.”  The Committee reported (pdf) this month that “the CIA has made available to the Committee over 4 million pages of CIA records relating to its detention and interrogation program.”

Yet the Committee said that its two year old review of the nearly decade-old program is still not complete:  “The review has continued toward the goal of presenting to the Committee, in the [current] 112th Congress, the results of the review of the extensive documentary record that has been provided to the Committee.”  There was no mention of presenting the results of the review to the public. See “Report of the Select Committee on Intelligence Covering the Period January 3, 2009 to January 4, 2011,” Senate Select Committee on Intelligence, March 17, 2011.

The Intelligence Committee report presented a number of other noteworthy statements:

A review of electro-optical intelligence satellite collection systems by members of the Committee’s Technical Advisory Group in 2010 “found flawed processes and results from the earliest stage of the requirements process… [and] judged the technical justification for the proposed system fell far short of the standard they expected from an investment of this magnitude.”

The Committee staff “found that too many [defense] attaches are not sufficiently conversant in the languages, cultures, and traditions of the countries to which they are assigned.”

Intelligence agencies continue to fail to produce financial records that can be independently audited.  The National Reconnaissance Office “is the only one of the IC agencies required to produce auditable financial statements that has achieved what appears to be a sustainable opinion with no qualifications from its independent auditors…. The CIA has submitted its financial reports to an independent auditor but has received a disclaimer of opinion due to the inability of the auditor to gather certain relevant facts.  The NSA, DIA, and NGA are still not even prepared to submit their financial reports to independent audit,” the Senate report said.

Under extreme circumstances, U.S. military force may be turned against American civilians. An unusually explicit 1945 U.S. military field manual (pdf) described tactics for suppressing riots or protests when State and local officials are unable to control the situation.

“Domestic disturbances are manifestations of civil unrest or tension which take the form of demonstrations or rioting. These public demonstrations or riots may reach such proportions that civil authorities cannot maintain law and order by usual methods. Such disturbances may be caused by agitators, racial strife, controversies between employees and employers concerning wages or working conditions, unemployment, lack of housing or food, or other economic or social conditions.”

“A city held by any organized rioters will be attacked generally in the same manner as one held by enemy troops.”

“When small-arms fire is necessary, troops are instructed to aim low to prevent shots going over the heads of the mob and injuring innocent persons not members of the mob,” the manual said.

For definitional purposes, “a crowd is a large number of persons in a close body.” A “mob is… a crowd whose members, under the stimulus of intense excitement, have lost their sense of reason and respect for law.”

“A mob usually is attacked on the flank, opposite the direction in which it is desired to drive it. When it is apparent that those in front cannot retreat because of pressure from the rear, pressure on the front should be eased temporarily while the rest of the mob is attack with chemical grenades,” the manual advised.

“Bayonets are effective when used against rioters who are able to retreat, but they should not be used against men who are prevented by those behind them from retreating even if they wish to do so.”

The manual, which was originally classified “Restricted,” has long been deemed obsolete and has been superseded by other guidance on military support to civil authorities. It was recently digitized by the Combined Arms Research Library at Fort Leavenworth. See “Domestic Disturbances,” Field Manual 19-15, War Department, July 1945.

Does the secrecy system function according to its own autonomous principles?  Is it beyond the rule of law and outside of presidential control?

Not exactly.  If that were true, then there would never be involuntary changes to classification policy and there would be no compulsory declassification of classified information.  Fortunately, that is not consistently the case.

And yet there is a disturbing pattern of evidence to show that the secrecy system resists external control, and that it will not reliably fulfill even the most explicit presidential commands or the clearest requirements of law.  For example:

*    On December 29, 2009 President Obama ordered all agencies that classify information to issue final implementing regulations for his new executive order on classification policy by the end of December 2010.  The Department of Defense, the largest classifying agency, did not comply.  It did not request a waiver or an extension, it simply did not comply.  As a result, the most important classification reforms advanced by the President have not taken hold at the Department of Defense.  (“Secrecy Reform Stymied by the Pentagon,” Secrecy News, February 24, 2011).

*    Presidents Clinton, Bush and Obama each ordered that all 25 year old classified records, unless they were specifically exempted, “shall be automatically declassified whether or not the records have been reviewed.”  But agencies have refused to implement this provision or to permit automatic declassification without review, thereby crippling the presidential initiative for streamlining the declassification process.  (Under the 1999 Kyl-Lott Amendment, Congress also complicated this provision by prohibiting public release of declassified records without a separate review for nuclear weapons-related information.)

*    The Secretary of State is in standing violation of the Foreign Relations Act of 1991, which requires her to ensure the publication of a “thorough, accurate, and reliable” documentary record of U.S. foreign policy “not more than 30 years after the events recorded.”  But that is not happening.  And things are getting worse, not better.  As a result of the non-compliance by several agencies with timely declassification requirements, there “appears to be a growing distance between the statutory obligation to reach a 30-year line… and the actual length of time it has been taking to compile, review, revise, declassify, and publish those volumes,” according to the most recent report to the Secretary (pdf) from the State Department Historical Advisory Committee.

The failure of law and policy to gain purchase on classification practice is alarming on several levels.  Among other things, it means that would-be reformers cannot be satisfied with the “mere” passage of a new law or the adoption of a new executive order, since the practical effect of these steps may turn out to be illusory.  And it casts a different, more positive light on the role of unauthorized disclosures, which in some cases can compensate for the inability or refusal of government agencies to implement binding declassification and disclosure requirements.

The Public Interest Declassification Board, an advisory committee appointed by the President and Congressional leaders, is developing recommendations on how to transform the national security classification system.  It has invited interested members of the public to comment on its emerging recommendations over the next several weeks on a new blog here.

The Board itself has no power to effect any transformation; it is purely advisory.  However, it has also been fairly influential.  Its advocacy of a National Declassification Center (first proposed by the Moynihan Commission in 1997) probably helped bring that concept to fruition.  In any case, even if the Board has little direct leverage of its own, “we do have access” to senior policy makers, said Board Chair Martin Faga, a former National Reconnaissance Office director, last week.

The initial recommendations of the Board stop well short of anything that we would call transformation.  Most fundamentally, the Board does not propose any reductions in the scope of what is classified.  It also does not inquire whether today’s hierarchical classification system is appropriate to a networked world, much less what could be devised to replace it.

But the very fact of a public conversation on the purpose and character of national security secrecy may have transformative implications.  So interested persons are encouraged to participate.

Board member Sanford J. Ungar wrote about “Unnecessary Secrets” in the March/April 2011 issue of Columbia Journalism Review.