On Foreign Disclosure of U.S. Intelligence

Classified U.S. intelligence information may be shared with foreign recipients when it is advantageous to the U.S. to do so and when it is not otherwise prohibited by law, according to a directive that was publicly released last week by the Office of the Director of National Intelligence.

“It is the policy of the U.S. Government to share intelligence with foreign governments whenever it is consistent with U.S. law and clearly in the national interest to do so, and when it is intended for a specific purpose and generally limited in duration,” states Intelligence Community Directive 403, Foreign Disclosure and Release of Classified National Intelligence, which was originally issued on March 13, 2013.

There are some nuances, however.

For example, intelligence will ordinarily be shared with] foreign governments or their components, coalitions of governments, or international organizations. But individual foreign nationals and independent contractors “do not constitute foreign entities for purposes of foreign disclosure or release except as designated by the DNI.”

(“Disclosure” here means communicating the intelligence without transfering a copy of it for retention. “Release” means providing a copy that the recipient can keep.)

The release last week of Intelligence Community Directive 403, which had been sought through a Freedom of Information Act request, itself represents a novel act of transparency. The prior guidance governing Intelligence Disclosure Policy under DCI Directive 6/7 had not been publicly disclosed, as far as is known. The topic of intelligence liaison relationships, which is distinct but related to foreign disclosure, is among the most sensitive and least publicly documented areas of U.S. intelligence policy.

The current foreign disclosure policy was elaborated in several guidance documents that were also released by ODNI last week:

Criteria for Foreign Disclosure and Release of Classified National Intelligence, Intelligence Community Policy Guidance (ICPG) 403.1, March 13, 2013

Procedures for Foreign Disclosure and Release Requiring Interagency Coordination, Notification, and DNI Approval, Intelligence Community Policy Guidance (ICPG) 403.2, August 8, 2014

Criteria and Conditions for Emergency Foreign Disclosure and Release, Intelligence Community Policy Guidance (ICPG) 403.3, April 29, 2014

Procedures for Interagency Coordination Prior to Foreign Disclosure and Release to Senior Foreign Officials, Intelligence Community Policy Guidance (ICPG) 403.4, October 25, 2014

ICPG 403.1 specifies several categories of intelligence information that may not be shared with a foreign government.

These include intelligence which is protected against disclosure by law or treaty; intelligence on a U.S. person that is not publicly available; intelligence derived from Grand Jury information; and intelligence obtained through a liaison relationship with another government, among other categories.

Intelligence community officials are instructed to anticipate the purposes for which the shared intelligence might be used.

“Disclosures and releases that would support or facilitate lethal action require special consideration and authorization, including referral to the NSC and compliance with NSC direction as appropriate,” according to ICPG 403.1.