Secrecy News

It is plainly true that executive branch officials will sometimes disclose classified information to reporters and other uncleared individuals.  But this practice is not explicitly authorized in any official statement of classification policy.  In fact, with an exception for life-threatening emergencies, it is usually understood to be prohibited.

How can the obviously flexible practice and the seemingly prohibitive policy be reconciled? A newly updated report from the Congressional Research Service presents a close reading of the relevant rules and regulations in search of some wiggle room for authorized disclosures of classified information.

“Nothing in the Executive Order addresses an informal procedure for releasing classified information [to reporters].  E.O. 13526 section 1.1 provides that ‘[c]lassified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,’ but does not address what happens in the event of a disclosure that was in fact authorized,” the CRS report observes.

“By definition, classified information is designated as such based on whether its unauthorized disclosure can reasonably be expected to cause a certain level of damage to the national security. This may be read to suggest that disclosures may be authorized under such circumstances when no damage to national security is reasonably expected.”  (But under those circumstances, it might be noted, the information should be promptly declassified.)

The CRS report, written by legislative attorney Jennifer K. Elsea, continues:  “Nothing in the order provides explicit authority to release classified information that exists apart from the authority to declassify, but it is possible that such discretionary authority is recognized to release information outside the community of authorized holders without formally declassifying it.”  Indeed, this appears to be an accurate characterization of actual practice.

In any case, “there is little to stop agency heads and other high-ranking officials from releasing classified information to persons without a security clearance when it is seen as suiting government needs.”  Again, an accurate description– particularly since “the Attorney General has prosecutorial discretion to choose which leaks to prosecute.”

See The Protection of Classified Information: The Legal Framework, updated December 17, 2012.

Overall, “Executive Branch policy appears to treat an official disclosure as a declassifying event, while non-attributed disclosures [to reporters or others] have no effect on the classification status of the information,” the author writes.

“For example, the Department of Defense instructs agency officials, in the event that classified information appears in the media, to neither confirm nor deny the accuracy of the information.  The Under Secretary of Defense for Intelligence is then advised to ‘consult with the Assistant Secretary of Defense for Public Affairs and other officials having a primary interest in the information to determine if the information was officially released under proper authority.’”

But, the CRS report astutely notes, the relevant DoD regulation “does not clarify what happens in the event the disclosure turns out to have been properly authorized.”

And so it seems that the DoD regulation offers the conceptual space for an authorized disclosure of classified information.

(As if to provide an ironic illustration of the point, the Under Secretary of Defense for Intelligence himself — Michael Vickers — was reportedly cited in a referral to the Department of Justice for disclosing potentially restricted information concerning the pursuit of Osama bin Laden to filmmakers.  See “Bin Laden film leak was referred to Justice; leaker top Obama official” by Marisa Taylor and Jonathan S. Landay, McClatchy Newspapers, December 17, 2012.  In a statement last night, the Department of Defense confirmed that Mr. Vickers is a subject of a pending Inspector General investigation.  But it said the information in question was unclassified in its entirety.)

The CRS report naturally does not constitute an authoritative interpretation of the executive order, and in some respects it may be in error.  The report mistakenly states (at footnote 51) that the DOJ Media Leak Questionnaire that agencies must complete when a referring a leak for investigation is “apparently… part of a Memorandum of Understanding concluded between the Department of Justice and elements of the Intelligence Community.”  But a review of the Memorandum, described in Secrecy News earlier this week, shows that that supposition is incorrect.  The two are separate documents.  See “Crimes Reports and the Leak Referral Process,” Secrecy News, December 17, 2012.

Anti-leak legislation that is pending in the Senate would require executive branch officials to record all authorized disclosures of classified intelligence to the press, and to notify Congress when they occur (cf. sections 501 and 502 of Title V of the FY 2013 intelligence authorization bill).

These provisions, which may prove unworkable in practice, are presumably intended to enable Congress to publicly comment on classified intelligence matters with the same freedom that agency officials already do.  But the public interest concern raised by the notification provisions is that if they are strictly imposed, they may discourage all authorized disclosures of classified intelligence, yielding a net reduction in public access to government information.

New and updated reports from the Congressional Research Service that Congress has directed CRS not to release to the public include the following.

Rising Economic Powers and U.S. Trade Policy, December 3, 2012

Unauthorized Aliens Residing in the United States: Estimates Since 1986, December 13, 2012

DOD Alternative Fuels: Policy, Initiatives and Legislative Activity, December 14, 2012

Federal Land Ownership: Current Acquisition and Disposal Authorities, December 13, 2012

The Controlled Substances Act: Regulatory Requirements, December 13, 2012

Intelligence community officials have been meeting with representatives of the National Archives to discuss the anticipated declassification and release of intelligence imagery from the KH-9 satellite dating between 1971 and 1984.

Officials have been negotiating the transfer of the original negatives from the KH-9 system and the provision of finding aids, according to a newly released but heavily redacted report from the National Geospatial Intelligence Agency, dated June 2012.

Multiple releases of declassified imagery are planned over the coming year “with final delivery of imagery scheduled for September 2013.”  See “Intelligence Imagery Set to be Disclosed in 2013,” Secrecy News, October 22, 2012.

The latest report from the elite JASON science advisory panel is devoted to the subject of “compressive sensing.”  This term generally refers to the use of sensors for imaging (or other sensing) of an object in a manner that uses a limited subset of the available data in order to improve efficiency or conserve resources.

“Compressive sensing involves intentionally under-sampling an object or image, typically in a random manner, and then using a companion process known as sparse reconstruction to recover the complete object or image information…,” the JASON report says.

“Compressed sensing can conceivably lead to reductions in data link requirements, reductions in radar resources needed for radar image formation (thereby providing the radar more resources for its other functions such as target detection, target tracking, and fire control), increased angular resolution without commensurate increases in array costs, and increased fields of view without degradation in resolution…”

“Compressive sensing is not a ‘free lunch’,” the report cautions, “but always involves a tradeoff; reduced data may save measurement resources, but it also means a lower signal-to-noise ratio and possibly other artifacts, such as side lobes or false alarms.”

A copy of the new JASON report was obtained by Secrecy News.  See “Compressive Sensing for DoD Sensor Systems,” November 2012.

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Intellectual Property Rights Violations: Federal Civil Remedies and Criminal Penalties Related to Copyrights, Trademarks, and Patents, December 13, 2012

The President’s State of the Union Address: Tradition, Function, and Policy Implications, December 17, 2012

The Sustainability of the Federal Budget Deficit: Market Confidence and Economic Effects, December 14, 2012

Organized Retail Crime, December 11, 2012

Trade Adjustment Assistance for Workers, December 17, 2012

Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues, December 13, 2012

Carl D. Perkins Career and Technical Education Act of 2006: Background and Performance, December 5, 2012

Carl D. Perkins Career and Technical Education Act of 2006: Implementation Issues, December 14, 2012

Presidential Transition Act: Provisions and Funding, December 17, 2012

Title IX, Sex Discrimination, and Intercollegiate Athletics: A Legal Overview, December 7, 2012

Permanent Normal Trade Relations (PNTR) Status for Russia and U.S.-Russian Economic Ties, December 17, 2012

Military Construction, Veterans Affairs, and Related Agencies: FY2013 Appropriations, December 14, 2012

“Crimes reports” are official notifications that are sent by U.S. intelligence agencies to the Department of Justice when an unauthorized disclosure of classified information (or another potential federal crime) is believed to have occurred.  Crimes reporting is required by statute, by executive order, and by interagency agreement between the Attorney General and the heads of intelligence agencies.

“We file crimes reports every week,” said George J. Tenet in a discussion of leaks during his 1997 confirmation hearing to be Director of Central Intelligence.

“Say again?” said Sen. Robert Kerrey, who may have been unfamiliar with the term used by Mr. Tenet.

“We file crimes reports with the Attorney General every week about leaks, and we’re never successful in litigating one,” Mr. Tenet said.

In general, information or allegations concerning criminal activity by government employees should be reported to the Attorney General pursuant to 28 U.S.C. 535, “Investigation of crimes involving Government officers and employees.”

More particularly, Executive Order 12333 (section 1.6) on United States Intelligence Activities requires the heads of intelligence agencies to “report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned….”

The unusual term “crimes reports” derives from those procedures, which are set forth in a 1995 Memorandum of Understanding (MOU): Reporting of Information Concerning Federal Crimes, signed by Attorney General Janet Reno and the heads of six other agencies.

Though it is rarely cited in public discussions of leak policy, this MOU provides the structural framework for intelligence community reporting to the Justice Department regarding leaks of classified information, among other potential crimes.

“This Agreement requires each employee of the Agency to report to the General Counsel or IG facts or circumstances that reasonably indicate to the employee than an employee of an intelligence agency has committed, is committing, or will commit a violation of federal criminal law.”  Then, “If a preliminary inquiry reveals that there is a reasonable belief for the allegations, the General Counsel will follow the reporting requirements” for submission of “crimes reports.”

Intelligence agency employees are also required to report to the General Counsel of their agency information about certain violations of criminal law that are committed by persons who are not employees of an intelligence agency– specifically including “unauthorized disclosure of classified information.”

Crimes reports in such cases are to be submitted to the Department of Justice, which “shall maintain a record of all special crimes reports received from the Agency.”  If, in addition, the agency determines that no public disclosure of classified information would result from further investigation or prosecution of the matter, then it is also to be reported to the appropriate federal investigative agency.

“During the last several years, we have received roughly 50 crime reports each year of leaks to the media of classified information,” said Attorney General Janet Reno in June 2000 testimony before a closed hearing of the Senate Intelligence Committee.  (Although she said “crime report”, the preferred locution seems to be “crimes report.”)

“Because of the large number of leaks and the recognition that the Department and the FBI have limited investigative resources, intelligence agencies do not request criminal investigations of every unauthorized disclosure of classified information,” she said. “Instead, they request investigations of the most damaging leaks, usually around 20-25 cases a year for the last several years. We have opened investigations into almost all of the leaks requested by the victim agencies.”

However, AG Reno explained, “before opening a criminal investigation, the Criminal Division generally requires the agency requesting the investigation to submit the answers to eleven specific questions regarding what was leaked and who had access to it…. We believe that the eleven questions are essentially the equivalent of filing a police report.  They provide the information we need to determine whether a criminal investigation is likely to be productive and, if so, where to start.”

A copy of the DoJ Media Leak Questionnaire with the eleven questions is available here.

The figure of 50 crimes reports per year noted by the Attorney General in 2000 is consistent with George Tenet’s 1997 statement that crimes reports on leaks were being filed “every week.”

But a CIA Inspector General report in 2000 (on the handling of classified information by CIA director John Deutch) said that “Records of the [CIA] Office of General Counsel indicate there were an average of 200 written crimes reports submitted to DoJ each year for the period 1995-1998.”

If that is correct, then presumably the larger figure includes reports of federal crimes other than unauthorized disclosures.

Between September 2001 and February 2008, the Federal Bureau of Investigation initiated and closed the investigation of 85 reported leaks of classified intelligence information, “all of which concerned unauthorized disclosures of classified information to the media,” FBI Director Robert S. Mueller III told the Senate Intelligence Committee in 2008.  “None of these cases reached prosecution,” he said.  But as of February 2008, “21 such cases are [still] under investigation.”  (“Classified Intelligence Leaks, 2001-2008,” Secrecy News, July 15, 2009).

Between 2005 and 2009, U.S. intelligence agencies submitted 183 “referrals” to the Department of Justice reporting unauthorized disclosures of classified intelligence.  Based on those referrals or on its own initiative, the FBI opened 26 leak investigations, and the investigations led to the identification of 14 suspects.  (“FBI Found 14 Leak Suspects in Past Five Years,” Secrecy News, June 21, 2010).

Though it is hard to be certain, the most sustained and prolific leaking of Top Secret and compartmented information may have occurred during the late 1990s when such leaks appeared every few days in the reporting of Washington Times reporter Bill Gertz.

“It’s getting a little tiring to see this constant source of leaks to the Washington Times of classified intelligence documents,” State Department spokesman Nicholas Burns told the Weekly Standard in an otherwise admiring profile of Mr. Gertz in 1996. (“He Drives Them Crazy” by Matthew Rees, December 1, 1996.)

No arrests or prosecutions resulted from that “constant source of leaks,” though it eventually diminished.

Meanwhile, the current Congress is still considering new constraints on disclosure of classified information that go well beyond anything the executive branch has requested or considers prudent.

Robert Litt, the general counsel of the Office of the Director of National Intelligence, recently expressed some criticism of the congressional anti-leak initiative.

“We have discussed with the Intelligence Committee our concern that some of the proposals in their legislation really would not have any deterrent impact or punitive impact on leaks, and might in fact have an adverse impact on the free flow of information to the American people,” Mr. Litt told an American Bar Association meeting last month.

But it is not clear whether the Senate Intelligence Committee, which has not held an open hearing in almost a year, would be moved by appeals to “the free flow of information to the American people.”

The broad spectrum of policies relating to gun control is surveyed in a sadly timely, updated report from the Congressional Research Service, which also provides statistics on the prevalence and use of firearms in the United States.  See Gun Control Legislation, November 14, 2012.

Other new and updated CRS reports that Congress has not made available to the public include the following.

Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, December 11, 2012

Women in Combat: Issues for Congress, December 13, 2012

Intelligence Identities Protection Act, December 13, 2012

Maritime Territorial and Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for Congress, December 10, 2012

Outside Employment, “Moonlighting,” by Federal Executive Branch Employees, December 12, 2012

Follow-On Biologics: The Law and Intellectual Property Issues, December 6, 2012

Nuclear Energy: Overview of Congressional Issues, December 11, 2012

Fatherhood Initiatives: Connecting Fathers to Their Children, December 7, 2012

Emergency Assistance for Agricultural Land Rehabilitation, December 11, 2012

Bee Health: The Role of Pesticides, December 11, 2012

Updated below

In the George W. Bush Administration, Vice President Dick Cheney advanced the idea that the Office of the Vice President is not part of the executive branch, and that it was therefore exempt from the sort of oversight mechanisms — including classification oversight — which it might otherwise be (and previously was in fact) subject to.

Somewhat unexpectedly, this conception of a Vice Presidency that transcends the three branches of government reappears in the 2012 edition of the Plum Book, an official publication which lists thousands of employment positions for appointees within the federal government and which is published every four years.

“The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter,” the new 2012 Plum Book states in Appendix No. 5, reproducing identical language from the 2008 Plum Book.

This language was first introduced in 2004, when that year’s Plum Book also stopped listing most of the previously identified staff positions in the Office of Vice President, with the exception of the Chief of Staff (I. Lewis Libby) and one other assistant.

By 2008, even those two staff listings had been deleted from the Plum Book as the Office of the Vice President retreated into further concealment.

However, while replicating the language of Cheneyism, the latest Plum Book restores the deleted coverage of the Office of Vice President.

Thirteen current OVP positions are now listed.  And the Office of the Vice President appears — as it did prior to the Bush Administration — under the heading of the Executive Branch.

Update: The statement that the Vice Presidency “belongs neither to the Executive nor to the Legislative Branch but is attached by the Constitution to the latter” is derived from a 1961 Office of Legal Counsel opinion (at p. 11), which termed the question a “semantic problem.” Under the George W. Bush Administration, however, this semantic problem was invoked to alter established oversight practices in the direction of greater secrecy.

New and updated reports from the Congressional Research Service that have not been made publicly available include the following.

The 2010 Census: Count Question Resolution Program, December 7, 2012

An Analysis of STEM Education Funding at the NSF: Trends and Policy Discussion, December 12, 2012

Value-Added Modeling for Teacher Effectiveness, December 11, 2012

Teacher Quality Issues in the Elementary and Secondary Education Act, December 10, 2012

U.S. Farm Income, December 10, 2012

The National Flood Insurance Program: Status and Remaining Issues for Congress, December 10, 2012

Department of Defense Energy Initiatives: Background and Issues for Congress, Decembr 10, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, December 10, 2012

Navy Ford (CVN-78) Class Aircraft Carrier Program: Background and Issues for Congress, December 10, 2012

Coast Guard Polar Icebreaker Modernization: Background, Issues, and Options for Congress, December 10, 2012

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, December 10, 2012

The National Reconnaissance Office (NRO), the U.S. intelligence agency that is responsible for developing and operating the nation’s intelligence satellites, has released a redacted version of its Congressional Budget Justification Book for the current fiscal year in response to a Freedom of Information Act request.

“NRO systems allow users to quickly focus multiple sensors on almost any point on the globe to respond to emerging crises or operational requirements and provide persistent, multi-INT coverage,” the budget document says.

“With these capabilities the NRO is an indispensable contributor to national policymakers, the overall national intelligence effort, and the war on terrorism and ongoing military operations…. In addition to their primary intelligence missions, NRO systems increasingly support Homeland Security requirements.”

During the present budget year, the NRO said it is working “to improve the responsiveness of existing systems.” But it is also “developing new product types integrating multi-platform, multi-INT, and multi-domain data to maximize overhead performance and synergistically address the nation’s highest priority issues.”

The agency told Congress it has had “successes developing new operational concepts and sensor data processing tools enabling legacy satellites, designed against different collection requirements and operating well beyond their design lives, to effectively address current intelligence problems.”

The large majority of the NRO budget document has been redacted as classified and was withheld from public disclosure.  But meaningful glimmers of fact or assertion can still be found in what has been released.  For example:

NRO said it has accomplished a “recent 88 percent reduction in collection-to-analyst dissemination timelines.”

NRO expects to complete 15,000 initial and periodic security clearance reviews during the current fiscal year.

The budget document says the funding request for the NRO Inspector General was cut by 37% this year. The NRO said this reduction could be managed although sharp cuts in future budgets were discouraged:  “There is no greater time when an organization is in need of oversight than in times of significantly decreasing budgets. It is during difficult fiscal decline that fraud is most likely to occur, when management controls weaken, and when unintended performance risks take root.”

The current NRO research agenda includes efforts “to take advantage of massive data sets, multiple data sources, and high-speed machine processing to identify patterns without a priori knowledge or pattern definition; [as well as] visualization and presentation of patterns for human interpretation to enable identification of normal and abnormal behaviors to detect, characterize, and identify elusive targets.”

The redacted budget document devotes at least cursory attention to NRO strategic planning, human resources, administration, facilities, information technology, and research and development, among other topics.  Actual NRO budget numbers were not disclosed.