On July 26, President Obama issued Presidential Policy Directive (PPD) 41 on United States Cyber Incident Coordination.
Aside from the intrinsic interest of this document, it signifies an unexplained burst in the production of Presidential Policy Directives since the public release of PPD 30 in June 2015. Instead of the previous average of around 5 presidential directives issued per year, President Obama produced about ten PPDs in the past 12 months.
With one exception, even the subject matter of PPDs 31 through 40 is publicly unknown.
The exception is PPD 35 on United States Nuclear Weapons Command and Control, Safety, and Security, which was issued on December 8, 2015. PPD 35 was publicly referenced by the Department of Defense in the April 2016 DoD Instruction 5210.42 on DoD Nuclear Weapons Personnel Reliability Assurance.
PPD 35 presumably modifies and supersedes President GW Bush’s 2003 National Security Presidential Directive (NSPD) 28, which was identically entitled United States Nuclear Weapons Command and Control, Safety, and Security.
But since neither the text of NSPD 28 nor that of PPD 35 have been made public, the substance of any changes that were made to U.S. nuclear weapons policy by the later directive is not known.
The Director of National Intelligence issued — and last week published — a pair of Intelligence Community Directives (here and here) that aim to improve the coordination of human intelligence collection for foreign intelligence and counterintelligence purposes.
The directives are intended “to ensure the deconfliction, coordination, and integration of intelligence activities,” including liaison with foreign intelligence services, in order “to significantly enhance the security of the nation by effectively and efficiently allocating resources.”
The basic idea seems to be to make sure that HUMINT collection agencies are not stepping on each other’s toes and that, to the contrary, they are actively assisting one another in their operations. The desired coordination “should not be pro forma,” the directives both said. “It should include the timely exchange by IC elements of pertinent and necessary information to facilitate operational success.”
See Coordination of Clandestine Human Source and Human-Enabled Foreign Intelligence Collection and Counterintelligence Activities Outside the United States, Intelligence Community Directive 310, June 27, 2016, and
Coordination of Clandestine Human Source and Human-Enabled Foreign Intelligence Collection and Counterintelligence Activities Inside the United States, Intelligence Community Directive 311, June 27, 2016.
The new Directives do not disclose any classified operations or intelligence methods. Yet they are revealing and interesting in several ways.
First, their public availability is a sign of the shifting boundaries of intelligence-related secrecy. The directives were prepared as unclassified documents and were made public on the ODNI website. By contrast, their precursor — Director of Central Intelligence Directive 5/1P on Espionage and Counterintelligence Activities Abroad(which is now rescinded) — was not publicly released.
Second, the new releases conform to and advance the DNI’s transparency policy, which promised to increase public disclosure of the IC’s “governance framework–the rules, authorities, compliance mechanisms, and oversight that guide its activities.” This is not the stuff of headlines (except in Secrecy News). There is nothing scandalous about the directives; to non-specialists, they may actually be kind of boring. But they are part of an ongoing adaptation to public expectations of greater intelligence transparency. They also represent a notable step away from “secret law,” i.e. the reliance on undisclosed mandates or internal regulations that are inaccessible to the public.
The directives, which feature lots of “if…, then…” clauses, show the emphatically rule-based character of much of intelligence policy. The directives were plainly written by lawyers. (A sample sentence: “For purposes of this Directive, the term ‘coordination’ is understood to encompass ‘deconfliction’ and ‘integration’.”). A human intelligence collector in the field may need a lawyer standing by to explain their full meaning and implications.
Apparently, though, this is nothing new.
When he joined the CIA in 1975, wrote former CIA attorney John Rizzo in his 2014 book Company Man, “I was struck by how much scope and impact CIA lawyers, even one as wet behind the ears as I was, had on the day-to-day mission of the Agency.”
The topic of “secret law” is probed at great length in a new law review paper, which substantiates the concept and suggests a set of principles for addressing it. See “Coming to Terms with Secret Law” by Dakota S. Rudesill, to be published in the Harvard National Security Journal.
Secret law is defined here as “legal authorities that require compliance [but] that are classified or otherwise withheld from the public.”
The paper provides extensive citations to relevant source material (including a few references to Secrecy News), thoughtful consideration of arguments for and against the status quo, and a novel compilation of congressional reports that include classified addenda. (h/t Lawfare)
A recent article in Secrecy News indicated that the classified annexes that accompany the annual intelligence authorization bills are legally binding and constitute “secret law” (A Growing Body of Secret Intelligence Law, May 4).
Robert S. Litt, the General Counsel of the Office of the Director of National Intelligence, wrote in last week to dispute that characterization:
I read your piece on secret law and the classified annex to the Intelligence
Authorization bills with interest. I thought it was worth responding to let you know
that I believe you are incorrect in saying that the classified annex has the force of
law. Each year’s Intelligence Authorization Act contains a provision — usually
Section 102 in recent years — that provides that the amounts authorized to be
appropriated are those set out in the schedule of authorizations in the classified
annex. It is only that schedule of authorizations that has the force of law. The
remainder of the annex is report language explaining the positions of the committee
on a variety of issues, and has no more force than any other committee report. That
is to say, it expresses the views of the Congress, and it therefore would ordinarily be
followed as a matter of comity, but does not have the force of law.
In this regard, it is worth noting that the unclassified Joint Explanatory Statement
accompanying the Intelligence Authorization Act for FY 2015 states (160 Cong. Rec.
S6464, Dec. 9, 2014):
“This joint explanatory statement shall have the same effect with respect to the
implementation of this Act as if it were a joint explanatory statement of a
committee of conference.
“This explanatory statement is accompanied by a classified annex that contains
a classified Schedule of Authorizations. The classified Schedule of
Authorizations is incorporated by reference in the Act and has the legal status of
In short: The schedule of authorized amounts that is contained within the classified annex does have the force of law, but the rest of the classified annex does not.
We accept the correction.
A congressional intelligence committee staff member concurred.
“The majority of the classified annexes are distinct from the schedules of authorization and are where the Committees opine on and direct various things,” the staff member said. “As a technical point, I believe that Bob is correct — they don’t have the force of law as they are not incorporated in the same way as the schedules.”
“That said, we very much expect that the Executive Branch will follow them, which in fact it does. I don’t know that this matters much, though. While it may not be secret law, it is secret text that the Congress approves and is presented to the President at the time of his signature and that we believe is binding in practical terms,” the staff member added.
Thus, even if they do not entirely qualify as “secret law,” the classified annexes still have normative force, helping to shape the direction and execution of intelligence policy.
They therefore retain their significance for government accountability, including congressional accountability. And yet as a category of documents, the annexes are completely withheld from the public even decades after they are produced. Unfortunately, that remains undisputed.
* * *
Its specific content aside, Mr. Litt’s message is noteworthy as an uncommon act of official participation in public dialog.
In an open society, government officials ought to be reasonably accessible to the members of the public whom they ostensibly serve. But with some exceptions, they are not. Either they are insulated by layers of security, or they are isolated by hierarchical bureaucratic structures that make them unreachable. The secrecy-intensive culture of intelligence only aggravates the problem. Even an open government law like the Freedom of Information Act creates a procedural buffer that often impedes any kind of direct dialog.
Unlike most of his colleagues, Mr. Litt has been willing to engage with members of the public with some frequency. You can ask him a question. You can argue with him. He will argue with you. The point is that he is available to non-governmental interlocutors in a way that should be ordinary but is in fact unusual and exemplary. (See, for example, here, here and here.)
Mr. Litt’s attentiveness to the nuances of an article in Secrecy News brings to mind a passage from Robert M. Gates’ 1996 CIA memoir From the Shadows that is dear to the heart of small newsletter writers. The author was recalling Director of Central Intelligence Bill Casey whom he described as an omnivorous consumer of information from even the most obscure sources.
“Bill Casey was one of the smartest people I have ever known and certainly one of the most intellectually lively,” Gates wrote (p. 217). “He subscribed to newsletters and information sheets that I sometimes thought couldn’t have more than five readers in the world, and then he would ask if I had seen one or another item in them.”
After President Obama suggested in a 2013 speech that the CIA drone program could be transferred to the Department of Defense, Senator Dianne Feinstein inserted a classified amendment in a spending bill to discourage the move, Politico recalled in a story last month.
Classified legislative language has been generated by Congress and used to shape intelligence policy each year since the congressional intelligence committees prepared the first stand-alone intelligence authorization act in 1977 (for Fiscal Year 1978).
Though unpublished, those classified provisions have the force of law, the Senate Intelligence Committee declared in the FY 1978 intelligence authorization report (S.Rpt. 95-214, May 16, 1977):
“It is the intent of the committee that the classified report, although not available to the public, will nonetheless have the force of a Senate authorization bill; further that the Intelligence Community shall comply fully with the guidelines and limitations contained therein,” the intelligence authorization report said.
What were those guidelines and limitations that the Intelligence Community was obliged to comply with? That remains a secret almost four decades later, because that first classified committee report has never been made public. Neither has a single one of the subsequent classified annexes to the annual committee authorization bills. Though they may have the legal force of other authorizing legislation, their classified contents remain almost entirely inaccessible to the public.
“The idea of secret laws is repugnant,” a federal appeals court memorably said (Torres v. INS, 7th circuit, 1998). The court’s concern at the time was that “People cannot comply with laws the existence of which is concealed.” But compliance aside, secret laws are also problematic because people cannot challenge them or seek to amend them.
“Secret law” can take a variety of forms. The term is often invoked with respect to unreleased opinions of the Office of Legal Counsel that interpret the law for the executive branch in undisclosed ways. It can also apply to secret presidential directives that define national policies and to some other categories of government information.
The classified annexes to the annual intelligence bills appear to constitute secret law in a strict sense. They legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.
As U.S. foreign intelligence agency activities have expanded into non-consensual domestic collection practices and unconventional “enhanced” techniques, the secret laws that govern them become more than an abstract concern.
Only sporadically do particular provisions of classified annexes to the intelligence bills ever come to public knowledge, whether through leaks or official disclosures.
The account of Sen. Feinstein’s secret intervention to maintain the CIA drone program was first reported by Greg Miller in the Washington Post (“Lawmakers seek to stymie plan to shift control of drone campaign from CIA to Pentagon,” January 15, 2014).
On other occasions, the Senate Intelligence Committee has voluntarily disclosed some of its own classified actions, if only in broad outline. Thus, the Committee revealed in a retrospective report this year:
* “In the Intelligence Authorization Act for Fiscal Year 2014 and associated classified annex, the Committee recommended additional resources to help assure the IC meets [its] counterintelligence and security goals as soon as possible.”
* “The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the DNI to provide an implementation plan for the Human Capital Vision.”
* “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 directed the development of a specific GAO review to bolster intelligence oversight and reduce unnecessary fragmentation, overlap, and duplication.”
* “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 required the DNI create a governance and oversight model to provide the DNI and the Congress with the insight required to ensure IC ITE [the IC Information Technology Enterprise] meets milestones for performance, cost, and schedule. The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the CIA, DIA, NRO, NGA, and NSA to provide specific plans for adoption of IC ITE-compliant capabilities.”
Secret intelligence legislation is a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.
“The declassification procedures for classified records created by committees of Congress, particularly classified reports and closed hearing transcripts, are irregular and limited,” said the Public Interest Declassification Board in a 2007 report on Improving Declassification.
“The classified records created by the Congress often provide unique and significant insights into national security policy, decision making, and the budget and oversight process at a given point in time,” the PIDB report said. “Yet, because the records of the committees are classified and never subjected to declassification review, the public and historians are largely unaware of their existence.”
The PIDB recommended that “formal procedures should be established for the declassification review of classified committee reports and hearing transcripts.” But with few exceptions, that recommendation has not been acted upon, and the number of declassified congressional reports remains disappointingly small.
One example of a declassified committee report is the release last year of a redacted summary of the SSCI report on CIA detention and interrogation. Another is the redacted 2002 final report of the congressional joint inquiry into the 9/11 terrorist attacks.
Over the years, the Senate Foreign Relations Committee has published declassified transcripts of the Committee’s executive sessions (closed hearings) in a series of twenty volumes covering 1947 through 1968. But after the latest volumes were published in 2007 and 2010 (covering hearings in 1967 and 1968), no further releases have been forthcoming from the Committee.
Update: For a response from ODNI, see Annexes to Intelligence Bills are not “Secret Law.”