Reagan-era EO 12333 Comes Under Scrutiny, Authors of 9/11 Commission Report Call for More IC Transparency, and Much More: FRINFORMSUM 7/24/2014

EO12333 flow chart provided to the Washington Post by Edward Snowden. (Source: Barton Gellman)

Under the Reagan-era Executive Order 12333, issued in 1981 to authorize foreign intelligence investigations, certain intelligence practices remain so secret “even from members of Congress, that there is no opportunity for our democracy to change” them. An op-ed in The Washington Post argued that while much of the debate on bulk surveillance practices has focused on Section 215 of the Patriot Act, which allows the government to compel private telecommunication companies to turn over customer data, more attention must be paid to EO 12333, whose “surveillance is conducted without court oversight and with comparatively little Congressional review.” Unlike Section 215, which authorizes the collection of metadata, EO 12333 authorizes collection of the content of communications in addition to metadata. If a US person’s communications are “incidentally” collected during an overseas intelligence investigation, EO 12333 “does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.” None of the surveillance reforms announced earlier this year would affect EO 12333 collection.

The authors of the 9/11 Commission report have released a new report to mark the 10^th anniversary of the initial publication, finding both that cyberattacks and “fragmented congressional oversight” threaten national security. The authors also noted “Platitudes will not persuade” a skeptical public to support Congressional legislation to let private companies work with the government to counter threats in the face of privacy concerns. “Ten years after the Commission closed its doors, scholars and the general public should be given broad access to these documents, absent a compelling national security justification for withholding a given record.”

Politico’s Josh Gerstein posited that, given bipartisan frustration with, among other things, the ongoing revelations about the National Security Agency’s (NSA) surveillance practices and the White House’s failure to notify Congress about the Bowe Bergdahl prisoner exchange, now might be an ideal time for bipartisan support for transparency measures. These measures include the FOIA Improvement Act of 2014, which would close the b(5) “deliberative process” exemption loophole, and a “shield law that would protect journalists from having to testify about their sources in federal court.”

The New York Times reported that the Clinton Library released roughly 1,000 pages of newly released documents, with 13,000 additional documents expected to be released in the coming weeks. Among the newly released pages are draft signing statements prepared by White House lawyers for President Clinton to sign regarding a 2000 anti-leak bill “that would have made any leak of classified information a felony.” Clinton ended up vetoing the bill instead, noting, somewhat unexpectedly, “Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy.”

The House of Representatives approved an amendment to the 2015 Financial Services and General Government Appropriations Act last week that would cut the National Security Council (NSC) budget by a third, or nearly $4.2 million. The sharp cuts are in response to allegations from House Appropriations Committee members that “Over the last few months, we have had several instances in which the National Security staff has mandated that the Department of Defense and other agencies selectively withhold information from congressional oversight committees.”

Last week the Senate Appropriations Committee voted to withhold $175 million from the Defense Appropriations Bill until the Israeli government guarantees US firms a larger share of Iron Dome –Israel’s missile defense system– contracts. The defense system was funded primarily by Department of Defense funds, but the majority of contracts have been awarded to Israeli contracting firms, with US contractors receiving as low “as low as 3 percent” of the funds.

The Senate Appropriations Committee also examined the cost of maintaining the Guantanamo Bay detention facility. The Committee found that the average annual cost to house a detainee at Guantanamo is $2.8 million, compared to the cost of housing a maximum-security inmate with Federal Bureau of Prisons, which is roughly $78,000 a year. The Committee also found that the cost of modifying the prison’s clinic to adequately care for the aging detainees would be around $11 million, and housing for the needed support staff would cost over $100 million.

A coalition of 250 organizations, including government watchdogs and whistleblower lawyers, is urging the Securities and Exchange Commission (SEC) to restrict the use of commercial nondisclosure agreements “that discourage employees from coming forward with allegations of fraud and abuse.” Citing a recent rise in the use of such agreements, the coalition is petitioning the SEC “to amend a key rule to make the use of such agreements a violation of securities law.”

Earth rising behind the moon. (Photo courtesy of NASA, Lewis Research Center)

To mark the 45^th anniversary of Neil Armsrtong’s “one small step” for mankind, becoming the first person to set foot on the moon, the Archive published previously classified government documents on lunar operations. These operations included researching the possibility of conducting nuclear tests in space, using the moon to reflect signals for military or intelligence purposes, and U.S. intelligence analyses of Soviet missions and their intentions to land a man on the moon.

The Archive also published declassified summaries of reports by the once Top Secret Net Evaluation Subcommittee (NESC) -a small and highly secret organization that prepared annual reports analyzing the “net” impact of a U.S.-Soviet nuclear exchange- that revealed the terrible costs of nuclear war this week. One NESC report allegedly prompted JFK to remark, “And we call ourselves the human race.” None of these 50-year old reports have been declassified in their entirety.

This week’s #tbt document pick comes from FOIA Coordinator Nate Jones’ January posting on newly available Stasi notes of meetings between Soviet and East German security heads between 1981 and 1984, which “provide unprecedented details of Operation RYaN, the Soviet intelligence effort to detect and preempt a Western ‘surprise nuclear missile attack,’ that contributed to the risk of nuclear war through miscalculation during the 1983 Able Archer nuclear war scare.” One document in particular stands out given the recent tragedy of the downing of Malaysian Airlines Flight 17: a meeting note that discussed evidence showing the Soviets believed KAL flight 007 –which was shot down by a Soviet jet over the Sea of Japan on September 1, 1983, killing all 269 passengers aboard– was a military, rather than civilian aircraft.  Deputy Chairman of the KGB Vladimir Kryuchkov explained “we were convinced that it was a military aircraft.”