Archive for May, 2012

Secrecy News

May 31, 2012

CONGRESS WILL ALLOW ENERGY DEPT TO RECLASSIFY NUKE INFO

Congress is poised to amend the Atomic Energy Act to allow certain nuclear weapons-related information that is classified as Formerly Restricted Data (FRD) to be restored to the Restricted Data (RD) category.

FRD and RD are both classified under the Atomic Energy Act, but FRD generally pertains to the utilization of nuclear weapons, whereas RD mostly deals with nuclear weapons design information.

Last year, Secretary of Energy Steven Chu wrote to Congress to propose legislation that would permit moving FRD back into the RD category, something that is currently not permitted by the Atomic Energy Act, in order to provide improved security.  (Dept of Energy Wants to Reclassify Some Info as ‘Restricted Data’, Secrecy News, January 17, 2012.)

“There is sensitive nuclear weapons design information embodied in some FRD… that should be subject to the more stringent security protections afforded RD,” Secretary Chu wrote.

The requested legislative language was approved by the House in its version of the FY2013 National Defense Authorization Act (HR 4310, section 3153), and was also incorporated in the Senate Armed Services Committee markup of the bill (S. 2467, the full text of which is not yet available).

The legislation would also permit information about foreign atomic energy programs known as Transclassified Foreign Nuclear Information (TFNI) to be transferred to the RD category, with the consent of the Director of National Intelligence.

The immediate public impact of the policy change would be negligible, since both FRD and RD are classified and in practice are equally inaccessible to the public.

But in the longer term, the move could have positive implications.  It would facilitate the elimination of the cumbersome and superfluous Formerly Restricted Data (FRD) category, a move that has been favored by critics for years. Doing so would both streamline the unworkably complicated classification apparatus and help to expedite the declassification process.

The entire FRD category could in principle be depopulated if the most sensitive information were restored to RD, as Congress will soon permit; if the least sensitive information (e.g. information about historical nuclear depot sites that no longer exist) were declassified; and if the rest were “transclassified” to national security information, i.e. the “regular” (non-Atomic Energy Act) classification system.

Eliminating FRD would in turn reduce one of the most vexing barriers to declassification of historical government records, which by law must be surveyed for the presence of FRD (and RD) before they can be publicly released.

However, the removal of information from the FRD category (either to declassify or transclassify it) requires the consent of both the Department of Energy and the Department of Defense.  To gain the cooperation of both agencies, it is likely that White House leadership would be needed.

CONGRESS’S CONTEMPT POWER, AND MORE FROM CRS

Newly updated reports from the Congressional Research Service include the following.

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, May 8, 2012

The Financial Action Task Force: An Overview, May 9, 2012

Reauthorization of the Export-Import Bank: Issues and Policy Options for Congress, May 7, 2012

The National Nanotechnology Initiative: Overview, Reauthorization, and Appropriations Issues, May 22, 2012

U.S.-EU Cooperation Against Terrorism, May 21, 2012

DECLASSIFICATION OF THE HISTORICAL BACKLOG – A CORRECTION

Secrecy News stated yesterday that the decline in the number of pages reviewed for declassification last year (as reported by the Information Security Oversight Office) means that the goal set by President Obama of reviewing the entire backlog of 25 year old historical records by December 2013 will not be achieved.

But that is not correct, an Archives official said.  Progress in reducing the backlog is independent of progress in conducting declassification review since only a fraction of the hundreds of millions of pages of backlogged records require formal declassification “review.”  (In theory, at least, most of them have already been “reviewed,” and reported as such in previous ISOO reports).

Instead of being “reviewed” for declassification, the official said, the backlogged records are being “assessed” for the presence of exempted information (such as RD or FRD), in which case they will not be released.  The records are also undergoing “declassification processing” for public access.  But not “declassification review.” Only in a minority of cases are backlogged records being referred for “declassification review.”

We regret adding confusion to an already confusing situation.

In contrast to our somber view of the contents of the new ISOO annual report, the National Archives issued a rather upbeat press release on the report.

But the Archives press release does not mention that total declassification activity declined in 2011 from the year before, which seems like a significant omission.

As to whether the President’s December 2013 deadline for elimination of the backlog of historical records will be met, with or without “review,” it is hard to be optimistic.

The National Declassification Center stated in its last semi-annual report that the diversion of resources necessary to screen for Restricted Data and Formerly Restricted Data in the backlogged records “will certainly impact our ability to complete all declassification processing by the deadline.”

But it would be a mistake to anticipate failure, the Archives official said, adding “It’s not over until it’s over.”

National Fishing and Boating Week June 2-10, 2012

May 30, 2012

National Boating & Fishing Week

What better way to celebrate National Fishing and Boating Week, coming up June 2-10, than to take someone fishing—for FREE!

Most states offer Free Fishing Days (no fishing license required) to encourage veteran fishermen—like you—to introduce non-anglers to this wonderful sport.

You can get all the details at the Take Me Fishing website, including suggestions on just where to fish in your area.

And don’t miss out on the free fishing events going on across the country in the coming days, like fishing clinics for kids, derbies, tournaments, regattas and festivals. Find the one nearest you right here!

In the meantime, visit the Take Me Fishing website with your young anglers. Introduce them to Little Lunkers, where they can play great games such as Hatchery Mastery and Create-A-Fish, and maybe learn a few things about fish and fishing in the process.

For Pakistani truckers, NATO route row is all about the money

May 30, 2012

By Imtiaz Shah | Reuters

KARACHI (Reuters) – Pakistani truck drivers who deliver supplies to Western forces in Afghanistan seethe whenever they recall a cross-border NATO air attack that killed 24 Pakistani soldiers last year.

Despite their anger, financial survival outweighs nationalist sentiment and the shame of helping what many see as the enemy.

The drivers hope that talks between the United States and Pakistan on reopening the routes, which were closed six months ago in protest over the raid, will soon produce a breakthrough.

They are eager to get back on the road, even though they will again risk running into attacks by Taliban militants who violently oppose the movement of goods to NATO through Pakistan.

Malik Abdul Raoof, 23, recalled how militants in dark clothes clutching AK-47 assault rifles often stopped and threatened him near the Afghanistan-Pakistan border.

“They asked ‘why do you take supplies to the infidel Americans?’. They said ‘you are an American informer’,” he told Reuters at a massive makeshift truckers’ parking lot that stretches for miles (km) along the coast in Pakistan’s biggest city, Karachi.

“They made me recite Koranic verses, quizzed me on how Muslims pray. When they let me go they told me to grow a beard. I am scared and I don’t like it but I have to earn (money).”

The al Qaeda-linked Taliban routinely open fire on trucks. Casualties are limited, but the attacks are dramatic. Bullets puncture fuel tanks, igniting huge fires.

Militants also set off homemade bombs to destroy container trucks packed with food, clothes and other items for NATO.

Over 1,000 vehicles have been destroyed by militants or criminal gangs in the last decade, according to the All Pakistan Oil Tankers Association.

Still, thousands of drivers are itching to get back to work to fetch 20,000-25,000 rupees ($215-269) per round trip.

To break the monotony, they play cards on cloth sheets spread on the dusty ground, listen to music and repair and paint their run-down vehicles. Some just sleep the time away in the shade of their trucks.

“DESPICABLE, FORBIDDEN” INCOME

The November NATO attack and Pakistan’s closure of the routes – which account for just under one-third of all cargo that NATO moves into Afghanistan – plunged ties between Islamabad and Washington to their lowest point in years.

The supply lines are considered vital to the planned withdrawal of most foreign troops from Afghanistan before the end of 2014.

U.S. and Pakistani negotiators are deadlocked on transit fees for container and fuel trucks. Pakistani officials have denied reports Islamabad is demanding unreasonable amounts.

Idle drivers care little about Pakistan’s stance, or efforts to repair ties with the United States, the source of billions of dollars in aid. It all comes down to their own bottom line.

“The United States is responsible for killing our soldiers. The culprits should be shot dead,” said Mohammed Nawaz, 24, looking across a sea of trucks. “I consider the money made from driving NATO trucks despicable, forbidden. But I’m desperate.”

NATO, for its part, has been diversifying its supply lines into Afghanistan.

After a string of disruptions, the alliance and the U.S. military decided to reduce their reliance on Pakistan, turning instead to routes that pass through either Russia or the Caucasus across central Asia into northern Afghanistan.

That could spell bad news for those drivers who have become shady entrepreneurs of danger along the two routes through Pakistan – one across the Khyber Pass to Kabul, and another crossing the Baluchistan province to Kandahar.

Senior officials at the All Pakistan Oil Tankers Association said some destroy their own trucks and claim it was a Taliban attack to collect insurance money.

“The fight is all about money, at every level. The governments, the Americans, the workers (truck drivers),” said Shafiq Kakar, a senior member of the association.

Some truckers stage explosions and pretend NATO goods are lost in attacks, then sell part of the consignment to traders, said association officials.

“I am praying that NATO supplies are resumed soon so that my business can take off again,” said one trader in the northwestern city of Peshawar who does business with corrupt truckers and contractors.

“A lot of the material stolen from containers, especially uniforms and boots, is (even) bought by the Taliban’s people.”

(Additional reporting by Jibran Ahmad in PESHAWAR; Writing by Michael Georgy; Editing by John Chalmers and Daniel Magnowski)

Systema Strikes, Fists and Knowledge

May 30, 2012

Earlier this year, I attended Vladimir’s Seminars on Strikes Physical and Psychological Preparation. And once again Vlad proved why Systema is the BEST.

Many people probably thought that a seminar on strikes would consist of just being hit; well it was much more than that. I will try to explain the TRUTH and KNOWLEDGE I discovered. It has been said that you can see my eyes but you don’t know what I am seeing, you can see my tongue and not know what I am tasting. Once you attend at Systema HQ you really know that school is in. Vlad gave a detailed description on what he was about to cover, why and what you can expect. His calmness slowly easing the apprehension that I felt, I suspect many others did too after viewing the DVD on Strikes.

One has to learn to pay close attention to what Vlad says and does because Vlad teaches through three different languages: his words, his body language and the language of courage and inner strength.

We began with breathwork and walking exercise, but without looking down. That exercise proved to be great when the first round of striking came. I was able to strike my partner without looking at where my fist was being placed, therefore, not letting him to see where the strikes were going.

Pushups and fist-walking on my partner’s body made me understand how to achieve sensitivity in my fists. When I felt the soft areas, it was like my fists wanted to go right through him, and when I felt bone or hard spots, I was able to adjust the amount of tension in my fist to avoid hurting myself.

To explain the day’s events I would say it was like learning to row a boat. We started out in very calm waters (locating the origins and patterns of breath and tension). Then a few unique strikes with direction (choppy waters). Then back to calm waters (with Systema core exercises easing the apprehension of being struck). I realized that as the time went by, the apprehension really dissipated. I finally found out why my hammer fist was more potent than my straight punch. Every now and then Vlad would say “make the fist heavy” and showed what he meant. But it was not until day 2 that the lights really came on. I am now somewhat laughing at myself, thinking that on the previous seminar, I thought that I had understood Systema. Vlad proved me wrong, in a good way. Saturdays session on strikes and Sundays session were two different lessons, but on the same subject. Learning something in Systema is understanding a particular Systema subject, but not Systema on the whole, because Systema has multiple layers, it is very very deep. Systema gives you the freedom to be truthful to thy self, enabling you to be truthful to others and share the knowledge. Knowledge we can take with us throughout our lives.

The part of the lesson where Vlad was demonstrating built-in angles in our bodies, it was quite amazing. If you imagine a Tank, APC or any armored type vehicle, you would see sharp angles incorporated into their design, thus, greatly improving this type of vehicles survival abilities. So there Vlad was being punched at and on, and at that moment, it seems as though he took on a slightly different stance. A very precise 45 degree, and his posture, more erect when the strikes came (unlike traditional martial arts that use blocks with strikes). He was able to deploy these angles in his body with his breath work, by the way of subtle movements and at times allowing the strikes to hit and deflect, suppressing and at the same time giving him the capability to counter the strikes. Not only counter, but deliver a surgical strike or two in one movement, which causes a mental disruption, as though he was fighting on two fronts (the mental and physical). In a sense he was like a tank. He made and maintained contact while staying in the moment and pushing through. While his body language was saying “guys, look there are times when situations arise outside of our control, but one thing we always have control over is how we respond”, this is how we survive.

While doing facial strikes, a Systema HQ instructor Max mentioned that my fists were dry. I have never heard the term before, but he explained and showed it as having no power in the fists. That was my moment of enlightenment. When Max touched my face with his fist, it felt as though a weight was against my face. His response was light as a feather, but his fists, heavy as lead. At that moment I can recall looking right into his eyes and I saw Mikhail’s FIST and that swift movement from Vlad and Sergey from Movement and Precision DVD. Big respect to Max for transferring those images to my mind through his fist.

In closing, I would like to say, the seminar taught me that Courage is not in blindly overlooking danger, but in seeing it and conquering it.

Pakistan doctor guilty of militancy, not CIA links

May 30, 2012

By RIAZ KHAN | Associated Press

PESHAWAR, Pakistan (AP) — A Pakistan doctor who assisted the CIA in tracking down Osama bin Laden was sentenced to 33 years in prison for conspiring with an Islamist militant commander, a verdict that could make it more difficult for Washington to argue for his release.

The judgment against Shakil Afridi debunked the widely held assumption that he had been convicted for his involvement with the American spy agency.

The decision referred to unspecified evidence that Afridi had “acted” with foreign intelligence agencies, but went on to say any charges related to that couldn’t be considered because the court didn’t have jurisdiction. The Associated Press obtained a copy of the five-page document, first reported by Pakistan’s Dawn newspaper, on Wednesday.

Earlier this week, Afridi’s family and lawyers said he was innocent and would appeal, but said they had not yet seen the court verdict. They refused to comment on his relations with the CIA. The trial was carried out in a court in the country’s tribal regions close to Afghanistan. A political official, in consultation with tribal elders, ruled on the case in secret.

The United States has called for Pakistan to release Afridi, and his punishment has become another flashpoint issue in the fractured relations between the two countries. Pakistan’s army was outraged by the unilateral U.S. raid that killed bin Laden in May 2011 because it was a violation of the country’s sovereignty and added to perceptions it was a sponsor of terror.

Afridi ran a vaccination campaign on behalf of the CIA to collect blood samples from bin Laden’s family at a compound in Abbottabad where U.S. commandos killed the al-Qaida leader. It was unclear whether he succeeded, but U.S. officials have publicly said he helped the effort to track bin Laden.

The fact Afridi was technically convicted for militancy, not helping the CIA, could complicate Washington’s efforts to press for his release. Pakistan could argue that his trial was an internal matter that has nothing to do with the United States.

The verdict said Afridi was guilty of conspiring with a militant group led by commander Mangal Bagh. It said he gave money to the group and treated its leaders at a hospital in Khyber when he was stationed there. According to unnamed witnesses, he did this because of his “deep affiliation with the group.” Others, also unnamed, said the group planned terrorist attacks in Afridi’s office.

The verdict, which was passed down last week, found Afridi guilty of “conspiring against the state” and other charges.

Pakistani officials didn’t attempt to correct widespread reports that the charges referred to his work with the CIA. The verdict triggered anger in the United States and elsewhere, with many questioning how helping kill bin Laden — a sworn enemy of Pakistan — could be seen as working against the state.

The full text of the verdict means Pakistan can now, technically at least, deflect that criticism.

Afridi’s motivation for working with the CIA or whether he was aware who was employing him has never been established. He was once the top medical officer in the Khyber region.

Speaking last week, a friend said he had once been kidnapped by Mangal Bagh’s group and paid a heavy ransom for his release. The friend didn’t give his name because he didn’t want to attract attention to himself.

Intelligence News YOU may have missed

May 30, 2012

Gareth Williams
►►Pathologist says MI6 spy may have died alone. Leading British pathologist Richard Shepherd has told the BBC there is “credible evidence” that MI6 officer Gareth Williams died alone. Williams, a mathematician in the employment of Britain’s signals intelligence agency, GCHQ, was found dead in a padlocked sports bag at his home in Pimlico, London, in 2010. According to Dr. Shepherd, bags identical to the one Williams was found in, can be locked by someone inside the bag.
►►Turkey may indict Israeli officers Over Gaza flotilla raid. A prosecutor in Turkey has prepared indictments and recommended life sentences for four senior Israeli officers over the killing of nine activists aboard a Gaza-bound aid flotilla forcibly intercepted in international waters by Israeli commandos two years ago. The indictments, which have not been formally approved by the Turkish judiciary, could further strain relations between Turkey and Israel, which were once close but which deteriorated badly after the flotilla raid on May 31, 2010.
►►Czech secret services alarmed by drastic drop in funding. The BIS, Czech Republic’s counterintelligence service, is used to operating on Kč 1.149 billion (around US$60 million). According to the Finance Ministry’s plan, the agency’s budget will be reduced to Kč 911 million (US$45 million) in 2013. The news has prompted former interior minister and current member of parliament František Bublan to accuse the government of effectively leading to the spy service’s “liquidation”. But Finance Minister Miroslav Kalousek argues that all state institutions must cut back in order to help achieve a balanced budget by 2016.

New Israeli special forces command escalates covert action

May 30, 2012

Benny Gantz
In recent months, intelNews has paid particular attention to senior Israeli security officials, or former officials, who routinely caution against plans for an Israeli military attack on Iran. These include Amos Yadlin, former head of Israel’s Military Intelligence directorate, and former Mossad Directors Meir Dagan and Tamir Pardo, who believes that a nuclear-armed Iran “would not be an existential threat to Israel”. But such current or former Israeli officials, who view a possible Israeli military attack on Iran as catastrophic, should not be seen as advocating pacifist views. On the contrary, they caution against an open Israeli military attack on Iran, favoring instead a covert-action approach. There are now signs that, under pressure by the United States, the Israeli administration of Benjamin Netanyahu is gradually heeding such advice. One such indication is to be found in the increasingly instrumental role played by Benny Gantz, the Chief of General Staff of the Israel Defense Forces. Lieutenant-General Gantz, who rose to the position of Israel’s most powerful soldier in February of 2011, arguably represents the most hawkish wing of the Israeli military. He is also one of the most vocal adherents of Israeli military supremacy in the Middle East ‘by any means necessary’. In April, he spoke publicly to confirm that, under his leadership, the Israeli military has “escalated special operations beyond the country’s borders”. Since then, he has refused to provide details of such operations, which he has described as “highly classified”. But an article published earlier this month in The Jerusalem Post discusses the rise in Israeli covert operations in the context of a new Israeli special forces command called Deep Corps. According to The Post, the new command was founded in December under the close supervision of Gantz, who is himself a former paratrooper and a member of Israel’s elite Sayaret Matkal unit, which is modeled after the British Army’s Special Air Service. Deep Corps, which is currently under the command of another Sayaret Matkal former member, Major General Shai Avitai, is reportedly designed to integrate all Israeli special forces units in a single command. Its mission is to carry out “strategic strikes deep inside hostile territory”. In Gantz’s own words, Deep Corps is designed to strike “beyond the immediate and intermediate circles of enemy states, to the so-called outer circle of threats”. Such regions are said to include, not only the Middle East and its environs, but the Horn of Africa and even parts of Central Asia. The Post article explains that Gantz’s tactical philosophy is to deploy the new command in “the operational arena between wars”, namely “a war between wars, [which] is much more quiet and extends to much wider circles”. Gantz adds that, in his view, 2012 will be “a critical year in the confrontation with Iran”.

World in the Balance: The Perilous Months of June-October, 1940 (Book Review)

May 29, 2012

 

World in the Balance: The Perilous Months of June-October, 1940, by Brooke C. Stoddard

Washington: Potomac Books, 2011. Pp. xiii, 254. Illus., notes, biblio., index. $29.95. ISBN: 978-1-59797-516-2.

 

In World in the Balance, Brooke C. Stoddard,former editor of Military Heritage, takes a fresh look at the desperate months from Dunquerque and the Fall of France to the defeat of the Luftwaffe over Britain and Hitler’s decision to abandon Operation Sealion.

Although the story of “Their Finest Hour” has been told, and well told, before, its intricate complexities, high drama, and enormous importance are such that Stoddard is able break new ground by exploring some hitherto obscure aspects of the great crisis.  He looks at secret negotiations among the English, French, Germans, Spanish, Italians, Poles, Irish, Soviets, and, of course, Americans, in various combinations, and provides a discussion of the long-term origins of radar, centralized air combat control, code-breaking, and other technologies and techniques that were vital to British success in the air war.  Stoddard also gives us looks at many interesting people, from Churchill and Hitler, through some well-known secondary figures such as Jodl, Somerville, Darlan, Franco, and Dowding, to obscure inventors, bureaucrats, politicians, and warriors who contributed in many small ways to the overall outcome.

A good read for those interested in the war in Europe

Buy it on Amazon

Intelligence News YOU may have missed

May 29, 2012

Shakil Afridi
►►Turkey suspects bird of being Israeli spy. News agencies are poking fun at Turkish authorities, who say they believe that they have found a bird used for espionage purposes by Israel. An investigation was reportedly launched in Ankara several days ago, after a farmer discovered a dead Merops Apiaster, commonly known as the European Bee-Eater, in his field. The bird had a ring reading “Israel” on one of its legs. The reports undoubtedly lend a certain degree of irony to the announcement that Israel Aerospace Industries (owned by the Israeli government) is in fact developing insect drones for indoor surveillance.
►►CIA discloses names of 15 killed officers. The CIA has disclosed the names of 15 of its operatives killed in the line of duty over the last 30 years, the result of a new effort to honor fallen officers. Fourteen of the dead already had a star inscribed in their memory on the CIA’s wall of honor in the lobby of the old headquarters building on the agency’s Langley, VA, campus. But their names had been withheld. In a closed agency ceremony Monday their names were added to the Book of Honor, which accompanies the stars. In addition, a new star was added this year for Jeffrey R. Patneau, who died at age 26 in Yemen in 2008 from injuries sustained in a car accident. He was the 103rd CIA officer recognized as having died in the line of duty.
►►Pakistan convicts doctor who helped CIA find bin Laden. A Pakistani court imposed a 33-year sentence Wednesday on Shakil Afridi, a doctor who assisted the CIA hunt for Osama bin Laden. Afridi, a government surgeon in the semiautonomous Khyber Agency along the border with Afghanistan, was convicted of treason for using a vaccination drive to try to gather DNA samples at the compound where bin Laden was in hiding. His conviction prompted dismay among US officials, who said that the punishment will lead to cuts in aid. According to a Pakistani prison official, Afridi “has been kept away from other prisoners to avert any danger to his life”.

Secrecy News

May 29, 2012

INSTEAD OF RAMPING UP, DECLASSIFICATION ACTIVITY SLOWED IN 2011

The total number of pages of government records that were reviewed for declassification last year, as well as the number that were actually declassified, declined slightly from the year before, according to the 2011 annual report from the Information Security Oversight Office (ISOO) that was published today.

Not only is this trend line unfavorable in itself, it also means that the goal set by President Obama of reviewing the entire backlog of 25 year old historical records awaiting declassification by December 2013 is out of reach and will not be achieved.

The latest ISOO annual report, like its predecessors, is a sometimes bewildering of collection of raw statistics about government classification and declassification activity, some of which have little or no meaning or are actually misleading.

So, for example, ISOO reports that there were precisely 127,072 original classification decisions to create new secrets throughout the government in 2011.  But upon close inspection this combined total of all agency classification actions conveys no meaningful information since the individual agencies exercise their classification authority in different and incommensurate ways.  Thus, CIA and ODNI each generated only four original classification decisions — 0.003% of the total — though they are among the most secrecy-intensive agencies in government.  Meanwhile, the much less secretive Department of State supposedly accounted for 48,968 original classification decisions last year, or 38% of all new secrets.  These figures are simply not an accurate representation of executive branch classification activity as it exists in practice, and adding them together does not improve their quality.

The ISOO report also indicates that derivative classification activity — that is, the restatement in new form of information that was previously classified — increased sharply by 20% over the previous year.  But the report warns that the new data reflects revised reporting requirements, so that it cannot be properly compared to previous years’ numbers.  In other words, it has no particular significance or utility.

To its credit, ISOO seems cognizant that the current reporting format is not very useful or informative.  The report states that ISOO “has begun to re-evaluate the elements of information that the executive branch agencies are asked to provide for this annual report” and that the “re-evaluation covers most aspects of the reporting process.”

Still, some of the data presented by ISOO are striking, though their actual meaning needs to be teased out by the reader.

So, for example, a total of 52,760,524 pages were reviewed for declassification in 2011, and 26,720,121 of those pages were declassified.  These are not trivial numbers, but they are a reduction from the 2010 total of 53,087,345 pages reviewed and 29,050,290 pages declassified.  More significantly, the reported level of activity means that the President’s 2009 goal of reviewing 400 million pages of classified records of historical importance by December 2013 cannot and will not be achieved.  Instead of ramping up to meet the presidentially-mandated requirement — to review an average of 100 million pages per year for four years — declassification activity last year actually leveled off and declined. Curiously, the new ISOO report to the President made no mention of this disappointing fact.

The ISOO report does make the important observation that, as in past years, the majority of agency classification determinations that were appealed by requesters to the Interagency Security Classification Appeals Panel were overturned by the Panel in whole or in part, resulting in the declassification and release of records that agencies had wanted to withhold as classified.

Because this pattern has persisted for 15 years (since the Panel was established), it represents empirical proof that overclassification has been and still remains pervasive, even by internal executive branch standards.  In fact, there are indications that the Panel itself is too conservative in its handling of classification disputes.  Recently, even the hyper-retentive National Security Agency decided to fully release a document despite a Panel finding that it should remain partly classified.

The radical implications of ISCAP’s unbroken record of overturning a majority of the agency classification positions it reviews — which suggest that agencies are consistently misclassifying and failing to properly declassify information — are not examined in the ISOO report.

However, ISOO Director John P. Fitzpatrick noted in his transmittal letter to the President that an initiative known as the Fundamental Classification Guidance Review holds promise for improving the integrity of classification practice.  The Review, which is now drawing to a conclusion, is an effort to update agency classification guidance and to identify currently classified information that no longer should be classified.  “We believe that significant results will be obtained from this program,” Mr. Fitzpatrick wrote.

MOVE TO DECLASSIFY FISA COURT RULINGS YIELDS NO RESULTS

An initiative that was started two years ago to declassify significant rulings of the Foreign Intelligence Surveillance Court regarding domestic intelligence surveillance has produced no declassified records, a Justice Department official confirmed last week.

In response to complaints about the rise of “secret law,” the Justice Department and the Office of the Director of National Intelligence established a new process in 2010 to declassify opinions of the FISA Courts (including the Foreign Intelligence Surveillance Court as well as the FIS Court of Review) that contained “important rulings of law.”

Prior to her confirmation hearing in May 2011, DoJ National Security Division (NSD) director Lisa Monaco told the Senate Intelligence Committee that “all of the opinions and orders… issued by the FISA Courts that include significant constructions or interpretations of FISA” would be reviewed for declassification.

“If confirmed,” she told the Senate Committee, “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible, consistent with national security, and in a manner that protects intelligence sources and methods, and other properly classified and sensitive information.”  See her response to question 9 in these pre-confirmation hearing questions.

But despite these assurances, and two years after that declassification review process began, nothing has been declassified.  A Freedom of Information Act request for the newly declassified FISA Court opinions turned up no records.  A Senate Intelligence Committee official said the Committee was still awaiting the declassified release as well.  (Classified versions of “significant” opinions are already provided to the intelligence committees, DoJ says.)

Dean Boyd of the DOJ National Security Division confirmed that the current review process had produced no new declassified opinions since 2010.  He said that there were several factors that complicated the declassification of the FISA Court opinions.  According to Mr. Boyd:

  •     The documents at issue do not belong exclusively to the Justice Department, or indeed to the Executive Branch.  These legal opinions are judicial documents subject to the jurisdiction of the courts that issue them.
  •     These documents are classified because they meet the criteria for classification set forth in Executive Order 12958 [should be: 13526] and are subject to the statutory responsibility of the Director of National Intelligence (DNI) to protect sources and methods.
  •     Further, any contemplated public disclosure of such FISA Court opinions  must take account of legitimate concerns that public availability of FISA Court opinions, even in redacted form, may enable a sophisticated adversary to deduce particular sources and methods or take effective countermeasures that deprive the United States of intelligence.

There have been three cases in the past when FISA Court opinions were made public, including a FISC opinion dated May 17, 2002, a FISCR opinion dated November 18, 2002, and a FISCR opinion dated August 22, 2008.

But Mr. Boyd told Secrecy News that “All three of these opinions represented comparatively rare instances in which a FISA Court produced substantial legal opinions that could be severed from the sensitive facts of the underlying applications.”  So those prior releases are not necessarily precedents for any future releases, in the Department’s view.

Still, the current declassification review process continues, Mr. Boyd said.  But it is unclear how the factors that have prevented declassification for the last two years would change to permit disclosure in the foreseeable future.