ODNI Issues Transparency Implementation Plan

10.28.15 | 4 min read | Text by Steven Aftergood

The Office of the Director of National Intelligence yesterday released a transparency implementation plan that establishes guidelines for increasing public disclosure of information by and about U.S. intelligence agencies.

Based on a set of principles on transparency that were published earlier this year, the plan prioritizes the objectives of transparency and and describes potential initiatives that could be undertaken.

Thus, the plan aims to “provide more information about the IC’s governance framework”; to “provide more information about the IC’s mission and activities”; to “encourage public engagement” by intelligence agencies in social media and other venues; and to “institutionalize transparency policies and procedures.”

The plan does not include any specific commitments nor does it set any deadlines for action. And it is naturally rooted in self-interest. Its purpose is explicitly “to earn and retain public trust” of U.S. intelligence agencies.

Nonetheless, it has the potential to provide new grounds to challenge unnecessary secrecy and to advance a corresponding “cultural reform” in the intelligence community.

Perhaps the most important thing about it is the fact that it has been embraced by the Director of National Intelligence, James R. Clapper, who announced its release yesterday at a conference at George Washington University. The DNI’s endorsement gives it an indispensable bureaucratic potency and creates an expectation that measurable results will follow.

But the text of the plan itself also has several noteworthy features. For example:

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The ODNI plan instructs intelligence agencies to release substantive (though unclassified) intelligence information that could be of use to the public:

“The IC should review and provide appropriate information that is of current public utility, such as certain types of foundational information (including imagery). To facilitate the foregoing, the IC should develop a repeatable process of moving unclassified material not subject to other statutory protections to unclassified systems where it may be released.”

This important guidance points in a direction which is exactly the opposite of where CIA has taken its Open Source Center (now the Open Source Enterprise). After decades of providing open source material to the public through the Foreign Broadcast Information Service and then the OSC, the CIA terminated those public offerings in 2013. That move might now be reconsidered in light of the new transparency implementation plan (though CIA says it has no plans to do so).

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The new transparency policy (in principle 3d) calls on intelligence agencies to “consider the public interest to the maximum extent feasible when making classification determinations.”

This is a remarkable statement that goes beyond any requirement in existing classification policy. In particular, President Obama’s 2009 executive order 13526 on classification does not include the public interest as a factor in original classification decisions at all.

The new plan dutifully states that it does not “modify or supersede” executive order 13526. But it does in fact present a different classification construct, or at least a different emphasis. As the plan says, it “reinforces Executive Order 13526, which governs classification standards, while also guiding the IC to consider the public interest to the maximum extent feasible in conducting declassification reviews in order to make as much information available as possible while protecting intelligence information.”

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The new transparency plan could end up altering the future contours of classification policy throughout the intelligence community because it will inform the upcoming Fundamental Classification Guidance Review. That Review is a government-wide evaluation and recalibration of national security classification policy that is due to be completed by 2017.

“The ODNI should work with the Information Security Oversight Office to provide guidance to IC elements on updating classification guides. This guidance should be aligned with the Principles as appropriate,” the plan says, in what may prove to be a misleadingly bland passage.

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The IC plan does not mention the name of Edward Snowden. It speaks of the need to provide channels for “submitting concerns or observations on potential misconduct by IC offices or employees.” But it does not clearly recognize or grapple with what might be called the Snowden conundrum.

That is the peculiar fact that the telephone metadata collection activities that Snowden and, later, most members of Congress and the interested public found objectionable had been secretly approved by all three branches of government. Within the government, collection of “all” telephone metadata was not considered misconduct, potential or actual. As a consequence, “whistleblowing” about these fully authorized activities using internal procedures would have been inapt and ineffective.

The problem, rather, was that a “lawful” secret government program had exceeded the implicit boundaries of public consent. Under the circumstances, disclosure was the only way to resolve the conundrum. This is a failure of congressional oversight above all, but it ought to be faced squarely by each branch of government involved.

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“We believe transparency is worth the cost,” said DNI James R. Clapper in his October 27 speech announcing the new implementation plan.

“Because if the American people don’t understand what we are doing, why it’s important and how we’re protecting their privacy and civil liberties, we will lose their confidence and that will affect our ability to perform our mission — which ultimately serves them.”

See, relatedly, “Clapper’s transparency plan for intelligence community grinds forward” by Josh Gerstein, Politico, October 27.

A commitment to “Increase Transparency of the Intelligence Community” was included in the Open Government Partnership: Third Open Government National Action Plan that was released by the White House yesterday.