SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2006, Issue No. 50
April 25, 2006

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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INTELLIGENCE FUSION CENTERS EMERGE ACROSS THE U.S.

The contours of the U.S. intelligence bureaucracy are expanding to include dozens of new "intelligence fusion centers" based around the country.

An intelligence fusion center is "a collaborative effort of two or more agencies that provide resources, expertise, and/or information to the center with the goal of maximizing the ability to detect, prevent, apprehend, and respond to criminal and terrorist activity."

A list of state and regional intelligence fusion centers that have been established as of March 2006 was obtained by Secrecy News. See:

Last year, the Department of Justice and the Department of Homeland Security published guidelines for the operation of fusion centers dealing with law enforcement intelligence.

See "Fusion Center Guidelines: Developing and Sharing Information and Intelligence in a New World," July 2005 (1.8 MB PDF):

So far, the fusion centers have not been an unqualified success. State officials express growing unhappiness with the contribution of federal intelligence agencies, according to a new survey from the National Governors Association:

"Sixty percent of responding state homeland security directors are dissatisfied or somewhat dissatisfied with the specificity of the intelligence they receive from the federal government. An additional 55 percent are dissatisfied or somewhat dissatisfied with the actionable quality of the intelligence they receive from the federal government."

"These numbers represent a sharp increase from the combined dissatisfied/somewhat dissatisfied percentages from the previous year," according to the April 5 NGA survey:

The fusion centers are one aspect of a broader effort to promote sharing of intelligence information within the government.

The Intelligence Reform Act of 2004 (section 1016) called for the creation of an Information Sharing Environment (ISE), which is defined as "an approach that facilitates the sharing of terrorism information, which approach may include any methods determined necessary."

This too is a work in progress, at best, that remains far from achieving its objective.

"More than 4 years after September 11, the nation still lacks the government-wide policies and processes that Congress called for to provide a framework for guiding and integrating the myriad of ongoing efforts to improve the sharing of terrorism-related information critical to protecting our homeland," the Government Accountability Office stated in a report (pdf) published last week.

Selected resources on the ISE are available here:

It should be noted that "information sharing" in this context does not extend to public disclosure of government information. To the contrary, information sharing policies may even create new barriers to public access through the use of non-disclosure agreements and similar devices.

ODNI PURSUES INTELLIGENCE COMPENSATION REFORM

The Office of the Director of National Intelligence is attempting to revamp the compensation system for intelligence personnel to emphasize "pay for performance" rather than duration of employment.

But it is considered a delicate, even "potentially destructive" task.

"There can be no doubt that pay modernization is coming to the IC," wrote DDNI Michael Hayden in a February memo, "and generally, I believe that is a good thing."

"You should all receive competitive compensation based on your competence and contribution to mission, not just on longevity," Gen. Hayden wrote.

"However, if we don't carefully manage the introduction of these changes, we could see untenable pay disparities within the IC, potentially destructive inter-agency competition, and a negative impact on employee morale," he wrote.

The February 6 Hayden memorandum was transmitted to senior defense officials by Under Secretary of Defense for Intelligence Stephen A. Cambone on March 13.

A copy was obtained by Secrecy News.

See "Modernizing Civilian Compensation Systems within the Intelligence Community," memorandum for All Intelligence Community Employees:

HOUSE POISED TO GRANT ARREST POWERS TO CIA, NSA

The House version of the 2007 intelligence authorization bill would grant CIA and NSA security personnel the authority to make arrests for "any felony" committed in their presence, no matter how remote from the foreign intelligence mission it might be, the Baltimore Sun reported today.

Section 423 of H.R. 5020 "appears...to grant to CIA security personnel powers that have little to do with the primary mission of 'executive protection,' and potentially creates a pretext for use or abuse of these powers for the purposes of general domestic law enforcement -- something no element of the CIA has ever been empowered to perform," wrote Danielle Brian of the Project on Government Oversight in a letter to members of the House Intelligence Committee opposing the provision.

Section 432 of the bill grants similar authority to NSA security personnel.

The bill also includes measures intended to increase penalties for unauthorized disclosures of classified information.

See "Congress cracking down on U.S. leaks" by Siobhan Gorman, Baltimore Sun, April 25:

JUDGING SECRETS: THE ROLE OF THE COURTS

Federal courts could, and should, play a more effective role in curtailing unnecessary government secrecy, argues Meredith Fuchs, general counsel at the National Security Archive, in a splendid new law review article.

"All too often, courts easily accept the argument that the executive needs unquestioning adherence to its judgments and that the court is not competent to assess those judgments in the realm of national security."

"Yet judges have stemmed executive overreaching in other contexts involving national security claims. Judges have discretionary tools -- such as the Vaughn Index, in camera review, and special master -- available to help them do the same in the secrecy context," she wrote.

Her article provides an updated introduction to the secrecy system, a critique of secrecy policy, and a survey of recent judicial actions.

See "Judging Secrets: The Role Courts Should Play in Preventing Unnecessary Secrecy" by Meredith Fuchs, Administrative Law Review, Winter 2006:

FOREIGN INFLUENCE, ISRAEL AND THE SECURITY CLEARANCE PROCESS

Many people who have tangled with the security clearance system have found it bafflingly inconsistent and unpredictable. New research on the role of foreign influence in security clearance disputes, particularly those involving Israel, finds an empirical basis for that perception.

According to official guidelines for granting security clearances for access to classified information, foreign influence or allegiance can understandably be a disqualifying factor leading to denial or revocation of clearance.

Among the security clearance disputes involving foreign influence that are presented for adjudication to the Defense Office of Hearings and Appeals (DOHA), "there appear to be an unusually large number of Israel cases," wrote attorney Sheldon I. Cohen in a recent study.

"Since 1996, when DOHA began posting its decisions to its web site, until February 2006,... there have been 47 cases identifying Israel as the foreign country in question. These cases have resulted in 18 applicants being granted clearances and 29 being denied."

Cohen, a specialist in security clearance law and policy, scrutinized many of these Israel-related cases to deduce the larger lessons they hold about the clearance adjudication process.

"After review of such an extensive body of case law one would expect there to be some predictability, but there is none," he concluded.

"If DOHA would provide its policies in deciding and appealing these cases, if indeed there are such policies, applicants and their counsel would have some idea of the likelihood of obtaining a clearance more than simply a roll of the dice."

Instead, Cohen found, "one is left with a sense of arbitrariness and unpredictability."

See "Israel: Foreign Influence - Foreign Preference Cases, A Review of DOHA Decisions" by Sheldon I. Cohen, March 2006, linked on this page:

A broader consideration of "Foreign Influence and Foreign Preference Considerations in National Security Clearance Decisions," also by Cohen, can be found at the same site.

A new Department of Defense Inspector General report found that the perennially troubled security clearance systems is still... troubled.

"All 26 DoD military and civilian requesting activities we visited experienced difficulties in effectively and efficiently processing personnel security investigation requests for military and civilian personnel."

"As a result, requesting activities may continue to experience delays in the security clearance process, which may impact national security, completion of critical DoD missions, and support of the warfighter."

See "DoD Personnel Security Clearance Process at Requesting Activities," DoD Inspector General audit report, April 19, 2006 (2 MB PDF file):

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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