SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2010, Issue No. 65
August 16, 2010

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

WHO IS AN INTELLIGENCE EMPLOYEE?

Could someone be considered an intelligence community employee even if his salary is not paid out of the intelligence budget? Intelligence officials say yes, claiming that a person's status as an intelligence employee can be based on an "assessment of the functions [he] performs." This novel approach conveniently allows agencies to curtail oversight of such employees' activities.

In a letter sent to the Government Accountability Office last year, the Federal Bureau of Investigation articulated its position that the GAO is generally not entitled to review intelligence community information and, in particular, that the GAO would not be granted access to information about vacancies in the FBI counterterrorism program that could be considered intelligence jobs.

"The FBI will provide the GAO with information about FBI-wide vacancies for all 'position types' except those that are defined as being under the combined or shared authority of the Bureau and the Office of the Director of National Intelligence (ODNI)," wrote FBI General Counsel Valerie Caproni on July 28, 2009. A copy of her letter was obtained by Secrecy News.

But in a remarkable concluding passage, Ms. Caproni went on to argue that the "definition" of who is an intelligence employee is itself subject to interpretation:

"[T]he determination of whether an employee works in the Intelligence Community turns not only on the funding mechanism for their positions but on an assessment of the functions the employee performs," she wrote.

Thus it seems that regardless of whether or not an intelligence agency pays someone's salary, the Administration believes it can label that person an intelligence employee and then deny the GAO access to information about his or her position.

The U.S. Senate has yielded to the Obama Administration's pressure to block congressional use of the GAO as an intelligence oversight tool, and it removed a provision to strengthen GAO oversight authority from the FY 2010 intelligence authorization bill that passed the Senate on August 5. But the question of GAO oversight of intelligence remains a live, unresolved issue in the House.

WIKILEAKS: GIVING LEAKS A BAD NAME

Unauthorized disclosures of classified information ("leaks") often play an important role in the proper functioning of American democracy. They can serve as a safety valve against official excess, and an implicit check against government misconduct. Even the mere possibility of a leak can have a salutary effect, because it imposes conscious or subconscious limits on what officials might try to do if they were certain they would be undetected. (The FAS Project on Government Secrecy began in 1991 with our unauthorized receipt and disclosure of records on a problematic unacknowledged special access program called Timber Wind whose very existence was classified.)

But though many government records are wrongly kept secret, the anti-secrecy website Wikileaks managed to get its hands on some documents on the Afghanistan War that were properly classified, at least in part -- since they included the unredacted names of Afghan intelligence sources and collaborators -- and then to release them (while temporarily withholding others for closer review).

One initial response to Wikileaks' clumsy disclosure has been to bolster public support of the classification system, which was presumably not the intended result. Sixty-seven percent of respondents polled endorsed the view that "When media outlets release secret government documents relating to the War in Afghanistan [they are] hurting national security," according to a July 30-31 poll conducted by Rasmussen Reports.

Rep. Rush Holt (D-NJ), who has been a persistent critic of overclassification -- and who voted to oppose supplemental funding for the war in Afghanistan -- last week joined the chorus of critics who have spoken out against Wikileaks' indiscriminate disclosure practices.

"Before rushing to judgment about this very large, unauthorized disclosure of information, I wanted to review some of the documents myself to determine if indeed potential human sources of information had been compromised," Rep. Holt said in a statement in the August 10 Congressional Record. "After reviewing some of these documents, I have concluded that their release could indeed cause real harm to real people."

Daniel Ellsberg, the archetypal modern leaker of classified information who was responsible for the unauthorized disclosure of the Top Secret Pentagon Papers in 1971, nevertheless withheld from public disclosure four volumes of the 47-volume Papers which dealt with diplomatic negotiations because he judged them to be too sensitive for release at that time (as noted by John Prados and Margaret Pratt Porter in "Inside the Pentagon Papers," p. 10). The four withheld volumes were not released in full until 2002. Regrettably, Wikileaks has failed to demonstrate similar discernment in handling classified records, and it will be up to others to try to repair the damage it has caused.

HUGE COMMERCIAL SAT IMAGERY CONTRACTS AWARDED

The National Geospatial-Intelligence Agency (NGA) has awarded two large contracts for commercial satellite imagery to meet U.S. intelligence community needs. DigitalGlobe received a contract worth $3.5 billion and GeoEye received another worth $3.8 billion over ten years, according to an August 6 news release from NGA. The contracts "will help meet the increasing geospatial intelligence needs of the Intelligence Community and Department of Defense," NGA said.

"This is such good news for the commercial satellite imagery industry," said Mark Brender of GeoEye. "Our government is really moving to 'outsource overhead'," he said.

ODNI ADVISORS ON BIO SCIENCES KEEP LOW PROFILE

A few years ago the Office of the Director of National Intelligence established a "Biological Sciences Experts Group" consisting of scientists from industry and academia to advise the intelligence community on the threat of biological weapons proliferation and related matters. But not a single fact concerning the Group's actions or accomplishments can be publicly disclosed, the ODNI said last week in response to a Freedom of Information Act request.

As is often the case, a bit more about the Group can be learned through unofficial channels, as previously reported in Secrecy News ("Experts Advise IC on Classified Biosecurity Activities," April 13, 2010).

REVIEWS OF FOREIGN INVESTMENT IN US REMAIN "OBSCURE"

"The Committee on Foreign Investment in the United States (CFIUS) is an interagency committee that serves the President in overseeing the national security implications of foreign investment in the economy," the Congressional Research Service has explained. "Originally established by an Executive Order of President Ford in 1975, the committee generally has operated in relative obscurity."

That relative obscurity continues to prevail. A new Department of Defense Instruction says that "The DoD CFIUS process should, to the extent possible, be a transparent process." Yet the same Instruction dictates that "Information or documentary material filed with CFIUS shall be exempt from disclosure [under the Freedom of Information Act] and will not be made public." See "DoD Procedures for Reviewing and Monitoring Transactions Filed with the Committee on Foreign Investment in the United States (CFIUS), DoD Instruction 2000.25, August 5, 2010:

Two informative background reports on CFIUS were recently updated by the Congressional Research Service. See "The Committee on Foreign Investment in the United States (CFIUS)," July 29, 2010:

and "The Exon-Florio National Security Test for Foreign Investment," July 19, 2010:

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

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