Effective 2014 April 08, the Office of the Director of National Intelligence (ODNI) which oversees 16 US national intelligence agencies including the NSA, issued INSTRUCTION 80.04 (PDF),
an updated pre-publication clearance policy that significantly increases restrictions on what current and former members of the ODNI, its agencies, contractors and numerous other parties can reveal in any public document or discussion without prior clearance from ODNI.
This gag policy was the subject of diaries by Don midwest and David Harris Gershon
Significantly, this policy revision:
• removed distinctions between "classified" and "unclassified" information, applying policy simply to "information", extending reach to virtually any and all information at ODNI discretion
• prohibits acknowledging even the existence of information leaks in public regardless of whether it is public knowledge
• requires any disclosures to be "consistent with the official ODNI position or message"
... as well as numerous other rule changes that merit consideration.
Since April 08, Gen. Michael Hayden and Gen. Keith Alexander, both former officials of/under the ODNI have participated in extensive public debates and press interviews where they openly discussed details of policy, procedure and methods used by the NSA as well as discoursing on NSA programs revealed in leaks made by Edward Snowden, the subject of the leaks themselves and Mr. Snowden's role.
We now should consider if they violated the ODNI rules and should be disciplined or if the ODNI pre-approved the complete content of their propaganda disclosures for purity compliance.
Report after the orange gag rag for a stroll down ODNI Memo Lane to the Inner Party.
Facts in Evidence - Mike & Keith's Excellent Adventure
Not long after the directive was issued, certain former officials appeared in public forums to debate and defend or discourse on the policies, practices and methods used by the NSA including to justify the existence of programs and methods not publicly known until they were revealed by information Edward Snowden leaked to the press.
If you haven't seen or read the items linked below it's a significant (if worthwhile) time investment to do so, but since it's Mother's Day, I'll try to be an honest broker in summarizing.
Gen. Michael Hayden - Munk Debate on State Surveillance, May 03
Subject Page Link - Including Pre/Post Debate Commentary and Poll Results
Livestream Video Page Link
The transcript requires a Munk membership so I have not linked it.
This wide-ranging debate on state surveillance with Hayden & Deshowitz vs. Greenwald & Ohanian included discussion by Hayden on:
• General & specific policies, activities & methods employed by the NSA & CIA
• Specific reference to previously secret programs revealed by Snowden leaks
• Specific discussion about the fact of the Snowden leaks as an event
• Opinions offered on the appropriateness of NSA and other surveillance activities
• But NOT a disclaimer stating opinions offered where not endorsed by the government
On the face of it, very much of what Hayden said would have required clearance and it's reasonable to question if this was properly vetted and passes muster.
Gen. Keith Alexander - Australian Financial Examiner interview, May 08
Full Transcript of the Interview
Feature Article with Video Excerpts
In this friendly, soft-ball interview in an Australian business journal, Alexander pretty much sticks to the script of talking points in his trademark monotone, robotic delivery, but including some rather more emotional complaints and shots at adversaries. However, he does specifically refer to:
• General & specific policies, activities & methods employed by the NSA and CIA
• Specific discussion about the fact of the Snowden leaks as an event
• Details of the Snowden leaks including speculation on the extent of the leaks
• Opinions offered on the appropriateness of NSA and other surveillance activities
• Opinions on Presidents Bush and Obama relative to decision-making
• Opinions of the Pulitzer Prize awarded for coverage of the Snowden leaks
Alexander, as always, is in control and polished. Arguably, he might have cleared his talking points and given the softball nature of the interview he has no problem controlling the discussion. But, offering opinions, he does not state a disclaimer that what he says is not endorsed by the US Government, a requirement of the regulation.
In fact, in stating his purpose, Alexander notes:
So, my purpose for doing this interview, Chris, is to help set the record straight. To give folks the real facts. To tell people what NSA is doing, why we’re doing it, and why we’ve been asked to do it.
Certainly sounds like his intent is to speak for the NSA, of which he is no longer a member.
So how much is too much?
Key points of INSTRUCTION 80.04
For the sake of a reasonable discussion, I ask you to tolerate the length of the next section, I hope to make it worthwhile.
I think it's worth reading the entire memo (PDF) which is only 5 pages, but some key passages include:
4. APPLICABILITY: This Instruction applies to current and former ODNI permanent cadre employees; ODNI staff reserve (i.e., time-limited) cadre employees, including Highly Qualified Experts; federal civilian detailees; military detailees; Intergovernmental Personnel Act detailees; Presidential appointees; special government employees; assignees; and contractors (collectively, "individuals" and "personnel").
This means the policy applies to all former officers, employees and contractors, including the long line of those who have passed through the revolving doors of the 17 agencies and their contractors, many of whom are now consultants to news organizations or private industry, or have been pressed into service by the Administration to defend the NSA.
We can now suppose these thousands of persons, including Messrs. Hayden and Alexander should remain silent unless they clear any intended disclosures beforehand. And nix the pillow talk, please.
5. DEFINITIONS:
A. Chatham House Rule: An understanding, spoken or unspoken, that during academic discussions, the topics discussed and opinions relayed will NOT be attributed to individuals or organizations. This rule is intended to allow the free discussion of academic ideas and opinions without attribution.
B. Non-official publication: The category of publications created by ODNI personnel for personal, professional, or commercial use that will be made available to the public. (e.g., resumes, books, op-eds, personal blogs).
C. Official publication: The category of publications created by ODNI personnel as part of their duties on behalf of the ODNI, the DNI, the Intelligence Community (IC), or the U.S. Government (USG) that will be made available to the public (e.g., speeches, newsletters, official web pages, outreach documents, brochures).
D. Publication: Any information created in part (co-authored) or wholly by ODNI personnel intended for public release, regardless of the medium by which it will be released (i.e., written, voice, or electronic) that discusses operations, business practices, or information related to the ODNI, the IC, or national security.
E. Release: Allowing information to be made available to the public.
Note that any form of disclosure, written or spoken, formal or informal, falls within defined categories and release is merely allowing information to be made available.
Also note the Chatham House Rule, which enables academic freedom, is effectively voided by a later clause suggesting any persons covered would be forbidden from participating without prior clearance. I wonder how many academics presently fall into this category and the fate of their coursework and lectures.
6. POLICY: The ODNI has a security obligation and legal responsibility under EO 12333 and EO 13526 to safeguard sensitive intelligence information and prevent its unauthorized publication as defined in paragraph 5.D. The Director/Information Management Division (D/IMD) or designee in the IC Chief Information Officer's (IC CIO) office will serve as the exclusive ODNI authority for approval of all ODNI public release reviews. All ODNI personnel are required to submit all official and non-official information intended for public release for review. Any 'For Official Use Only' (FOUO) information intended for State, Local, Tribal, Public Sector (SLTP) and non-Title-50 entities must be approved by the IMD. The IMD will coordinate, as necessary, with the Assistant DNI for Partner Engagement (ADNIIPE) on any FOUO information to be shared with foreign partners. FOUO information disseminated within the USG (e.g., Department<; of State, Defense, Homeland Security, Treasury) does not require an IMD review. Pre-publication review must be conducted before any uncleared personnel can receive the information, and before peer review can be conducted via unsecure channels. This Instruction does not release individuals from their obligation to fully comply with nondisclosure agreements (NDAs), nor does it authorize individuals to alter the terms of such agreements. In case of any conflict between this Instruction and an NDA, the NDA shall govern. ODNI pre-publication reviews will be executed as follows:
[snip]
Translation: Everything must be cleared by a formal review EXCEPT information provided to designated governmental agencies.
What follows are bullet points of policy edited [ ... ] for brevity, with stress mine:
A. Pre-submission: ....
(2) Sourcing: Correct unclassified sourcing is critical in executing pre-publication review. ODNI personnel must not use sourcing that comes from known leaks, or unauthorized disclosures of sensitive information. The use of such information in a publication can confirm the validity of an unauthorized disclosure and cause further harm to national security. ODNI personnel are not authorized to use anonymous sourcing.
(3) The Public Affairs Office (PAO) will ensure that official information intended for public release is consistent with the official ODNI position or message. The PAO will approve or disapprove the use of official ODNI seals and letterhead associated with the intended release, as deemed appropriate.
...
(6) ODNI personnel must, prior to participating in open discussion venues such as forums, panels, round tables, and questions and answer (Q&A) sessions, comply with the following conditions:
(a) ODNI personnel must obtain approval from the PAO to represent the ODNI in any capacity at any public forum.
(b) ODNI personnel expecting to engage in unstructured or free-form discussions about operations, business practices, or information related to the ODNI, the IC, or national security must prepare an outline of the topics to be discussed or the agenda to be followed, and provide to the IMD anticipated potential questions and ODNI responses.
(7) Required Disclaimer: Approval of non-official publications does not imply endorsement by the ODNI, IC, or national security. The following disclaimer must be provided in non-official publications created by ODNI personnel who express an opinion about the ODNI, IC, or USG :
"The views expressed in (this publication/these remarks) are the author's and do not imply endorsement by the Office of the Director of National Intelligence or any other U.S. Government agency."
This language is not required for resumes, bios, or as others exempted by the D/IMD.
...
F. Consequences for Non-Compliance: Failure to comply with this Instruction may result in the imposition of civil and administrative penalties, and may result in the loss of security clearances and accesses.
G. Non-attribution during discussions (Chatham House Rule): ODNI personnel who participate in environments where the Chatham House Rule applies are not authorized to discuss information or topics that are not authorized for public release.
Boiler-clad aside, we should note that,
as experts such as Steven Aftergood have suggested, the effect of the regulations is to gag both present and former actors in the system to absolute silence on issues pertaining any information, classified or unclassified, and particular, gaging them from discussing the existence or content of any leaks even if they are front page news.
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Perhaps we should ask:
• Have Hayden and Alexander complied with the directive?
• If they sought and obtained clearance, how would we know that?
• If they sought and obtained clearance, and in the absence of disclaimers, shall we suppose what they said is consistent with "official ODNI position or message" and that they speak for the Administration?
• If they did not seek clearance, is this another careless breach of NSA security and does the information they disclosed constitute another leaking incident?
• And if so, will the Justice Department seek their arrest and prosecute them under the Espionage Act as they have other leakers and whistle blowers?
What is really clear about the policy effective 2014 April 08 is the ODNI intends to to clamp-down and gag current and past officers, operatives and contractors.
What is not clear, given Hayden and Alexander's public disclosures after the rules went into effect, is if, how and to what end these regulations will be enforced and the competence of the ODNI to do so.
And what say you?
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UPDATE 2014.05.12
As Don midwest notes below, on Friday May 09 the ODNI issued an email memo summarizing changes to policy 80.04 (PDF) to the New York Times.
In the memo, ODNI asserts the media have misconstrued the policy. While legal experts may disagree, here are the arguments ODNI offered to The Times to interpret the policy:
From the PAO: Updates to ODNI Pre-Publication Review Policy
Recent media reports have misconstrued ODNI’s policy for pre-publication of information to be publicly released. The purpose of pre-publication review is to ensure that classified and sensitive material is not improperly disclosed and that official ODNI policy is not misstated.
ODNI Instructions 80.14/2007-6, “ODNI Instruction for ODNI Pre-Publication Review of Material Prepared for Public Dissemination” and 80.04, “Pre-Publication Review of Unclassified Material for Official Dissemination” were recently combined into the updated ODNI Instruction 80.04, “ODNI Pre-Publication Review of Information to be Publicly Released.” The revised policy is not significantly different from the previous two policies.
Below are key elements from the updated ODNI Instruction 80.04:
1. Non-Disclosure Agreements (NDA): All ODNI employees are required to sign an NDA, which is binding even after the employee leaves the IC. Instruction 80.04 does not add any substantive requirements to the NDAs and simply establishes the procedures by which those requirements will be implemented.
2. Sourcing: ODNI employees, current and former, may not rely upon unauthorized disclosures as a source for factual statements or as proof that the information is no longer classified. Nor may they cite “anonymous sources” from media reporting if the citation, combined with their perceived inside knowledge, would tend to confirm classified information. They may cite more generally to media as long as by doing so they do not confirm classified information.
3. Official publication: Official publication by current ODNI employees (i.e., publications that are intended to reflect official ODNI views) will be reviewed for consistency with ODNI position. This does not apply to former employees or current employees publishing in their personal capacity using the required disclaimer. All material will be reviewed for potentially classified or otherwise sensitive non- public information.
4. Media contact: Former employees may engage with the media, but must provide talking points or high level outlines for review to the extent possible. DNI Pre-Pub will only look for classified or otherwise sensitive, non-public information. It is understood that there are times that former employees may receive calls for comment from the media, and there simply is not time to follow the pre-publication review process. Current employees are bound by ICD 119 regarding media contact.
5. FOUO material: FOUO material that is routinely provided to State, Local, Tribal, Public Sector (SLTP) or NT-50s as part of an information sharing agreement is not subject to pre-publication review. However, any dissemination outside of those channels must come through DNI Pre-Pub.
6. Review: DNI Pre-Pub makes every attempt to ease the process by working with requesters. In most cases, information that may be of concern can either be rewritten or cited to other acceptable sources. Timelines for review are determined by type of request, but generally the IMD requires 15 business days for official publications and no more than 30 calendar days for non-official publications.
[Provided by e-mail to the Times from ODNI PAO, May 9, 2014]
I think the key points of contention are items 2, 3 and 4.
In 2, ODNI seems to be arguing around the broadly defined gag restrictions the policy memo clearly states, spinning this by saying operatives "may not rely upon unauthorized disclosures as a source for factual statements or as proof that the information is no longer classified."
That changes nothing. If ODNI is asserting such information would still be classified after pubic disclose, then public discussion by subject persons would clearly be prohibited, you can't have it both ways unless you accept the doublespeak double-talk.
In 3, ODNI clarifies its intent that the imposition of "official views" only applies to "official documents" and that personal publication by past or present members is acceptable provided they include a required disclaimer. Of course, the policy memo does not quite put it that way and leaves plenty of wiggle room for ODNI to retaliate at will.
But fair enough; if ODNI is now saying such persons are free to publish despite the additional and numerous constraints if they jump through the required hoops and include that all important disclaimer, then fine, lets put it to a test: all such persons crossing that line in publication and media should provide or recite exactly word for word the disclaimer because that is what is required.
So far, Hayden and Alexander fail the test, and so does the ODNI if it does not sanction them.
In 4, ODNI restates the requirement that operatives clear subject matter and talking points through the process before making media contacts. and then clarifies what it would vet in that process. Then they then go on to contradict themselves by stating "It is understood that there are times that former employees may receive calls for comment from the media, and there simply is not time to follow the pre-publication review process. Current employees are bound by ICD 119 regarding media contact."
So then, if the rules don't really apply to former employees and contractors if it is not convenient does this gets Hayden, Alexander and Snowden off the hook because they are no longer officially employed?
Very interesting. I stand corrected, LOL. This is GREAT NEWS for Ed Snowden.
FAS now has the complete suite of documents posted in PDF at their website, the direct links in ascending chronological order:
Superseded Instruction 80.14 (dated July 25, 2007)
Superseded Instruction 80.04 (dated August 5, 2009)
Current Instruction 80.04 (dated April 8, 2014)
Clarification memo from ODNI Public Affairs Office (dated May 9, 2014)
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However you interpret it, however it is spun, the bottom line is that the policy stands as written and ODNI has the legal means to gag present and former cadres, operators, contractors and other hangers-on, and to wield those powers at their own discretion to prevent, punish or allow disclosures and leaks as they wish.
And that is one feature of a police state. History shows it's a slippery-slope. Caution.