SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2016, Issue No. 14
February 12, 2016

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

STREAMLINING DECLASSIFICATION: IMAGERY AND IMAGE PRODUCTS

A 2014 memorandum from Director of National Intelligence James R. Clapper, released this week under the Freedom of Information Act, drew a new distinction between intelligence satellite images and the intelligence products that are derived from those images.

The subtle new distinction affects the classification and declassification of the two categories of information, and may help to facilitate the release of a growing volume of imagery-related material by US intelligence agencies.

The new policy affirms that original satellite images retain their privileged status as a subset of protected intelligence sources and methods that can only be declassified by the Director of National Intelligence (pursuant to executive order 12951). However, the declassification of intelligence products based on those images is now delegated to the Director of the National Geospatial-Intelligence Agency.

Adopting this distinction will mean "streamlining our procedures," the DNI memo said, and "enabling the overall process to be more responsive to future Freedom of Information Act requests."

See "Classification and Marking of Imagery Derived from Space-based National Intelligence Reconnaissance Systems," memorandum from DNI James R. Clapper to NGA Director Robert Cardillo, November 12, 2014.

Whether the policy shift has already enabled more disclosure of intelligence imagery through the Freedom of Information Act is doubtful. We haven't seen evidence of it.

But what is true is that the National Geospatial-Intelligence Agency has undertaken to provide an increasing amount of unclassified imagery and mapping products to the public, including online resources concerning the Arctic, the Nepal earthquake, and the Ebola outbreak, as well as various disaster relief packages. Though it is easy to take the availability of this material for granted, it shouldn't be; an affirmative decision and something of a cultural shift by the intelligence community (or at least by NGA) was required in order to accomplish it.

The indiscriminate use of the term "intelligence sources and methods" to justify withholding of intelligence-related information from the public has long been a source of frustration and a cause for criticism.

The 1997 Moynihan Commission on secrecy said that "this very general language has come to serve as a broad rationale for declining to declassify a vast range of information about the activities of intelligence agencies" and that it "appears at times to have been applied not in a thoughtful way but almost by rote."

The Commission recommended that the scope of the term be clarified so as to limit its application.

DNI Clapper's 2014 memorandum on intelligence image products may be understood as a step in that direction.

"NOTWITHSTANDING ANY OTHER PROVISION," AND MORE FROM CRS

The phrase "notwithstanding any other provision of law" has already appeared in bills introduced in the current Congress more than 600 times, according to a new analysis from the Congressional Research Service.

"Does the presence of this phrase in an enactment really mean that no other statutes apply, as is sometimes suggested? The short answer is: not necessarily." See "Notwithstanding Any Other Provision of Law": Does It Really Mean That No Other Provisions of Law Apply?, CRS Legal Sidebar, February 10, 2016:

Other new and updated Congressional Research Service reports that Congress has withheld from public release include the following.

The Shutdown of the Joint North/South Korean Kaesong Industrial Complex, CRS Insight, February 11, 2016:

Volkswagen, Defeat Devices, and the Clean Air Act: Frequently Asked Questions, February 10, 2016:

The Renewable Fuel Standard (RFS): Waiver Authority and Modification of Volumes, February 10, 2016:

An Overview of USDA Rural Development Programs, updated February 10, 2016:

Private Health Insurance Market Reforms in the Patient Protection and Affordable Care Act (ACA), updated February 10, 2016:

Renewed Crypto Wars?, CRS Insight, February 9, 2016:

Water Infrastructure Financing: The Water Infrastructure Finance and Innovation Act (WIFIA) Program, February 9, 2016:

Social Security Primer, updated February 9, 2016:

DOE's Office of Electricity Delivery and Energy Reliability (OE): A Primer, with Appropriations for FY2016, February 9, 2016:

The Peace Corps: Current Issues, updated February 9, 2016:

EPA Regulations: Too Much, Too Little, or On Track?, updated February 9, 2016:

Aung San Suu Kyi's Party Takes Control of Parliament in Burma, CRS Insight, February 9, 2016:

China's Recent Stock Market Volatility: What Are the Implications?, CRS Insights, updated February 11, 2016:

The U.S.-Japan Alliance, updated February 9, 2016:

The Islamic State and U.S. Policy, updated February 9, 2016:

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

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