Increasing calls for intelligence support and continuing innovations in intelligence technologies combine to create significant challenges for both the executive and legislative branches. Intelligence, surveillance, and reconnaissance (ISR) systems are integral components of both national policymaking and military operations, including counterterrorism operations, but they are costly and complicated and they must be linked in order to provide users with a comprehensive understanding of issues based on information from all sources.
Relationships among organizations responsible for designing, acquiring, and operating these systems are also complicated, as are oversight arrangements in Congress. These complications have meant that even though many effective systems have been fielded, there have also been lengthy delays and massive cost overruns. Uncertainties about the long-term acquisition plans for ISR systems persist even as pressures continue for increasing the availability of ISR systems in current and future military operations and for national policymaking. These challenges have been widely recognized.
A number of independent assessments have urged development of “architectures” or roadmaps setting forth agreed-upon plans for requirements and acquisition and deployment schedules. Most observers would agree that such a document would be highly desirable, but there are significant reasons why developing such an architecture and gaining an enduring consensus remain problematic.
Several nuggets of interest are presented in the latest biennial report from the Senate Select Committee on Intelligence, summarizing the Committee’s oversight activities in the 112th Congress:
* The Director of National Intelligence abruptly cancelled a multi-year effort to establish a single consolidated data center for the entire Intelligence Community a year or so ago, in favor of a migration to cloud computing.
* Under criticism that the number of intelligence contractor personnel has grown too high, too fast, intelligence agencies have been cutting the number of contractors they employ or converting contractors to government employees. But some of those agencies have continued to hire additional contractors at the same time, resulting in net growth in the size of the intelligence contractor workforce.
* A written report on each covert action that is being carried out under a presidential finding is provided to the congressional committees every quarter.
The March 22 report also provides some fresh details of the long-awaited and still unreleased Committee study on CIA’s detention and interrogation program. That 6,000 page study, which was completed in July 2012 and approved by the Committee in December 2012, is divided into three volumes, as described in the report:
“I. History and Operation of the CIA’s Detention and Interrogation Program. This volume is divided chronologically into sections addressing the establishment, development, and evolution of the CIA detention and interrogation program.”
“II. Intelligence Acquired and CIA Representations on the Effectiveness of the CIA’s Enhanced Interrogation Techniques. This volume addresses the intelligence attributed to CIA detainees and the use of the CIA’s enhanced interrogation techniques, specifically focusing on CIA representations on how the CIA detention and interrogation program was operated and managed, as well as the effectiveness of the interrogation program. It includes sections on CIA representations to the Congress, the Department of Justice, and the media.”
“III. Detention and Interrogation of Detainees. This volume addresses the detention and interrogation of all known CIA detainees, from the program’s inception to its official end, on January 22, 2009, to include information on their capture, detention, interrogation, and conditions of confinement. It also includes extensive information on the CIA’s management, oversight, and day-to-day operation of the CIA’s detention and interrogation program,” according to the report’s description.
“I have read the first volume, which is 300 pages,” said CIA Director John O. Brennan at his February 7 confirmation hearing. “There clearly were a number of things, many things, that I read in that report that were very concerning and disturbing to me, and ones that I would want to look into immediately, if I were to be confirmed as CIA Director.”
A Department of Defense instruction issued on Friday reinforces the policy that the DoD Office of Inspector General (OIG) is to have full access to all records, including classified records, that it needs to perform its function, and that no DoD official other than the Secretary himself may block such access.
“The OIG must have expeditious and unrestricted access to all records…, regardless of classification, medium (e.g. paper, electronic) or format (e.g., digitized images, data) and information available to or within any DoD Component, and be able to obtain copies of all records and information as required for its official use once appropriate security clearances and access are substantiated for the OIG DoD personnel involved,” the instruction states. See “Office of the Inspector General of the Department of Defense Access to Records and Information,” DoD Instruction 7050.03, March 22, 2013.
By stressing that the Inspector General’s access is independent of a record’s classification, medium or format, this language elaborates and bolsters the text of a previous version of the instruction, which did not make those distinctions.
Furthermore, the new instruction specifies, “No officer, employee, contractor, or Service member of any DoD Component may deny the OIG DoD access to records.” Only the Secretary of Defense may invoke a statutory exemption to limit IG access to certain intelligence, counterintelligence, or other sensitive matters, which he must then justify in a report to Congress.
As a result these robust access provisions, the DoD Inspector General is well-positioned to conduct internal oversight not only of the Pentagon’s extensive classified programs, but also of the classification system itself, particularly since the Department of Defense is the most prolific classifier in the U.S. government.
In fact, the Inspector General of each executive branch agency that classifies national security information is now required by the Reducing Over-Classification Act of 2010 to evaluate the agency’s classification program. Each Inspector General was directed “to identify policies, procedures, rules, regulations, or management practices that may be contributing to persistent misclassification of material.”
The first evaluation is due to be completed by September 30, 2013. Vexingly, the Act did not provide a functional definition of “over-classification” or “misclassification.” Therefore, the first hurdle that the IG evaluations must overcome is to determine the nature and the parameters of the problem of over-classification.
Last December, in a newly disclosed response, John P. Fitzpatrick, the current ISOO director, concluded that Mr. Leonard’s complaint did not warrant the sanctions that Mr. Leonard had urged. Neither the original classification of the NSA document, titled “What a Wonderful Success,” nor its continued classification “rise to the level of willful acts in violation of the Order,” Mr. Fitzpatrick wrote in his December 26, 2012 response.
With that, the matter was officially closed. But the divergent views underlying the complaint remain unresolved and continue to fester.
“I have devoted over 34 years to Federal service in the national security arena, to include the last 5 years of my service being responsible for Executive branch-wide oversight of the classification system,” Mr. Leonard wrote in his 2011 complaint. “During that time I have seen many equally egregious examples of the inappropriate assignment of classification controls to information that does not meet the standards for classification; however, I have never seen a more willful example.”
Last year, DC District Judge Richard W. Roberts ordered the U.S. Trade Representative to disclose a classified document to a FOIA requester because, he said, the classification of the document was not properly supported. That ruling in Center for International Environmental Law v. Office of the U.S. Trade Representative was a startling judicial rebuff to executive classification authority of a sort that had not been seen in many years, and the government quickly appealed.
In oral arguments in the DC District Appeals Court last month, government attorneys all but declared that a court has no power to overrule an executive branch classification decision. The transcript of that February 21 hearing has just become available.
Judge Roberts’ “substitution of [his] judgment about likely harm to foreign relations [that could ensue from disclosure] fails to give the deference that’s due to the Executive in this sensitive area of foreign relations and national security, and is entirely inconsistent with this Court’s consistent case law over many decades that emphasizes the need for such deference,” argued H. Thomas Byron, III, on behalf of the U.S. Trade Representative.
Circuit Court Judge Brett Kavanaugh asked Mr. Byron whether there were any circumstances in which a court could reject a classification claim.
“When do you think a Court could ever disagree with the Executive’s determination in this kind of case?” Judge Kavanaugh asked.
Mr. Byron that if the agency’s declarations in support of classification are logical and plausible, then the agency is entitled to judicial deference.
“Isn’t that going to cover 100 percent of the cases?” Judge Kavanaugh asked.
“I certainly think, Judge Kavanaugh, that the Executive would not submit a declaration that was not logical or plausible,” Mr. Byron replied.
Then he went even further and suggested that the executive branch has exclusive constitutional authority over classification policy.
Judge Kavanaugh was inquiring how the government would respond to an argument made in an amicus brief filed by media organizations contending that Congress had mandated judicial review of classification when it amended the FOIA in 1974 in order to enable Courts to review executive classification judgments. Not only that, but when President Ford vetoed the measure, Congress overrode the veto.
Mr. Byron said, “The question is whether those changes [i.e. the 1974 amendments] altered the constitutionally required deference to the Executive in this area under the Separation of Powers Doctrine,” suggesting that the congressional override of President Ford’s veto was meaningless and without effect.
“That’s interesting,” said Judge Kavanaugh. “You don’t think Congress could put the courts in the position of second guessing” the executive?
“Well, when it comes to predictive judgments about harm to national security and foreign relations I think that’s a very difficult question,” Mr. Byron said.
“I agree,” Judge Kavanaugh replied.
Cogent arguments to the contrary were made by attorney Martin Wagner on behalf of the Center for International Environmental Law at the hearing and can be found in the transcript. An account of the hearing from the Reporters Committee on Freedom of the Press is here.
Steven Aftergood is a senior research analyst at the Federation of American Scientists. He directs the FAS Project on Government Secrecy, which works to reduce the scope of government secrecy and to promote reform of official secrecy practices.
He writes Secrecy News, an email newsletter (and blog) which reports on new developments in secrecy policy and provides direct public access to official records of policy value that have been suppressed, withdrawn or that are simply hard to find.
In 1997, Mr. Aftergood was the plaintiff in a Freedom of Information Act lawsuit against the Central Intelligence Agency which led to the declassification and publication of the total intelligence budget ($26.6 billion in 1997) for the first time in fifty years. In 2006, he won a FOIA lawsuit against the National Reconnaissance Office for release of unclassified budget records.
Mr. Aftergood is an electrical engineer by training (B.Sc., UCLA, 1977) and has published research in solid state physics. He joined the FAS staff in 1989.
He has authored or co-authored papers and essays in Scientific American, Science, New Scientist, Journal of Geophysical Research, Journal of the Electrochemical Society, and Issues in Science and Technology, on topics including space nuclear power, atmospheric effects of launch vehicles, and government information policy.
For his work on confronting government secrecy, Mr. Aftergood has received the Electronic Frontier Foundation Pioneer Award (2010), the James Madison Award from the American Library Association (2006), the Public Access to Government Information Award from the American Association of Law Libraries (2006), the Hugh M. Hefner First Amendment Award from the Playboy Foundation (2004), and the Golden Candle Award from Open Source Solutions (1997).
The Federation of American Scientists, founded in 1945 by Manhattan Project scientists, is a non-profit national organization of scientists and engineers concerned with issues of science and national security policy.