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Contrasting versions of page 15 (page 21 of PDF) from the initial CIA release of the post-mortem on the October War intelligence failure and the subsequent ISCAP release.

The Secrecy Court of Last Resort

New Declassification Releases by the Interagency Security Classification Appeals Panel (ISCAP)

National Security Archive Electronic Briefing Book No. 276

Posted - June 5, 2009

For more information contact:
William Burr - 202/994-7032

 

 

 

Recent Actions by Declassification Panel Show Pattern of CIA Overclassification and Tight Grip on Early Cold War History

Documents Released Offer New Revelations on October War Intelligence and the Israeli Nuclear Weapons Program

Washington, D.C., June 5, 2009 - Now that President Obama has announced a review of U.S. secrecy policy, critics of secrecy policy and declassification requesters alike can only hope that those who carry it out understand the serious failings of the secrecy system as it currently exists.  One of the absurdities of the system is that historical national security information, even information 60 years old, is subject to standards that are nearly as tough as those applied to recently-produced information.  A group of documents recently declassified by the Interagency Security Classification Appeals Panel and a CIA history that ISCAP could not release illustrate the problems raised by current standards, overly strict interpretations of those standards, and legal obstacles blocking the declassification of historical intelligence information.
 
ISCAP acts as the court of last resort for mandatory declassification review requests.  Supported by the staff of the Information Security Oversight Office, which provides the panel’s executive secrecy, ISCAP can overturn, modify, or affirm agency decisions that requesters have challenged with an appeal.  Recently, in response to appeals from the National Security Archive, ISCAP reversed several Central Intelligence Agency initial denials of documents from the 1960s and 1970s.  While ISCAP withheld material it regards as sensitive secrets, it nevertheless found that much of the information denied by the CIA could be declassified without harm to national security.  ISCAP released:

  • The U.S. government’s first intelligence estimate—a Special National Intelligence Estimate from December 1960—on the purposes of Israeli nuclear activities at a nuclear reactor complex near Beersheba: “We believe that plutonium production for weapons is at least one major purpose of this effort.”
  • Biographical sketches of members of the Soviet delegation to the Strategic Arms Limitation Talks in 1969. For years, the CIA routinely refused to declassify its biographical reporting.
  • The intelligence community’s post-mortem on the intelligence failure to anticipate the Egyptian-Syrian attack on Israel in October 1973. This absorbing report was the equivalent of a “best seller” in the intelligence establishment after it was published.
  • A National Intelligence Estimate from April 1986 on “The Likelihood of Nuclear Acts by Terrorist Groups,” which found that the “prospects that terrorists will attempt high-level nuclear terrorism” were “low to very low.” While the CIA analysts speculated that even the terrorist groups of the 1980s may have had inhibitions against actions that produced civilian mass casualties, they suggested that the inhibitions could erode and that groups “with a different state of mind” could emerge.  

ISCAP’s decision to declassify these documents is commendable, but the CIA’s initial denials suggest that the Agency is following overly restrictive declassification review standards.  Just as troubling, the Agency used the CIA Information Act to prevent ISCAP from making a decision on the classification status of a history of early covert operations, “Office of Policy Coordination, 1948-1952.”  

These CIA examples suggest that the rules and regulations that support the U.S. government secrecy system enable government agencies to follow unreasonably narrow standards.  Moreover, as the CIA’s action on the covert operations history suggests, laws on the books give the Agency inordinate power to keep the veil of secrecy over important parts of its history.  Indeed, President George W. Bush’s executive order on secrecy policy, still in force, gives the CIA veto power over ISCAP decisions on intelligence records. These problems point out the need for significant change in the U.S. government’s secrecy policy.
  
Creation of ISCAP

One of President Bill Clinton’s innovations in Executive Order 12958 was the possibility of a final mandatory review appeal to an Interagency Security Classification Appeals Panel.  The Nixon administration established mandatory review in 1972, under Executive Order 11652, as a way for members of the public to request declassification review of national security classified information; since then, mandatory review has become an important element of the federal government’s declassification system. (Note 1)  FOIA is useful for requesting all kinds of U.S. government information, classified or unclassified, but mandatory review is tailor-made for the declassification review of classified information on diplomacy, intelligence, and military policy and operations.   Moreover, for requesting classified presidential records produced before the Presidential Records Act (up through the Carter administration), researchers must use mandatory review.  Those records were not subject to FOIA because the former Presidents effectively owned them (mandatory review must be used for all classified donated records).   But mandatory review can also be used for requesting non-presidential records from the national security bureaucracy when the requester can specifically describe documents so that government officials can easily find them.

Before Executive Order 12958, there was little advantage to using mandatory review for requesting non-presidential records.  As under FOIA, requesters had only one chance to appeal an adverse agency decision.  While FOIA gave requesters the right to sue, it is a right that is difficult to use because of the costs and complexity of litigation.  The dynamic changed, however, when President Bill Clinton signed Executive Order 12958, which created ISCAP and made mandatory review a more attractive option by giving requesters an opportunity for a second appeal. Chaired by the director of the Interagency Security Oversight Office, ISCAP includes representatives from the State Department, the Department of Defense, the Department of Justice, the National Archives, the National Security Council, and the Central Intelligence Agency.

As long as requesters believe that ISCAP will give fair treatment to their appeals, the panel’s existence increases the advantage of mandatory review.  That ISCAP could and would overturn agency decisions when it believed that they were incorrect became evident early in its history. One of the most sensitive and secret set of arrangements authorized by U.S. presidents during the Cold War concerned advance authority (“predelegation”) to top nuclear commanders to use nuclear weapons in emergency conditions, specifically, surprise nuclear attack.  The documents at the Dwight D. Eisenhower Presidential Library that embodied the predelegation arrangements remained highly secret for years, with the Pentagon and other agencies refusing to declassify them.  Nevertheless, when it became possible to appeal the denials to ISCAP, the panel responded in 1998 by releasing significant information on Eisenhower’s predelegation decisions.  Plainly, it believed that doing so was consistent with U.S. national security.  ISCAP made other important decisions, but its actions on predelegation were persuasive evidence that the White House had created an authority that could check excessive secrecy at the agencies.

Operational Files Exemption

While ISCAP has broad authority, there are limits to its freedom of action in reviewing classified information.   One restriction on ISCAP’s power is the operational files exemption established by the CIA Information Act (1984). The purpose of the Act was to facilitate CIA’s FOIA process by exempting operational files (intelligence collection and covert action) that were considered unlikely to be declassified.  Nevertheless, Congress wanted CIA to open up some of the files to declassification requesting over time.  Therefore, the Act called upon the DCI to review the exemptions every ten years to determine “whether such exemptions may be removed” from any file category, and to use “consideration of historical value or other public interest” to determine whether a “significant part” of the information can be declassified.  That, however, has not happened. Indeed, the DCI has expanded the scope of Directorate of Operations file series that may be excluded, including explicitly “Clandestine Service History Program Files” as well as files of the Directorate of Science and Technology and the “Security Center.”

The operational files exemption constrained ISCAP’s freedom of action in a recent decision on a CIA history.  In 2004, the National Security Archive filed a mandatory review request for a CIA history of its covert operations during the early years of the Cold War, “Office of Policy Coordination, 1948-1952” (see Document 4 below). The CIA had released portions of the history in 1997 and Archive staffers hoped that it might be possible to get more of it released in light of the passage of time.  If not, then it would be a useful test of the ISCAP process and whether CIA would block the declassification of sixty-year-old information.  As it turned out, in its initial decision, in early 2005, the Agency refused to release any more information than it had provided in 1997.  Appeals to CIA as well as to ISCAP were unavailing.  In December 2008, ISCAP informed the National Security Archive that “the remaining classified information within this document is exempt from mandatory review, and as such does not fall within the purview of the ISCAP.”  What happened was that the CIA claimed the operational files exemption to support its denial.   Apparently the Agency had mistakenly released portions of the OPC history and would not release any more of it.  ISCAP has no authority to challenge the Agency’s decision.

The CIA’s decision on this history points to failings in the implementation of the CIA Information Act, which ought to be corrected.  But a more basic weakness in the U.S. government’s declassification system is the Central Intelligence Agency’s ability to use “sources and methods” claims to prevent indefinitely the release of information about its history, even from the first years of its existence.  For years, the CIA has had great freedom of action to use its statutory exemption in the 1947 National Security Act to prevent the release of information about its history.  While the CIA has made progress, e.g., declassifying biographical sketches and satellite photography, among other “sources and methods,” as the Moynihan Commission observed almost 12 years ago neither the Act nor subsequent executive orders ever defined what sources and methods meant. As a result, CIA has been able to use this exemption in broad-brush fashion to “justify the classification of a range of information only indirectly related to a specific source or method.”  Consequently, the “sources and methods rationale has become a vehicle for agencies to automatically keep information secret without engaging in [any] harm analysis.” Arguing that CIA has not used the sources and methods exemption in a “thoughtful way but almost by rote,” the Commission recommended that the intelligence establishment clarify the “use of sources and methods as a basis for the continuing classification of intelligence information” and that the DCI send out instructions on the matter. (Note 2)

The Moynihan Commission's recommendations on sources and methods received no follow-up.  It is unlikely, however, that CIA will revisit the way it classifies historical sources and methods information without external stimulus.  It is essential that President Obama issue a new executive order on national security information that includes a reversal of the CIA veto over ISCAP decisions.  But even if the White House was inclined to reform sources and methods classification standards, a legislative solution is essential for taking effective action.  For example, an omnibus historical records act could include language amending the 1947 National Security Act by stipulating that the sources and methods that require protection in records that are over 25 years old are limited to those whose disclosure could place a source in personal jeopardy or compromise an intelligence method that is currently in use. (Note 3

CIA Veto

Another area where the CIA can restrict ISCAP’s authority emerged during the first years of the George W. Bush administration—an explicit CIA veto to protect its information from declassification by ISCAP.  The CIA first challenged ISCAP’s authority over its information in the late 1990s, but lost that fight. (Note 4)  Nevertheless, CIA officials believed they had an exclusive role in protecting intelligence sources and methods and after George W. Bush came to power, they had more allies in the White House.  When the Bush administration amended E.O. 12958, it gave the CIA a veto over ISCAP decisions that concerned its information.  Thus, according to Executive Order 13292, when the Director of Central Intelligence objects to a decision by the Panel “because he has determined that [releasing] the information could reasonably be expected to cause damage to the national security and to reveal (1) the identity of a human intelligence source, or (2) information about the application of an intelligence source or method (including any information that concerns, or is provided as a result of, a relationship with a cooperating intelligence element of a foreign government), the information shall remain classified.”  ISCAP would have the right to appeal adverse decisions to the president and has exercised that right in a few cases that are still pending at the White House (e.g., over President’s Daily Briefs). (Note 5)

By giving the CIA veto power, the Bush administration Executive Order set a bad precedent that struck at the heart of ISCAP’s authority.  As the OLC put it in 1999, “the decision to classify information bearing on national security is an exercise of the President's independent constitutional power to control access to such information” and ISCAP is the president’s “delegee” in such matters.  If the CIA can veto a decision by the panel, then the system of presidential authority is turned on its ear.  Reversing the CIA veto should be an element of a future executive order on national security information.  If CIA disagrees with an ISCAP decision, it would still have the ability to appeal to the President as it did under the Clinton executive order.

This briefing book illustrates serious overclassification problems in the intelligence agencies, but also ISCAP’s strengths and weaknesses in its relationship with the Central Intelligence Agency.  When the National Security Archive requested the documents that follow, the CIA withheld several of them in their entirety or excised most of their contents. Appeals led nowhere: the CIA refused to declassify more information from them.   By contrast, appeals to ISCAP led the panel to overturn the CIA decisions and declassify much of the information at issue in the appeals.  While these results show that the CIA can work constructively with its ISCAP colleagues in declassifying important information, at the same time, they raise questions about the guidelines and interpretations that led the Agency to withhold so much information in the first place.  Even with the weaknesses in Executive Order 12958, ISCAP believed that the further declassification was wholly consistent with it.  This may show that the Executive Order needs clarification so that agencies do not interpret it in such a restrictive fashion that they deny information that ought to be declassified.

Moreover, as is evident in the decisions on the Office of Policy Coordination history, as long as the CIA Information Act stays in its present form, ISCAP will be constrained when reviewing historical intelligence information and the CIA can indefinitely withhold the record of its history with little outside accountability.  As difficult as this problem is, it is one that the Obama administration needs to tackle.

 


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Document 1: Special National Intelligence Estimate Number 100-8-60, “Implications of the Acquisition by Israel of a Nuclear Weapons Capability,” 8 December 1960, Secret/Noforn, Excised Copy

On the basis of evidence collected during the summer and fall of 1960, the U.S. intelligence establishment drew relatively firm conclusions that Israel had an ongoing program to produce “weapons grade plutonium.”  In recent years, the U.S. government has been more forthcoming in declassifying information about what it knew and when in the early years of the Israeli nuclear program.  In declassifying this previously exempted document, ISCA is following that pattern.

This Special National Intelligence Estimate (SNIE) was controversial as soon as it was published because information surfaced showing that the intelligence agencies and other U.S. government organizations had overlooked telling evidence that Israel had a nuclear weapons program underway.  As Avner Cohen has shown, an intelligence post-mortem requested by President Kennedy showed that information available as early as April 1958 could have led to an accurate understanding of Israel’s purposes.  Why this happened can not be easily explained, but Cohen identified a number of relevant factors, including “Israeli secrecy and deception,” underestimation of Israeli capabilities, “friends [of Israel] in high places … who might have helped to suppress the early information,” organizational bottlenecks at the CIA, and the possibility that Eisenhower wanted Israel to have the bomb. According to Cohen, “the late 1950s might have been the only time the United States could have successfully pressured Israel to give up its nuclear weapons project in exchange for American security guarantees, but the opportunity was not explored.” (Note 6)

Document 2: Henry A. Kissinger, Memorandum for the President from Henry A. Kissinger, “Soviet SALT Delegation Named: Technical Competence Suggests Readiness to Address Concrete Problems,” 6 November 1969, Secret, Excised copy
Archival source: National Archives, Nixon Presidential Library, NSC files (hereinafter Nixon NSC), box 874, SALT, Vol. IV, Oct-November 16, 1969

For years, the CIA refused to even confirm or deny that it routinely produced biographical sketches of foreign officials, used for briefing U.S. government officials on their foreign counterparts, claiming that acknowledging the existence of the reports would harm national security and compromise sensitive sources and methods.   In 1999, working with the law firm Ropes & Gray, the Archive filed a lawsuit against the Agency for its refusal to declassify biographical sketches of nine former Communist leaders of Eastern European countries, seven of whom were dead at the time.  The lawsuit challenged the Agency’s use of the “Glomar” exemption, named after the CIA’s refusal to confirm or deny the Glomar Explorer project during the 1970s.  It is rare for federal judges to rule against the CIA, but in this case, U.S. District Judge Colleen Kollar-Kotelly ruled that the Agency could not use the Glomar exemption to prevent declassification of the biographical sketches. (Note 7) Although this would not prevent the Agency from using other grounds to withhold biographical sketches or excised them, it could no longer use the Glomar exemption to deny them.

While a judicial decision on a FOIA lawsuit does not have effective bearing on mandatory review requests, the Judge’s decision may have chipped away at the Agency’s hard-line position against declassifying biographical sketches.  In the instance of the Kissinger to Nixon memorandum on SALT, the CIA withheld all of the biographical sketches of members of the Soviet delegation to the Strategic Arms Limitations Talk (SALT) that began in Helsinki in November 1969.  CIA continued to exempt the biographical sketches despite the Archive’s initial appeal.  ISCAP, however, approved the release of several of the documents, perhaps persuading CIA to be more flexible and not use its veto. The release included sketches of some key officials in the Soviet talks, such as delegation head Vladimir Semenovich Semenov and Georgiy Markovich Korniyenko, a key Americanist at the Soviet Foreign Ministry, but two sketches were withheld.  They may have concerned the other members of the delegation: Colonel General Nikolai Alexeyev and academician Alexander Schchukin.

Document 3: Central Intelligence Agency (?), “Soviet Nuclear Weapons in Egypt?”, 30 October 1973, Top Secret, Excised copy
Archival source: Nixon NSC, Henry A. Kissinger Office Files, box 132, Egypt-Ismail Vol. VII Oct. 1973

In the weeks after the October War, U.S. government officials leaked to the media information about intelligence gleanings of possible shipments of Scud missiles and nuclear weapons to Soviet bases in Egypt during the conflict.  While officials were more certain about the deployment of the missiles, it was more debatable whether Moscow had actually deployed nuclear weapons to foreign territory because of the great risks involved.   According to the press reports, defense officials saw a “reasonable possibility” that nuclear weapons were shipped, but members of the Senate Armed Services Committee, John C. Stennis and Stuart Symington, “said the evidence did not convince them.” (Note 8)

Photo of Big Smoke, a motor yacht used by the U.S. Navy’s Task Force 157, for intelligence collection operations in the Mediterranean. Photo from Jeffrey Richelson, "Task Force 157: The U.S. Navy's Secret Intelligence Service, 1966-77," Intelligence and National Security 11 (1996), 118; used with permission of the author and the journal.

For the first time, the U.S. government has released one of the intelligence reports that may have been the basis for the leaks.  While intelligence agencies exempted this document in its entirety after the first request to the Nixon Library and also after an appeal, ISCAP agreed to release much of it, suggesting that the much of the information had been overclassified.

“Soviet Nuclear Weapons in Egypt?” draws back from definite conclusions, suggesting why some U.S. officials believed that the evidence was not good enough.  Interestingly, the report indicates which Soviet cargo ship—the Mezhdurechensk—was one of the objects of suspicion, and that U.S. intelligence photographed the ship at Alexandria on 25 October.  While much of the evidence concerning the alleged deployment has been redacted from the report, probably on sources and methods grounds, a prize-winning article by Archive senior research fellow, Jeffrey Richelson, “Task Force 157: The U.S. Navy’s Secret Intelligence Service, 1966-1977,” published in Intelligence and National Security, clarifies the issue. According to Richelson’s account, Task Force 157 included a yacht equipped with a special nuclear intelligence sensor that operated in the Bosphurus and shadowed Soviet ships. The problem was that the sensor was “prone to giving positive false alarms,” and could not determine whether the “type of radiation in question” indicated the presence of nuclear weapons.  This makes it all the more understandable why the authors of the 30 October report were unwilling to draw firm conclusions about the presence of nuclear weapons on the Mezhdurechensk: “The evidence should not yet be regarded as though it creates a strong presumption that the Soviets dispatched nuclear weapons to Egypt.” (Note 9)
 
Document 4: U.S. Intelligence Community Staff, “The Performance of the Intelligence Community Before the Arab-Israeli War of October 1973: A Preliminary Post-Mortem Report,” December 1973, Top Secret, Excised copy

This picture of the U.S. Intelligence Board, then chaired by Director of Central Intelligence William E. Colby, includes representatives of the organizations which collected and reviewed intelligence before and during the October 1973 War. In November 1973, perhaps at the meeting depicted here, the Board approved the creation of a post-mortem function by the Intelligence Community Staff’s Product Review Division. (Photo, courtesy CIA History Staff)

Before the 1970s, analysts in the U.S. intelligence establishment occasionally produced post-mortems on intelligence products, such as National Intelligence Estimates, “almost always in response to the complaints of high-level policymakers … who wanted to know what-had-gone wrong” within the office that has produced flawed estimates and analyses. (Note 10)  Apparently, however, the post-mortems were either ignored by policymakers or were dismissed by their readers as self-serving.  To get around these problems, in 1973 the newly created Intelligence Community (IC) Staff, took up the post-mortem function, as part of its overall, if weakly empowered, mission to coordinate programs and control costs.  The Products Review Division (PRD) had responsibility for post-mortems and produced seven of them during 1973-1975. (Note 11)  Only a few of them have released and most of them have been heavily excised (see, for example, the post-mortem on the 1974 Indian nuclear test.

With the substantial declassification of an engrossing intelligence post-mortem on the October 1973 Arab-Israeli war it is possible to get a close look at one of the Intelligence Community Staff post-mortems of an “intelligence failure.” In the earlier version released by CIA all of the supporting material on intelligence collection and analysis was excised; nothing was released from pages 5 through 20, and much of pages 21 through 26 was also exempted.  That the other members of ISCAP were able to work with CIA in determining what needed continued protection, e.g. details on human intelligence (Humint) and communications intelligence (Comint) and what could be easily released is a real tribute to the inter-agency process, but also further evidence of CIA overclassification.  While it would be fascinating to read the discussion on communications intelligence that ISCAP exempted from declassification, as well as the coverage of photographic intelligence, it is not surprising that the Panel did not release those details. (Note 12)

This absorbing document, which was the “IC Staff equivalent of a best seller,” offers many insights into relatively obscure corners of intelligence work on the Arab-Israeli conflict during 1973. (Note 13) For example, in October 1998, at a retrospective conference on the October War, State Department INR staffer Roger Merrick recalled a paper he wrote in May 1973 predicting a “better than 50 percent change of major hostilities” within six months. (Note 14)  In the years that have passed since 1998, efforts by various researchers to locate that prescient INR estimate have failed; it is still buried in government archives. Nevertheless, with the declassification of this post-mortem, the section on “A Case of Wisdom Lost,” provides for the first time a detailed description of, and key quotations from, what the authors characterize as a “remarkable memorandum.” According to the INR paper, Egyptian President Anwar Sadat would seek war with Israel not for specific military objectives but to spur “big power” diplomatic intervention in the Arab-Israeli conflict. “If the UN debate of next week produces no convincing movement in the Egyptian-Israeli impasse, our view is that the resumption of hostilities will become a better than even bet.”  As INR analysts had been skeptical of President Lyndon Johnson’s Vietnam policy and would reject President George W. Bush’s claims about an Iraqi nuclear program, what accounted for such prescience would be worth systematic study.

Document 5: NIE 6-86, “The Likelihood of Nuclear Acts by Terrorist Groups,” April 1986, Secret, excised copy

In light of a “new surge” of terrorist acts against NATO installations and “new levels of terrorist violence” in the Middle East, intelligence analyst tried to estimate the possibility that Western European or Middle Eastern terrorists could and would undertake “high-level” acts of nuclear terrorism involving mass casualties.  While the estimators identified a number of possible scenarios for terrorist acts involving nuclear weapons and materials, including building a bomb, seizing U.S. weapons deployed in NATO Europe, or sabotaging a nuclear reactors, they acknowledged the great difficulty of making “confident or precise estimates” about their likelihood.  So far, Middle East and Western European terrorist groups had been training in numbers too small (the estimate of the required number is excised in the text) to overrun a nuclear installation, but the “expanded use of vehicle bombs” in the Middle East raised the possibility that terrorists could use a huge truck bomb to “cause extensive damage to a nuclear weapons site, a fissile material production facility, or a nuclear power reactor without risking their group by attempting to penetrate the security of these installations.”

Even terrorists have their limits, according to the estimators, who identified “norms of terrorist behavior” that, so far, had provided inhibitions against acts of nuclear terrorism.  The norms included prudence in taking risks, attentiveness to “political consequences of a terrorist act”, and frugality in using resources.  For example, the norms were not weakening for Middle East terrorist groups, such as Hezbollah or the Abu Nidel Group, which did take world opinion into account. Moreover, none of the groups had the “psychological state of mind necessarily deliberately to kill the tens of thousands that might result from even a small nuclear explosion.”  The “spate of suicide attacks” in the Middle East was not thought to provide an avenue for nuclear terrorism, neither was the hostility of state actors in the Middle East, such as Libya or Iran.

Thinking outside the box, the estimators did acknowledge the possibility that groups with a different “state of mind” could emerge, without the inhibitions mentioned earlier, and undertake the “most malevolent and harmful kinds” of nuclear terrorism.”  It would require “terrorists not subject to current inhibitions, who may not yet exist.”  Such a group could be a cult with an “apocalyptic view of history” seeing “itself as the agent of change for bringing about” the end of civilization.

Although the CIA denied this document in its entirety, ISCAP decided to release it in excised form, withholding information about nuclear reactors, NATO nuclear installations, and U.S. nuclear deployments overseas, among other issues.

Document 6:  Central Intelligence Agency, “Office of Policy Coordination, 1948-1952,” n.d., Secret, Excised copy

That ISCAP could release the first five documents is to its credit.  As mentioned above, however, ISCAP could not oppose the CIA’s decision to use the CIA Information Act to withhold nearly the entirety of an historical report on the history of the Office of Policy Coordination, the U.S. government’s first peace-time covert action organization.   The introduction to the report is heavily excised but gives a sketchy idea of the scope of OPC activity. The second part, “Enabling Directives and Related Actions,” was substantively released.

Created by the National Security Council in 1948, the OPC’s mission was to wage the clandestine confrontation with the Communist movement and Soviet power, initially in Western Europe, but also in the Middle East and East Asia, with forays in Eastern Europe and elsewhere. Under NSC paper 10/2 (Note 15), approved by the Truman administration in June 1948, the OPC would have responsibility for such clandestine activities as: "propaganda; economic warfare; preventive direct action, including sabotage, demolition and evacuation measures; subversion against hostile states, including assistance to underground resistance movements, guerrillas and refugee liberations [sic] groups, and support of indigenous anti-Communist elements in threatened countries of the free world.” Anything else, “armed conflict” and espionage/counter-espionage was left to the armed forces or the CIA’s Office of Special Operations.

The CIA did not need to use its formal veto over ISCAP decisions because it could use the operational files exemption. Nevertheless, the CIA’s insistence on using this exemption to withhold most of the report is slightly puzzling.  The Agency has already approved the release of once highly sensitive information about its early covert political operations; for example, the recent volume in the Foreign Relations series on The Intelligence Community, 1950-1955 includes fascinating detail on the U.S. Army’s pressure on OPC to undertake clandestine efforts to establish “resistance mechanisms” in Eastern Europe, including Poland (see documents 142 and 145).  These efforts put the OPC in an embarrassing position when its officials learned that they had been victims of a Soviet/Polish intelligence deception. (Note 16)  The same FRUS volume includes much additional information about the history of the Office of Policy Coordination.  No doubt the OPC history includes some of this information, but the CIA withheld it anyway.  This decision points to the need for a legislative solution to the problem of CIA overclassification.  The Agency has a legitimate need to protect some operational files, but somewhere the rule of reason has to apply so the Agency cannot keep its history classified indefinitely.

Also worth noting is that the journalist Evan Thomas had access to the OPC history when he was writing his CIA history, The Very Best Men.  As part of a special access arrangement, the Agency allowed Thomas to read a number of histories produced by the CIA’s Clandestine Services, including “Office of Policy Coordination, 1948-1952.” (Note 17)  In end-notes, (e.g., note 3 at page 355, note 16 at page 358, and note 20 at page 360), Thomas provides quotes and information from this history, all of which the CIA excised when it processed the mandatory review request.

2. Report of the Commission on Protecting and Reducing Government Secrecy (Washington, D.C.: U.S. Government Printing Office, 1997) 23, 70.

3. The outline of such a proposal may be found in the OMB Watch report, Moving Toward a 21st Century Right-to-Know Agenda.  The editor thanks Steve Aftergood, Federation of American Scientists, for help with this formulation.

4. The CIA first challenged ISCAP’s authority over its information in the late 1990s when ISCAP was becoming a popular venue for final appeals.  Unhappy with an arrangement where it could be outvoted, the Agency brought the issue to a head in 1999 by challenging ISCAP’s authority to weigh in on issues involving intelligence sources and methods.  At the request of ISOO’s then-director, and ISCAP executive secretary Steven Garfinkel, the Justice Department’s Office of Legal Counsel (OLC) carefully reviewed the issues and decided in favor of ISCAP: “We conclude that the DCI's determinations are subject to substantive ISCAP review” because “information concerning intelligence sources and methods is subject to mandatory declassification review.” Therefore, “ISCAP has jurisdiction to review the substance of such declassification decisions.”  Office of Legal Counsel, Memorandum, “Re: ISCAP Jurisdiction over Classification Decisions by the Director of Central Intelligence Regarding Intelligence Sources and Methods,” 5 October 1999.

5. Executive Order 13292, “Further Amendment to Executive Order 12958, As Amended, Classified National Security Information.”

6. Avner Cohen, Israel and the Bomb, (New York: Columbia University Press, 1999), 84.

7. For the Judge’s decision, see http://www.gwu.edu/~nsarchiv/news/20000808/index.html

8. For the leaks, see Michael Getler, “A-Arms Believed in Egypt; Scud Missiles Seen Under Soviet Control,” Washington Post, 21 November 1973, and John W. Finney, “Officials Suspect Russians Sent Atom Arms to Egypt, Atomic Weapons Moved, U.S. Suspects,” The New York Times, 22 November 1973.

9. Jeffrey T. Richelson, “Task Force 157: The U.S. Navy’s Secret Intelligence Service, 1966-77,” Intelligence and National Security 11 (1996), 116-119.  For more on Task Force 157, see Richelson’s briefing book, “the Pentagon’s Spies,” 23 May 2001..

10. Richard W. Shyrock, “The Intelligence Community Post-Mortem Program, 1973-1975,” Studies in Intelligence 21 (1977): 15-28 (declassified for CIA Research Took [CREST], National Archives Library, College Park, MD).  For a few examples of post-mortems from 1958 and 1960, see
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB155/prolif-4c.pdf  and http://www.gwu.edu/~nsarchiv/israel/documents/reveal/01-01.htm

11. Douglas F. Garthoff, Directors of Central Intelligence as Leaders of the U.S. Intelligence Community, 1946-2005 (Washington, D.C.: Center for the Study of Intelligence, 2005), 71-73; Shryock, “The Intelligence Community Post-Mortem Program,”15-16.

12. For more on the intelligence community during the October War, see Matthew M. Aid, The Secret Sentry: The Untold History of the National Security Agency (New York: Metropolitan Books, 2009), 156-157.

13. Shyrock, “The Intelligence Community Post-Mortem Program,” 16.

14. Richard P. Parker, ed., The October War: A Retrospective (Gainesville, FL: University Press of Florida, 2001), 89, 113-116.

15. U.S. Department of State, Foreign Relations of the United States, 1945-1950: Emergence of the Intelligence Establishment (Washington, D.C., Government Printing Office, 1996), Documents 291 and 292.

16.  For accounts of CIA support for Wolnosc I Niepondenosc (“Freedom and Independence”), see Thomas Powers, The Man who Kept the Secrets: Richard Helms and the CIA (New York, Random House, 1979), 40-43, and Tim Weiner, Legacy of Ashes: The History of the CIA (New York: Doubleday, 2007), 67-68.

17. Evan Thomas, The Very Best Men: Four Who Dared: The Early Years of the CIA (New York: Simon & Shuster, 1995), 344-345.

 

 

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