In response to an October 2012 presidential directive on “protecting whistleblowers with access to classified information,” the Department of Defense and the Department of Energy have produced their implementing policies.  These would generally prohibit retaliation against individuals who make “protected disclosures” of information to an authorized recipient.

The intelligence community may be retreating from its vision of a uniform community-wide information technology architecture, and may permit individual agencies to retain their “native agency system domain,” reports Bob Brewin in NextGov.  See “Intelligence Community Backs Off Information Sharing,” July 15

The lagging development of the Internet in Africa and its consequences were discussed in “The Emergence of the Internet and Africa” by Les Cottrell, SLAC National Accelerator Laboratory, May 13, 2013

The transcript of the July 9 public meeting of the Privacy and Civil Liberties Oversight Board is now posted here.

 

The inspector general of each executive branch agency that classifies national security information is required to produce an evaluation of the agency’s classification program by the end of September, pursuant to the Reducing Over-classification Act of 2010.  The goal of the reviews is to identify policies and procedures “that may be contributing to persistent misclassification of material.”

This is not a straightforward assignment because classification is not a purely objective process that lends itself to external validation;  rather, it is an expression of presidentially-delegated authority.  And if proper classification is a matter of judgment, then so is overclassification.

“Classifying and controlling the dissemination of information is an inherently subjective process,” said the Department of Defense Office of Inspector General, which prepared guidance earlier this year for other agencies’ inspectors general to help them conduct the required classification reviews.

“Key terminology, such as ‘over-classification’ and ‘damage to national security’ has not been defined [by executive order or regulation], causing those determinations to be made by personnel in the Departments and Agencies,” the DoD IG guidance observed.

But having achieved this insight, the DoD IG guidance does not consider those subjective “determinations” any further. Instead, it retreats into matters can be objectively assessed and measured, focusing on the faithful implementation of the executive order’s requirements.  This is not a useless exercise, but if that is as far as the IG evaluations go, they will not have grasped the root of the problem.

The essence of over-classification is not located in mistaken markings of documents or in non-compliance with the formal procedures of the executive order.  It is to be found above all in an official’s subjective “determination” that classification is necessary.  Thus, for example, when an agency’s classification judgment is overruled by the Interagency Security Classification Appeals Panel — which happens with some frequency — it is not because of an error in procedure but because of an error in judgment.

But the official DoD guidance that has been provided for conducting the pending Inspector General reviews is not well suited for identifying (much less correcting) such errors in classification judgment.  That would require something akin to a peer review process that would evaluate individual classification decisions on their national security merits and, if appropriate, flag them for revision.  Unfortunately, a probing review of this sort does not seem to be on the agenda of the Inspectors General.

On June 21, the Director of National Intelligence issued an updated version of Intelligence Community Directive 710 on Classification Management.  The revised Directive somewhat belatedly reflects the requirements of the December 2009 executive order 13526 on classification policy.

So the forthcoming Inspector General review will be able to confirm that intelligence community classification guidance is now consistent with executive branch policy.  But whether over-classification has thereby been reduced in the slightest is a separate question.

Government programs to declassify national security information are not meeting public expectations, the needs of historians, or even the requirements of law, said the State Department’s Historical Advisory Committee (HAC) in a report last week.

A 1991 statute mandated that the State Department publish the documentary record of U.S. foreign policy (known as Foreign Relations of the United States, or FRUS) no later than 30 years after the events described.  That requirement is not being fulfilled and, the HAC said, is unlikely to be met any time soon due to “substantial delays in the declassification and publication processes.”

“The HAC is not sanguine about the prospects of the series achieving its goal of publishing the majority of the Foreign Relations volumes 30 years after the event in the near future–or possibly ever.”

The HAC, a panel of distinguished historians chaired by Prof. Richard Immerman of Temple University, presented its assessment in an annual report to the Secretary of State.

The members expressed “great concern” that the National Declassification Center (despite “commendable progress”) will not meet the goal set by President Obama to complete the processing of the backlog of 25 year old records awaiting declassification by the end of December 2013.

But failure to complete the required processing is not the only problem. The HAC also expressed dismay that “a substantial percentage of those records that have been reviewed by the NDC have not been cleared for release to the public.  In the opinion of the HAC, the relatively high number of reviewed documents that remain withheld from researchers and citizens raises fundamental questions about the declassification guidelines.”

The HAC said that the National Archives (NARA) needs to exercise greater initiative to address the issue. “The requirements of a transparent society and informed citizenry demand finding solutions. The HAC perceives a lack of urgency on the part of the NARA Administration to find a solution.”

While classification policy is showing some tentative signs of contraction, producing fewer new secrets last year than it has in decades, the declassification process seems to be falling farther behind, underscoring the need for a substantially new approach to declassification.

Instead of a nominal 25 year rule for declassification of most historically valuable documents, the HAC report said, “the opening of declassified records at NARA is trending toward a 35-year if not longer line.”

In May 2010, the Department of Defense disclosed that the U.S. nuclear weapons arsenal consisted of 5,113 warheads (as of September 30, 2009).

This was a disclosure of great significance, the Pentagon explained:  “Increasing the transparency of global nuclear stockpiles is important to non-proliferation efforts, and to pursuing follow-on reductions after the ratification and entry into force of the New START Treaty,” the Department of Defense said then.

The disclosure was also an unprecedented breakthrough in secrecy reform.  Never before had the U.S. government revealed the current size of its nuclear arsenal.  The Obama Administration’s promise to be “the most transparent Administration ever” is often viewed ironically in view of the perceived prevalence of overclassification. But when it comes to nuclear stockpile secrecy (and at least a few other important topics), that promise was fulfilled quite literally.

For all of those reasons, it was dispiriting to learn that the size of the U.S. nuclear arsenal today is once again classified.

In response to a Freedom of Information Act request from the Federation of American Scientists for a copy of records indicating the current size of the U.S. nuclear weapons stockpile, the Pentagon said that the requested information was exempt from disclosure because it is classified under the Atomic Energy Act.

We have appealed the denial, citing the arguments made by a “Senior Defense Official” at a Pentagon press briefing in 2010 to justify the Department’s declassification of the stockpile size through September 2009.

“The objective is to show through our transparency a model that we hope that others will follow. And we think it’s going to have benefits for both nonproliferation and for our future work in arms control,” the Senior Defense Official said then.

We have also asked the Department of Energy to initiate its own declassification of the stockpile size, invoking a federal regulation (10 C.F.R. 1045.20) which allows members of the public to propose declassification of information classified under the Atomic Energy Act.

According to an unofficial estimate by Hans Kristensen and Robert S. Norris of the Federation of American Scientists, the current number of warheads in the U.S. arsenal is approximately 4,650.

The creation of new national security secrets dropped sharply in 2012, recently released government data show.  While the proper boundaries of official secrecy remain a matter of intense dispute, the secrecy system itself is showing surprising new signs of restraint and even contraction.

In 2012, the number of original classification decisions, or decisions to classify new information, decreased by 42 percent from the year before to 73,477, according to the latest annual report from the Information Security Oversight Office (ISOO).  This was the lowest reported level of new classification activity since at least 1989 and possibly longer.

Meanwhile, the number of executive branch officials who are authorized to generate new classified information also dropped last year to a record low of 2,326, the ISOO report said.

The 2012 ISOO Annual Report was transmitted to the President by ISOO Director John P. Fitzpatrick on June 20.

Significantly, the reductions in new secrecy activity are not considered to be a statistical fluke or within the range of normal variability but appear to be the consequence of deliberate policy choices, the ISOO Report said.

“A large part of this decrease [in original classification activity] can be attributed to the Fundamental Classification Guidance Review process and the appropriate recording of classification decisions in security classification guides,” according to ISOO.

The Fundamental Classification Guidance Review was a systematic examination of all government classification instructions that took place between 2010 and 2012 in an effort to validate current classification guidance and to eliminate obsolete or unnecessary secrecy requirements.

The argument for a fundamental review of classification policy was presented in a 2009 paper I wrote on “Reducing Government Secrecy: Finding What Works,” Yale Law & Policy Review, Spring 2009. That paper documented the failure of most classification reform initiatives over the past half century to reduce government secrecy, but also noted that some such initiatives had not failed. The Department of Energy’s Fundamental Classification Policy Review during the 1990s had been a notable success and, it was suggested, could serve as a template for a broader government-wide reconsideration of classification policy.

This proposal was briefed to the National Security Staff in July 2009, and was incorporated in President Obama’s December 2009 executive order 13526, although in attenuated form.  Unlike the earlier review done by the Energy Department, the Obama Fundamental Review did not provide for public comment at the beginning and before the end of the process, nor did it bring to bear (as it was supposed to) “the broadest possible range of perspectives” to critique current classification policy.  So the resulting reductions in secrecy are attenuated correspondingly.

Nevertheless, the newly reported data on reductions in original classification provide evidence that the secrecy system is not an autonomous entity beyond effective control, as might have been supposed, but that it can be modified and constrained by using the levers of public policy.

Other data reported in the new ISOO annual report indicate that classification error correction mechanisms are at least partially functional.

During 2012, government employees filed 402 internal classification challenges disputing the classification of particular items of information.  While the current classification status was affirmed in two-thirds of those cases, classification of the information was overturned in whole or in part in one-third of them.

Appeals of mandatory declassification review requests that had been denied by agencies also received a favorable reception in many cases from the Interagency Security Classification Appeals Panel.  Out of 163 documents considered by the Panel last year, prior agency classification decisions were fully affirmed in only 8 percent of the cases, while 39 percent of the documents were fully declassified at the direction of the Panel and 53 percent were partially declassified.

While all of this is quite encouraging, it does not mean that all is well in the classification system.

Derivative classification, or the application of previous classification decisions to new documents, increased by 3% to a new high of more than 95 million classification actions. (One would have expected the Fundamental Classification Guidance Review to have had greater impact on derivative classification — since it is based on the newly reviewed guidance — than it did on original classification, but that’s not what happened.)

The declassification process remains slow, cumbersome and predicated on an absolute risk avoidance standard that is simply unworkable.  Incredibly, the President’s directive to process the backlog of 25 year old historically valuable document for declassification and public release by December 2013 will apparently not be achieved, although the new ISOO report somehow neglects to mention this.

Nor has the problem of overclassification been solved.  Many classification decisions are still excluded from critical scrutiny and instances of overclassification are not hard to find. For example, the ISOO annual report states that although most agencies’ information security costs are public information, the estimated costs of security incurred by intelligence agencies are nevertheless classified, as in the past, “in accordance with Intelligence Community classification guidance.”  It’s hard to believe that any impartial observer would agree that these cost estimates are properly classified and that their disclosure would cause damage to national security.  (ISOO notes that the suppressed cost estimate is “approximately 20%” of the overall government total.)

Speaking of costs, the total cost of classification-related activities was $9.77 billion in 2012, ISOO noted. Though this figure remains historically high, it is over a billion dollars less than the year before.  In fact, it represents the first annual reduction in secrecy-related expenditures ever reported by ISOO.

While almost everyone would agree that national security secrecy has a role to play in an open society, such secrecy must be carefully circumscribed if robust public access to government information is to be preserved.  A set of principles that open societies around the world can use to help guide and limit the application of secrecy was published this week.

The new Principles on National Security and the Right to Know were generated by an international group of scholars, government officials, activists and others convened by the Open Society Justice Initiative in an attempt to define a global consensus on national security secrecy and to aid legislators and citizens around the world who may be new to the subject.

The Principles present guidance on specific types of information that the drafters believe may legitimately be withheld from disclosure on national security grounds (e.g. current war plans), as well as categories of information that should not be withheld on national security grounds “in any circumstances” (e.g. information on gross violations of human rights).

The Principles are the product of an international initiative, and they are not the same as U.S. policy writ large.  In fact, some of the Principles are inconsistent with current U.S. government practice.

Thus, one principle would preclude the use of secret interpretations of law in the conduct of intelligence surveillance. “The overall legal framework concerning surveillance of all kinds, as well as the procedures to be followed for authorizing surveillance, selecting targets of surveillance, and using, sharing, storing, and destroying intercepted material, should be accessible to the public.” (Principle 10E).

Another principle would provide strong protection to persons who publicly disclose government wrongdoing involving classified information, under certain specified conditions. (Principle 40).

The tools of transparency can be used to attack an open society– by infringing on personal privacy, by violating confidentiality in the exercise of religious freedom or free association, or by making sensitive military or intelligence data available to violent fundamentalist adversaries. But in a briefing paper, the drafters of the Principles disavow such actions.

“The aim of the Principles is not absolute or radical transparency. The Principles, in keeping with international law, recognize that the right of access to information may be limited by other important interests including international relations, public order, public health and safety, law enforcement, future provision of free and open advice, effective policy formulation, economic interests of the state, personal privacy and commercial confidentiality.”

The Principles were developed in response to a wave of global interest in open government, the drafters said.

“In 1989, only 13 countries had access to information laws on their books.  As of June 2013, 94 countries have such laws, granting the right of access to information, at least in theory, to more than 5.2 billion people in all parts of the world.  People in these countries are, many for the first time, grappling with how to keep information confidential pursuant to law rather than by culture or executive discretion.”

It is the drafters’ hope that “the Principles will influence the development and reform of laws and policies in countries that aspire to comply, and to be seen by the international community to comply, with international law.”

“As societies deal with the continuing conflict between the right to know and claims of national security, as well as how to evaluate acts of whistleblowers, these Principles will provide a compelling guide grounded in experience and a deep commitment to the values of open society,” said Morton Halperin, senior advisor to the Open Society Foundations.

As a new wave of classified documents published by news organizations appeared online over the past week, the Department of Defense instructed employees and contractors that they must neither seek out nor download classified material that is in the public domain.

“Classified information, whether or not already posted on public websites, disclosed to the media, or otherwise in the public domain remains classified and must be treated as such until it is declassified by an appropriate U.S. government authority,” wrote Timothy A. Davis, Director of Security in the Office of the Under Secretary of Defense (Intelligence), in a June 7 memorandum.

“DoD employees and contractors shall not, while accessing the web on unclassified government systems, access or download documents that are known or suspected to contain classified information.”

“DoD employees or contractors who seek out classified information in the public domain, acknowledge its accuracy or existence, or proliferate the information in any way will be subject to sanctions,” the memorandum said.

“If President Obama really welcomed a debate [on intelligence surveillance policy], there are all kinds of things he could do in terms of declassification and disclosure to foster it. But he’s not doing any of them.” At least that’s my perception. See Debate on Secret Data Looks Unlikely, Partly Due to Secrecy by Scott Shane and Jonathan Weisman, New York Times, June 11.

“As the administration and some in Congress vent their anger about leaks to The Post and to Britain’s Guardian newspaper, officials have only themselves to blame,” wrote Dana Milbank in the Washington Post today. “It is precisely their effort to hide such a vast and consequential program from the American public that caused this pressure valve to burst.” See Edward Snowden’s NSA leaks are the backlash of too much secrecy, June 11.

I discussed some aspects of the latest surveillance controversy on C-SPAN’s Washington Journal today.

In December 1974, when a previous program of secret government surveillance was revealed by Seymour Hersh in the New York Times, the ensuing public uproar led directly to extensive congressional investigations and the creation of new mechanisms of oversight, including intelligence oversight committees in Congress and an intelligence surveillance court.

The public uproar over the latest disclosures of secret domestic surveillance by The Guardian and the Washington Post different cannot produce a precisely analogous result, because the oversight mechanisms intended to correct abuses already exist and indeed had signed off on the surveillance activities.  Those programs are “under very strict supervision by all three branches of government,” President Obama said Friday.  In some sense, the system functioned as intended.

Nevertheless, all three branches of government performed badly in this case, by misrepresenting the scope of official surveillance, misgauging public concern and evading public accountability.

Official Dissembling and Misrepresentation

The executive branch has repeatedly issued misleading statements about its surveillance programs.

Sen. Ron Wyden asked DNI James Clapper at a March 12, 2013 hearing “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

DNI Clapper replied “No, sir.” He added “Not wittingly. There are cases where they could, inadvertently perhaps, collect — but not wittingly.”

That was not an accurate statement.  Perhaps DNI Clapper misheard the question or misunderstood it, or perhaps he judged that denial was the proper course of action under the circumstances.  But he did not correct the record, and the false statement was left standing.  There is a price to pay in public credibility for such misrepresentation.

On other occasions, executive branch agencies promised declassification of information that they failed to deliver.

In 2010, the Justice Department and the Office of the Director of National Intelligence undertook to declassify opinions of the Foreign Intelligence Surveillance Court that contained “important rulings of law.”

At her 2011 confirmation hearing to be DoJ National Security Division director, Lisa Monaco Congress that “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible….”

But no new Court opinions were ever declassified as a result of this initiative. “As accessible as possible” turned out to mean “not accessible at all.” (Move to Declassify FISA Court Rulings Yields No Results, Secrecy News, May 29, 2012).  Again, official words spoken in public were drained of meaning.

Suppressing Public Oversight

Congressional leaders have repeatedly blocked efforts to provide a modicum of new disclosure and accountability to government surveillance programs.

Some members of the House Judiciary Committee insisted last year that “The public has a right to know, at least in general terms, how often [this surveillance authority] is invoked, what kind of information the government collects using this authority, and how the government limits the impact of these programs on American citizens.”

But when an amendment to require unclassified public reporting on these topics was offered by Rep. Bobby Scott (D-VA), it was defeated 10-19.  For the majority in Congress, the public does not have a right to know these things, not even in general terms.  (Congress Resists Efforts to Reduce Secrecy, Secrecy News, August 6, 2012)

Modest amendments to the FISA Amendments Act offered by Senators Wyden, Udall and Merkley that were intended to increase public reporting and awareness of the scale of surveillance were likewise blocked in the Senate, which renewed the Act without changes. (Intelligence Oversight Steps Back from Public Accountability, Secrecy News, January 2, 2013).  Had these public accountability measures been incorporated into policy, a different future might have unfolded.

Judicial Overreach

Of the three branches, the judicial branch seems least culpable here, since the Foreign Intelligence Surveillance Court, which provides a measure of judicial review of surveillance operations, can only operate within the parameters sought by the executive branch and granted by Congress.

But even here there are concerns about official excess, specifically with respect to the Court order issued by Judge Roger Vinson and disclosed by The Guardian which directed Verizon Business Services to surrender all metadata records of its customers’ telephone calls.

“In our view, the Foreign Intelligence Surveillance Court simply lacks the legal authority to authorize this program of domestic surveillance,” wrote Marc Rotenberg and colleagues at the Electronic Privacy Information Center. They asked Congress to take steps to investigate and clarify the situation.

“The Foreign Intelligence Surveillance Court ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order,” they argued.

Unchecked Secrecy

The common thread underlying all of these deviations from political integrity and public consensus is unchecked official secrecy.  Too much essential information on intelligence surveillance policy has been withheld from public access, thereby inhibiting public debate, precluding informed consent, and inspiring growing cynicism.

The appropriate response must include significant new declassification of surveillance policy and a thorough airing of the issues at stake.  Over the weekend, DNI Clapper made some helpful gestures in this direction.  But more is needed, beginning with release of the Administration’s legal interpretations of its surveillance authorities. In theory, everyone involved has an interest in restoring the credibility and effectiveness of an intelligence oversight system that has not lived up to public expectations.

“Now that the fact of bulk collection has been declassified, we believe that more information about the scale of the collection, and specifically whether it involves the records of ‘millions of Americans’ should be declassified as well,” said Senators Wyden and Udall on Friday. “The American people must be given the opportunity to evaluate the facts about this program and its broad scope for themselves, so that this debate can begin in earnest.”

The Foreign Intelligence Surveillance Court (FISC) told the Senate Intelligence Committee last March that there are “serious obstacles” that would prevent it from preparing summaries of Court opinions for declassification and public disclosure.

The Court was responding to a February 13, 2013 letter from Senators Dianne Feinstein, Jeff Merkley, Ron Wyden and Mark Udall.  They asked the Court to consider “writing summaries of its significant interpretations of the law in a manner that separates the classified facts of the application under review from the legal analysis, so as to enable declassification.”  The proposal stemmed from an amendment to the FISA Amendments Act that was introduced by Sen. Merkley but not adopted.  Sen. Feinstein offered to write a letter to the Court instead.  (Senators Ask Surveillance Court to Summarize Opinions, Secrecy News, February 27, 2013).

FISC Presiding Judge Reggie B. Walton replied in a March 27 letter that the preparation of unclassified (or declassifiable) summaries was not a simple matter.

First, he wrote, any summary would unavoidably involve the loss of legal nuance or technical complexity, creating a likelihood of misunderstanding or confusion.  Second, the legal analysis in most opinions is “inextricably intertwined” with classified information, making an unclassified summary difficult or impossible.  Third, the request would entail current judges summarizing the opinions of previous judges, which could be awkward or misleading.

Judge Walton did not completely dismiss the proposal.  He said that he would encourage the members of the Court “to consider structuring opinions to facilitate declassification, if they believe doing so is warranted in a particular case.”

Still, this shifts the primary declassification burden back to the Justice Department and the intelligence community.  If significant Court rulings are going to be declassified, executive branch agencies will have to be the ones to do it.

The Senate Intelligence Committee had refused to publicly release either its February letter or the FISC’s March reply.  Secrecy News had asked the FISC to release the correspondence and the Court was weighing the request, but the letters were first obtained and disclosed by the New York Times on June 8.

Senators Merkley, Lee, Leahy and Heller said they were preparing to introduce new legislation “to require the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States.”

A former CIA employee and NSA contractor named Edward Snowden identified himself as the source of the the serial revelations of classified documents concerning U.S. intelligence surveillance activities that were disclosed last week.

“I have no intention of hiding who I am because I know I have done nothing wrong,” he told The Guardian newspaper.

“I think that the public is owed an explanation of the motivations behind the people who make these [unauthorized] disclosures that are outside of the democratic model,” he told interviewer Glenn Greenwald in Hong Kong, where he has evidently taken refuge.

“When you are subverting the power of government– that’s a fundamentally dangerous thing to democracy.”

“I’m willing to go on the record to defend the authenticity [of these disclosures]. This is the truth.  This is what’s happening.  You should decide whether we need to be doing this,” he said of his disclosures.

In the history of unauthorized disclosures of classified information, a voluntary admission of having committed such disclosures is the exception, not the norm.  And it confers a degree of dignity on the action.  Yet it stops short of a full acceptance of responsibility. That would entail surrendering to authorities and accepting the legal consequences of “subverting the power of government” and carrying out “a fundamentally dangerous thing to democracy.”

There are occasions when breaching restrictions on classified information may be necessary and appropriate, suggested Judge T.S. Ellis, III of the Eastern District of Virginia in a June 2009 sentencing hearing for Lawrence Franklin, who pleaded guilty to disclosing classified information in the “AIPAC” case.  But in order to reconcile an unauthorized disclosure with the rule of law, he said, it must be done openly.

“I don’t have a problem with people doing that [disclosing classified information to the press] if they are held accountable for it…,” Judge Ellis said. “One might hope that, for example, someone might have the courage to do something that would break the law if it meant they’re the savior of the country; but then one has to take the consequences, because the rule of law is so important.”

“Simply because you believe that something that’s going on that’s classified should be revealed to the press and to the public, so that the public can know that its government is doing something you think is wrong, that doesn’t justify it. Now, you may want to go ahead and do it, but you have to stand up and take the consequences,” Judge Ellis said then.

The Department of Defense this week released the 2012 update of its doctrine on “Peace Operations” including new guidance on so-called Mass Atrocity Response Operations that are designed to prevent or halt genocide or other large-scale acts of violence directed at civilian populations.

A mass atrocity consists of “widespread and often systematic acts of violence against civilians by state or non-state armed groups, including killing, causing serious bodily or mental harm, or deliberately inflicting conditions of life that cause serious bodily or mental harm,” the updated Pentagon guidance said in Joint Publication 3-07.3 on Peace Operations.

“Mass atrocities can erupt at any time during any operation even in an initially uncontested peacekeeping or humanitarian relief operation,” it stated.

Mass Atrocity Response Operations, or MARO, is a newly adopted doctrinal concept that is detailed in Appendix B to the DoD Joint Publication on Peace Operations.  The document, dated 01 August 2012, was withheld from online public access on the DoD Joint Electronic Library.  But a copy was released to the Federation of American Scientists this week under the Freedom of Information Act.

The MARO concept (and even the term itself) is traceable to an influential advocacy effort by Sarah Sewall and her colleagues at the Harvard Kennedy School over the past several years.

In a 2010 Handbook on MARO, they wrote that “The United States does not currently recognize mass atrocities as a unique operational challenge, and there is no operational concept or doctrine that might help commanders understand the dynamics and demands of responding to mass atrocities. As a result, the US is not fully prepared to intervene effectively in a mass atrocity situation.”

Their project aimed to change that state of affairs, and they succeeded to a remarkable extent.  “The term MARO is not yet enshrined in military doctrine,” they wrote then, “but it should be.”  And now, with the new Joint Publication on Peace Operations, it is.

(Along the way, in the August 2011 Presidential Study Directive 10, President Obama declared that “Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.”)

But the Harvard MARO Project was not without critics.  Alan J. Kuperman of the University of Texas wrote that the 2010 MARO Handbook emphasized operational issues to the detriment of larger strategic considerations:  “Unfortunately, since military intervention can unintentionally increase the likelihood of atrocities, the ‘how’ of intervention is inextricably linked to debates about ‘whether’ such action is advisable.”

“Since the advent of widespread humanitarian military intervention in the 1990s, such operations have frequently backfired strategically, by increasing civilian suffering, contrary to their political objective,” he wrote.  (“Mass Atrocity Response Operations: Doctrine in Search of Strategy,” Genocide Studies and Prevention, April 2011, pp. 59-65.)

The new DoD doctrine appears cognizant of these ambiguities and countervailing factors, without being to resolve them in any categorical way.

“The PO [peace operations] force may face difficulties when conducting MARO,” the doctrine notes, “including the challenge of distinguishing between perpetrator and victim groups when the groups are intermingled, when atrocities are being committed by multiple groups, or when the actions are reciprocal… Because a MARO can alter power balances, former victim groups may be able to conduct their own revenge atrocities…. Many people may be misled into assisting in the commission of atrocities by being convinced that they are acting in self-defense.”

“MARO can include unique escalatory dynamics,” as further detailed in the Joint Publication.  “By pursuing MARO, the PO force may change the dynamics on the ground, leading to the potential for MARO to generate second- and third-order effects, intended or unintended.”

These are not issues that can be conclusively settled in military doctrine. “Most of the complexity in MARO — e.g., how to identify perpetrators, whether to treat the symptoms of the violence and/or the root causes, and the degree of risk to assume in moving swiftly — should be addressed by interagency mechanisms such as the President’s Atrocities Prevention Board.”

It will still be up to policymakers “to provide the PO [peace operations] force commander with clear guidance and objectives.”