SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2015, Issue No. 71
October 26, 2015

Secrecy News Blog: http://fas.org/blogs/secrecy/

ON FOREIGN DISCLOSURE OF U.S. INTELLIGENCE

Classified U.S. intelligence information may be shared with foreign recipients when it is advantageous to the U.S. to do so and when it is not otherwise prohibited by law, according to a directive that was publicly released last week by the Office of the Director of National Intelligence.

"It is the policy of the U.S. Government to share intelligence with foreign governments whenever it is consistent with U.S. law and clearly in the national interest to do so, and when it is intended for a specific purpose and generally limited in duration," states Intelligence Community Directive 403, Foreign Disclosure and Release of Classified National Intelligence, which was originally issued on March 13, 2013.

There are some nuances, however.

For example, intelligence will ordinarily be shared with] foreign governments or their components, coalitions of governments, or international organizations. But individual foreign nationals and independent contractors "do not constitute foreign entities for purposes of foreign disclosure or release except as designated by the DNI."

("Disclosure" here means communicating the intelligence without transfering a copy of it for retention. "Release" means providing a copy that the recipient can keep.)

The release last week of Intelligence Community Directive 403, which had been sought through a Freedom of Information Act request, itself represents a novel act of transparency. The prior guidance governing Intelligence Disclosure Policy under DCI Directive 6/7 had not been publicly disclosed, as far as is known. The topic of intelligence liaison relationships, which is distinct but related to foreign disclosure, is among the most sensitive and least publicly documented areas of U.S. intelligence policy.

The current foreign disclosure policy was elaborated in several guidance documents that were also released by ODNI last week:

Criteria for Foreign Disclosure and Release of Classified National Intelligence, Intelligence Community Policy Guidance (ICPG) 403.1, March 13, 2013:

Procedures for Foreign Disclosure and Release Requiring Interagency Coordination, Notification, and DNI Approval, Intelligence Community Policy Guidance (ICPG) 403.2, August 8, 2014:

Criteria and Conditions for Emergency Foreign Disclosure and Release, Intelligence Community Policy Guidance (ICPG) 403.3, April 29, 2014:

Procedures for Interagency Coordination Prior to Foreign Disclosure and Release to Senior Foreign Officials, Intelligence Community Policy Guidance (ICPG) 403.4, October 25, 2014:

ICPG 403.1 specifies several categories of intelligence information that may *not* be shared with a foreign government.

These include intelligence which is protected against disclosure by law or treaty; intelligence on a U.S. person that is not publicly available; intelligence derived from Grand Jury information; and intelligence obtained through a liaison relationship with another government, among other categories.

Intelligence community officials are instructed to anticipate the purposes for which the shared intelligence might be used.

"Disclosures and releases that would support or facilitate lethal action require special consideration and authorization, including referral to the NSC and compliance with NSC direction as appropriate," according to ICPG 403.1.

AT CRS, CONFIDENTIALITY IS AN END IN ITSELF

The ability of Congressional Research Service analysts to support congressional deliberations is substantially enabled by (if not entirely predicated on) the confidentiality with which requests from individual Members of Congress and the CRS responses to those requests are handled.

Confidentiality permits congressional offices to consider politically sensitive or unpopular topics, and to evaluate new perspectives dispassionately without being prematurely locked into an ideologically-determined position.

A new CRS policy statement embraces the "fundamental core value" of confidentiality. But then CRS ratchets it up to the point of absurdity.

"[CRS] staff must maintain a confidential relationship with congressional clients at all times. Each and every inquiry CRS receives is part of a confidential relationship," the CRS policy affirms. So far, so good.

"Confidentiality requires that CRS staff members never acknowledge to another congressional client, government entity or official, or to the public or media, work that has been done for a specific Member or committee." Okay. But then CRS goes over the edge.

"Even in instances when a Member or committee publicly releases a confidential memorandum that CRS has prepared, staff may not provide copies of the memorandum to other congressional clients." That's overkill.

"You should answer any questions that [other] congressional clients have about the issue by preparing a new memorandum or other form of response [...], but you must do so in a way that neither confirms nor denies that CRS did the work that has been made publicly available [by the Member or committee]." Instead of confidentiality serving as a valuable means to an end, the new policy here elevates confidentiality into an end in itself, and in doing so casts doubt on the good sense of CRS management.

Attempts to elicit comment from CRS on this issue last week by telephone and email were not successful.

See Policy on Confidentiality, Congressional Research Service, September 22, 2015, with accompanying Frequently Asked Questions.

All of that pertains to confidential memoranda that are prepared for individual Members or committees. By contrast, CRS Reports are produced for the Congress as a whole. As such, they are "accorded a less restrictive level of confidentiality than other types of CRS work," the new policy states. But others would say the reports are not confidential at all, and should not be, particularly since they do not implicate the views of any individual Member of Congress.

New and updated CRS publications of the latter sort that were issued in the past week include the following.

Is This the First Step in Undoing Mass Incarceration? 6,000 Federal Drug Offenders Set to be Released, CRS Insight, October 22, 2015:

Legal Obligation of U.S. Armed Forces to Intervene in Acts of Bacha Bazi in Afghanistan, CRS Legal Sidebar, October 22, 2015:

Escalating Violence in El Salvador, CRS Insight, October 22, 2015:

China's Recent Stock Market Volatility: What Are the Implications?, CRS Insight, updated October 21, 2015:

Oil to Spare: The House Passes a Repeal of Crude Oil Export Restrictions, CRS Legal Sidebar, October 23, 2015:

The Effect of Base-Broadening Measures on Labor Supply and Investment: Considerations for Tax Reform, October 22, 2015:

Department of Veterans Affairs FY2016 Appropriations: In Brief, October 22, 2015:

Vulnerable Youth: Federal Mentoring Programs and Issues, October 22, 2015:

Legislative Actions to Repeal, Defund, or Delay the Affordable Care Act, October 22, 2015:

Financial Transactions Taxes: In Brief, October 22, 2015:

U.S. Postal Service Workforce Size and Employment Categories, FY1995-FY2014, October 21, 2015:

Potential Policy Implications of the House Reconciliation Bill (H.R. 3762), October 21, 2015:

Why Are Over-Income Tenants Living in Public Housing?, CRS Insight, October 22, 2015:

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

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