The rationale for the New START Treaty between the United States and Russia on reductions in nuclear weapons was addressed at length in an October 1 report from the Senate Foreign Relations Committee.  On September 16, the Committee recommended ratification of the Treaty, which awaits consideration by the full Senate.

The 141-page Committee report (large pdf) explained the terms of the Treaty, its verification, its implications for missile defense and prompt global strike, and related subjects of concern or controversy, with dissenting views from opponents.  See “Treaty with Russia on Measures for Further Reduction and Limitation of Strategic Offensive Arms (The New START Treaty),” Senate Foreign Relations Committee (SFRC) executive report 111-6, October 1.

The Senate Committee action was welcomed by many Russian officials as a harbinger of possible Treaty ratification by the end of this year. But other senior Russian officials criticized the Committee’s handling of the Treaty, as noted in a recently updated report (pdf) from the Congressional Research Service:

“On November 3, 2010,… State Duma International Affairs Committee Chairman Kosachev stated that his committee would reopen hearings to discuss the ramifications of the action by the SFRC. He alleged that many of the conditions, understandings, and declarations in the resolution of advice and consent to ratification proposed by the SFRC are ‘deeply worrisome’ to many Russian Duma members, and stated that not only the synchronization of the ratification was necessary, but also the formulation of Russian statements to address those raised by the SFRC. He also raised concerns that a shift in party control in the U.S. Congress could delay or derail U.S. Congressional action on the treaty.”

See “Russian Political, Economic, and Security Issues and U.S. Interests,” Congressional Research Service, November 4, 2010.

The Strategic Arms Limitation Talks between the U.S. and the Soviet Union that led to the signing of the SALT I Treaty in 1972 were documented in exhaustive detail in the latest volume of the official State Department publication Foreign Relations of the United States (FRUS).

The new FRUS volume (pdf), which is more than 1000 pages long, covers internal deliberations over U.S. arms control policy and strategy in the Nixon Administration, and the development, refinement, negotiation and ultimate approval of the SALT I Treaty.

“You cannot put large missiles into small holes,” said Soviet leader Leonid Brezhnev “very irritably,” according to the transcript of a May 23, 1972 discussion on possible modification of existing missile silos.  “It is more complicated than that,” responded national security advisor Henry Kissinger.

Declassification review of this FRUS volume began in 2004 and was completed in 2010. It resulted in the withholding of 1 document in full, excisions of a paragraph or more in 9 documents, and excisions of less than a paragraph in 60 documents, as noted in the Preface.

The White House today issued an executive order to establish a uniform policy for handling “controlled unclassified information” (CUI), which is information that is restricted from disclosure because it involves personal privacy, proprietary data, law enforcement investigations, or for certain other reasons besides national security.

The new CUI framework will replace the multiplicity of agency markings such as “sensitive but unclassified,” “for official use only,” and over a hundred more.  By prohibiting the use of such improvised markings and by adopting a standard CUI marking which is subject to external approval and oversight across the executive branch, the new policy is expected to facilitate information sharing among agencies without fostering new secrecy.

CUI policy had been an open, unresolved item on the government’s information policy agenda for nearly five years, ever since President Bush directed agency heads to “standardize procedures for sensitive but unclassified information” in a December 16, 2005 memorandum.

Significantly, the executive order on CUI does not create any new authority to withhold information from disclosure.  It limits the use of the CUI marking to information that is already protected by statute, by regulation or by government-wide policy.  Furthermore, it requires agencies to gain the approval of the CUI “Executive Agent” before using the CUI marking on any particular category of information.  And it mandates that all such approved categories are to be made public on an official Registry.

In short, the CUI program seems well-crafted to streamline information handling in the executive branch without creating any new obstacles to public access.

But it almost turned out very differently, and one of the most important secrecy policy stories of recent years is what did not happen in the lengthy deliberative process over CUI.  What was poised to happen — but didn’t — is that CUI nearly became an adjunct part of a vastly expanded national security classification system.

As recently as last summer, the proposed CUI concept had all of the essential attributes of classification.  Under a July 2010 draft of the executive order (pdf), agencies would have been permitted to impose CUI controls using a loose, undefined standard (“compelling need”).  Access to CUI would have been conditional on a form of “need to know.”  And unauthorized disclosure of CUI would have been subject to administrative or criminal sanctions.

In every significant respect, CUI would have constituted another level of classification, by another name.  It would have overwhelmed efforts to rein in and reduce official secrecy.

Fortunately a different path was chosen.  To an unusual extent, the Obama Administration consulted with public interest groups on the emerging CUI policy.  In response to their comments, the attributes of classification that appeared in previous drafts were not merely modified but were eliminated altogether.  The result is a tightly focused executive order that clearly articulates a problem and advances a sensible solution to it.

The U.S. Army has published its 2011 Weapon Systems handbook, a catalog of current weapon programs that are in various phases of the acquisition process.  A copy was obtained by Secrecy News. Many of the programs are mature and familiar; others are less so.  In each case, the program’s purpose and status are described, contractors involved in production are identified, and countries that have acquired the weapon system through foreign military sales programs are listed.

Now that regular publication of the intelligence budget total has been accepted as the new norm, it is becoming possible to dismantle the related structures of budget secrecy that no longer serve any purpose.  In particular, the prospect of establishing a stand-alone intelligence budget that is independent of the budget of the Department of Defense came a step closer to reality with the announcement by Director of National Intelligence James R. Clapper Jr. that he had reached agreement on the matter with the Secretary of Defense.

“I’ve secured at least a conceptual agreement with the Secretary of Defense to take the National Intelligence Program out of the Defense budget,” DNI Clapper said (pdf) at the GeoInt conference in New Orleans yesterday.

Currently, the bulk of intelligence spending is buried within the Pentagon budget in a deliberately obscure and misleading way.  This practice is not only unnecessarily secretive, it is also deceptive.  It distorts the DoD budget by artificially inflating individual budget line-items, and it falsely includes spending for the Central Intelligence Agency — a non-DoD agency — as if it were part of the Pentagon.

Restructuring the budget so that spending for the National Intelligence Program is assigned to the Office of the DNI would not guarantee wise or effective intelligence policy. But it would remove a source of pointless obfuscation, and thereby strengthen oversight and accountability.

From the DNI’s perspective, it would enhance control over the budget. “I think that is one specific way to accrue more authority to ODNI in the oversight and execution of that funding,” DNI Clapper said. And from the Pentagon’s perspective, nothing would be lost since DoD does not control this money anyway.  (The Military Intelligence Program budget would remain under DoD authority.) And so the pretense of a larger DoD budget than there actually is could finally be abandoned.

“To me that is kind of a win-win,” DNI Clapper said. “It is $50 billion off the top line of DoD. And it certainly gives ODNI a lot more authority and insight and transparency over that money.”

If one also considers the public interest in achieving honest, straightforward budgeting, then this step would be win-win-win. However, the change in budget structure may imply a corresponding change in the jurisdiction of congressional authorization and appropriations committees, and so it may encounter opposition in Congress from proponents of the existing arrangements.

For related news coverage and background, see “Intel foiled al Qaeda plot, DNI chief says” by Eli Lake, Washington Times, November 3;  “Control of intelligence budget will shift” by Ellen Nakashima, Washington Post, November 3; and “Intel Budget Disclosure: What Comes Next?”, Secrecy News, November 1.

The Foreign Intelligence Surveillance Court, which reviews government applications for domestic intelligence surveillance, issued new rules (pdf) on Monday to govern its proceedings.  The new rules differ only slightly from the draft rules (pdf) that were issued for public comment in late August (“FISA Court Proposes New Court Rules,” Secrecy News, September 2, 2010).  In general, the rules update past Court procedures to reflect passage of the FISA Amendments Act of 2008, which expanded government surveillance authority.

In one modest editorial change suggested by FAS, the Court altered a line requiring that “classified information” be protected to specify that only “properly classified information” must be protected (Rule 62a). Another new provision in the final rules indicated that not only the government but also the Presiding Judge of the FISA Court “may provide copies of Court orders, opinions, decisions, or other Court records to Congress” (Rule 62c2).

In lengthy comments (pdf) submitted to the Court last month, the ACLU proposed several other substantive changes:  the rules should require public release of Court opinions and order that address significant or novel legal questions, including those that affect personal privacy;  the Court should release legal briefs that address such questions;  and the Court should clarify that it is the final arbiter of what information is to be released and what is to be redacted.

“The public has a right to see judicial rulings that define the scope of the government’s most intrusive surveillance powers and affect the rights of all Americans,” said Melissa Goodman of the ACLU National Security Project. “Secret law is inconsistent with the basic principles of democracy and makes informed public debate about the government’s surveillance powers nearly impossible.”

These specific changes were not adopted in the final rule, but new releases of Court records were not precluded either.  Rule 62a explains that a Court order or opinion may be published at the direction of the Presiding Judge, following a declassification review by the executive branch if necessary:

“Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified information is appropriately protected pursuant to Executive Order 13526 (or its successor).”

At first glance, the instruction that the Court “may, as appropriate” seek declassification review of opinions and orders prior to release seems to be permissive, not mandatory.  By contrast, the previous version (pdf) of the Court rules stated that opinions (though not orders) “must be reviewed” by the executive branch prior to publication.

Based on this change in language some observers inferred, happily or unhappily, that declassification review of Court opinions by the executive branch was now optional, and that the Court had reserved the right to release classified information on its own authority without such review.

But that appears to be a erroneous reading.  The Court’s Rule 3 states unequivocally that “In all matters, the Court and its staff shall comply with… Executive Order 13526, ‘Classified National Security Information’.”  That Executive Order does not permit unilateral disclosures of classified information or records without the prior review of the agency that classified them.

With last week’s disclosure of the total intelligence budget for 2010, including budget figures for the National Intelligence Program ($53.1 billion) and the Military Intelligence Program ($27 billion), the Obama Administration has provided a new degree of transparency on intelligence spending.

The National Intelligence Program (NIP) budget total has previously been disclosed each year since 2007, when Congress mandated its disclosure as part of the implementation of the recommendations of the 9/11 Commission. But despite its name, the NIP is only a part of the U.S. intelligence system, which also includes the Military Intelligence Program (MIP). Disclosure of the MIP budget, and thus of the total level of intelligence spending, was not required by Congress.

So why was it done?  Amazingly, what happened is that the U.S. government essentially adopted the position advanced by critics of budget secrecy for the last four decades or so.

“I think the American people are entitled to know the totality of the investment we make each year in intelligence,” said Gen. James R. Clapper at his July 20 confirmation hearing to be Director of National Intelligence.  He was echoing the views of generations of critics since the Church Committee of the 1970s and even before.

Mere disclosure of the NIP figure alone in the last few years was inadequate and misleading, Gen. Clapper said.  “I thought, frankly, we were being a bit disingenuous by only releasing or revealing the national intelligence program, which is only part of the story.” Indeed.

Past arguments against intelligence budget disclosure, which fell into two general categories, went unmentioned.  The first was the so-called “slippery slope” argument, which held that release of the total budget figure would generate irresistible pressure to disclose ever more sensitive detail about intelligence spending.  The second argument was that highlighting intelligence spending would make it a vulnerable target for budget cuts that could not be publicly resisted without disclosing additional classified information.  Both arguments were speculative and unsupported by evidence. Now they have been quietly set aside.

The total amount of intelligence spending was last disclosed in 1997 and 1998 in response to a FOIA lawsuit brought by the Federation of American Scientists, with the support of the Center for National Security Studies. The total intelligence budget figure in those years was $26.6 and $26.7 billion, respectively, compared to today’s total of $80.1 billion.  At that time, the “national” and “military” components of the total budget were not disclosed, so today’s new level of intelligence budget transparency is in fact unprecedented.

See related coverage in the Washington Post, Associated Press, Los Angeles Times, Emptywheel, and Lawfare.

The disclosure of the total annual amount of intelligence spending may be seen as the culmination of decades of advocacy and activism.  Budget disclosure will help to normalize the intelligence function of government, to promote a new degree of public accountability, and to combat the obfuscation and mystification of intelligence.  The move also goes a long way towards fulfilling the constitutional requirement to publish a “statement and account” of all government expenditures from time to time.

But there is still more that can be accomplished in this area to promote budget integrity.  Specifically, if the annual intelligence budget request as well as the budget appropriation were declassified, then it would be possible for Congress to directly appropriate the intelligence budget. The deceptive practice of concealing intelligence spending in the defense budget could be abandoned.  Congressional appropriators would have more authority and more responsibility for intelligence budget oversight.

This is not a new proposal.  The 1996 Aspin-Brown Commission on intelligence reform recommended annual disclosure of both current year appropriations and the next year’s requested amount.  In 2004, the 9/11 Commission called for (pdf) “a separate appropriations act for intelligence,” which would be contingent on an unclassified budget request.  Now that total intelligence appropriations are finally unclassified, these proposals are newly within reach.

In the past, intelligence community leaders have firmly opposed disclosure of the annual budget request.  “Disclosure of the budget request… reasonably could be expected to cause damage to the national security in several ways,” argued DCI George Tenet in response to a Federation of American Scientists FOIA lawsuit in 1999.

“First, disclosure of the budget request reasonably could be expected to provide foreign governments with the United States’ own assessment of its intelligence capabilities and weaknesses. The difference between the appropriation for one year and the Administration’s budget request for the next provides a measure of the Administration’s unique, critical assessment of its own intelligence programs. A requested budget decrease reflects a decision that existing intelligence programs are more than adequate to meet the national security needs of the United States. A requested budget increase reflects a decision that existing intelligence programs are insufficient to meet our national security needs. A budget request with no change in spending reflects a decision that existing programs are just adequate to meet our needs,” DCI Tenet said.

But this point of view, which seemed questionable at the time (though it persuaded a court to rule against us), has now receded.

“Would you support the declassification of the president’s topline intelligence budget request?” asked Sen. Russ Feingold (D-WI) at Gen. Clapper’s July 20 confirmation hearing to be DNI.

“I do support that,” Gen. Clapper replied.  “It has been done.”  The latter remark is puzzling, since declassification of the budget request is not known to have occurred previously.  But Gen. Clapper went on to explain what was at stake and what could be accomplished.

“I would support and I’ve also been working and have had dialogue with actually taking the National Intelligence Program out of the DoD budget since the original reason for having it embedded in the Department’s budget was for classification purposes.  Well, if it’s going to be publicly revealed, that purpose goes away.”

Taking secret intelligence spending out of the Pentagon budget and producing a separate budget appropriation for intelligence would “serve the added advantage of reducing the topline of the DoD budget, which is quite large, as you know.  And that’s a large amount of money that the Department really has no real jurisdiction over.”

“So we have been working and studying and socializing the notion [of] pulling that out of the Department’s budget, which I would think also would serve to strengthen the DNI’s hand in managing the money in the intelligence community,” Gen. Clapper said.

Last week, on the same day that the 2010 intelligence budget totals were revealed, the Office of the Director of National Intelligence also released another previously undisclosed intelligence budget figure — the 2006 budget appropriation for the National Intelligence Program.

“The aggregate amount appropriated to the NIP for fiscal year 2006 was $40.9 Billion,” wrote John F. Hackett (pdf), director of the ODNI Information Management Office.

This  disclosure provides one more benchmark in the steady, sharp escalation of intelligence spending in the last decade.  (The NIP budgets in the subsequent years from 2007-2010 were:  $43.5 billion, $47.5 billion, $49.8 billion, and $53.1 billion.)

But what makes the new disclosure profoundly interesting and even inspiring is something else:  In 2008, Mr. Hackett determined (pdf) that disclosure of this exact same information could not be permitted because to do so would damage national security.  And just last year, ODNI emphatically affirmed that view on appeal.

“The size of the National Intelligence Program for Fiscal Year 2006 remains currently and properly classified,” wrote Gen. Ronald L. Burgess in a January 14, 2009 letter (pdf).  “In addition, the release of this information would reveal sensitive intelligence sources and methods.”

Yet upon reconsideration a year later, those ominous claims have evaporated.  In other words, ODNI has found it possible — when prompted by a suitable stimulus — to rethink its classification policy and to reach a new and opposite judgment.

This capacity for identifying, admitting (at least implicitly) and correcting classification errors is of the utmost importance.  Without it, there would be no hope for secrecy reform and no real place for public advocacy.   But as long as errors can be acknowledged and corrected, then all kinds of positive changes are possible.

The Obama Administration’s pending Fundamental Classification Guidance Review requires classifying agencies to seek out and eliminate obsolete classification requirements based on “the broadest possible range of perspectives” over the next two years.  If it fulfills its original conception, the Review will bring this latent, often dormant error correction capacity to bear on the classification system in a focused and consequential way.  There are always going to be classification errors, so there needs to be a robust, effective way to find and fix them.

The Office of the Director of National Intelligence has issued new standards for the construction of Sensitive Compartmented Information Facilities (SCIFs).

SCIFs (pronounced “skiffs”) are rooms, vaults, or even entire buildings that are specially constructed and certified for the handling and storage of classified intelligence information known as Sensitive Compartmented Information (SCI).

The total number of SCIFs around the country and the world is not known, but is likely to be in the thousands. Each of them must be formally inspected and approved (or “accredited”) for handling intelligence information and protecting it against loss, theft, unauthorized disclosure, electronic interception or other forms of compromise.

The adoption of new uniform standards for all SCIFs, including existing facilities and new construction, is intended “to enable information sharing to the greatest extent possible.”  So “Any SCIF that has been accredited by an IC element… shall be reciprocally accepted for use as accredited by all IC elements….”

Copies of the new standards are available on the Federation of American Scientists website.  See “Physical and Technical Security Standards for Sensitive Compartmented Information Facilities” (pdf), Intelligence Community Standard Number 705-1, September 17, 2010, and “Standards for the Accreditation and Reciprocal Use of Sensitive Compartmented Information” (pdf), Intelligence Community Standard Number 705-2, September 17, 2010.

The Standards were signed by former Assistant DNI David R. Shedd, who became Deputy Director of the Defense Intelligence Agency on September 20, 2010.

Sharing of intelligence and other sensitive information within government and with selected private sector entities remains a work in progress.  Depending on one’s perspective, there is too little sharing, or too much, or else the right stuff is not being shared.

J. Alan Orlob, the Vice President for Corporate Security at Marriott Hotels, told Congress last year (in a newly published hearing volume) that there was still plenty of room for improvement, and illustrated his point with an anecdote.

“After the bombing of the JW Marriott Hotel in Jakarta, Indonesia [in 2003],” he recalled, “the C.I.A. reached out to me to give me a briefing on the terrorist group, Jemaah Islamiya.  I was impressed that they would do so.  However, during the briefing, the information that I was being presented was so vague and obtuse that I began correcting the briefer.  Again, the information that we needed was not being shared. We do not need specifics and names of individuals. We do need to understand terrorist group history, methods, and means.  Only in that way, can we ensure that we are employing proper countermeasures to deter or mitigate an incident.”

See “Lessons from the Mumbai Terrorist Attacks, Parts I and II” (pdf), hearings before the Senate Homeland Security and Governmental Affairs Committee, January 8 and 28, 2009 (published October 2010).

FBI Director Robert S. Mueller told Congress earlier this year that intelligence sharing had actually increased to a daunting level.  “With improved information collection and sharing capabilities within the [U.S. intelligence Community], the FBI receives well over 100 different feeds of criminal and terrorist data from a variety of sources,” he said.  “It is a great challenge to ensure that intelligence analysts are able to efficiently understand and analyze the enormous volume of information they receive.”

See “Securing America’s Safety: Improving the Effectiveness of Antiterrorism Tools and Interagency Communication” (pdf), Senate Judiciary Committee, January 20, 2010 (published October 2010).

The release of a new government-wide policy on “controlled unclassified information” that is supposed to promote the sharing of unclassified “sensitive” information is said to be imminent, more or less.

A bill passed by the Senate last month would require U.S. Customs and Border Protection (CBP) to administer polygraph tests to all applicants for law enforcement positions within the agency.

The move was prompted by reports (originally in the New York Times) and testimony before the Senate Homeland Security Committee that Mexican drug trafficking organizations were attempting to infiltrate the Customs and Border Protection agency by sending drug traffickers to take the entrance examination.

The CBP argued that polygraph testing of job applicants offered the most effective response, a Senate Committee report on the bill explained.

“According to CBP, less than one percent of applicants who are cleared by a polygraph examination subsequently fail the required single scope background investigation (SSBI) [for a security clearance], while roughly 22% of applicants who are not subjected to polygraph investigations fail the SSBI.”

“Because SSBIs cost an average of $3,200, CBP believes that expanding the use of polygraph examinations would cut down on failed investigations and create a more streamlined and cost-effective process for bringing new applicants on board.”  See “Anti-Border Corruption Act of 2010,” Senate Report 111-338, September 29, 2010.

The bill has been referred to the House of Representatives, where it remains pending.

Polygraph testing of CBP applicants already seems to have paid some dividends.  Last week, one job applicant was arrested following a polygraph test in which he confessed to an unrelated crime, the Florida Sun-Sentinel reported October 21.

But CBP reliance on the polygraph is unwise, said critic George Maschke, because “polygraphy is highly vulnerable to countermeasures, and members of criminal enterprises seeking to infiltrate CBP will likely fool the lie detector.”