Editor’s Note: Access to American intelligence is high on the list of what allies want and need. Defense Department procedures allow for intelligence sharing, but as RAND’s Andrew Radin argues, the procedures are complex, confusing, and often too restrictive.
Allies and partners play a pivotal role in the Defense Department’s recently released National Defense Strategy (NDS). The strategy is a “call to action… to incorporate Allies and partners at every stage of defense planning.” According to the strategy, “Alliances and partnerships are our greatest global strategic asset” and a core element of how the United States hopes to compete with both Russia and China together. But for this cooperation to work—especially the combined planning, operations, and investments required by the strategy—allies may demand details of U.S. military plans and activities.
US foreign disclosure policy poses a challenge to the close coordination of the strategy envisioned. There are complex regulations and a developed bureaucracy in place to vet when and why the Department of Defense can release classified information to foreign countries. To achieve its stated goal of increasing the capabilities of allies and partners, while still protecting U.S. assets, the Defense Department should rethink its disclosure policy.
National Security Decision Memo (NSDM) 119, issued in 1971, remains the central document for Defense Department disclosure policy today. As the Nixon administration said at the time, “It is the policy of the United States government to treat military information classified as a national security asset that must be preserved and protected and disclosed to foreign governments and international organizations only where appropriate. clearly defined for the United States.”
The first part of this policy is simple: Classified information must be protected from disclosure or retransmission and recipients need to have appropriate safeguards in place. The second part – limiting disclosure when there is a “clearly defined benefit” – is where things get ambiguous. Is the need for an advantage that is clearly surprising about the possibility of sharing information that may be more widely in the interest of the US? Who should evaluate this advantage, and to what extent?
Current regulations, in general, apply a relatively restrictive approach based on this general policy. Before releasing documents or verbal information to any foreign counterpart, including close allies such as the United Kingdom or Australia, military officers must have approval from specially designated foreign disclosure officers, even if senior leadership directs and approves the engagement. For partnerships or important areas where there is no prior approval to disclose information, US officials may face a Catch-22 where they cannot reveal enough information to explain why greater cooperation is worthwhile.
Digging into some of the details of the existing regulations shows how each layer of bureaucracy has added more restrictions as they seek to implement NSDM 119. Officials in the Department of Defense often face greater obstacles in sharing information with allies and partners than The original policy statement may contain. intended, or than senior policy makers may prefer to emphasize closer cooperation with allies in top-level strategy documents, as well as domain- or region-specific declarations.
At the top of the regulatory chain is an interagency document called National Disclosure Policy-1 (NDP-1). While NDP-1 itself is closely guarded, publicly released Defense Department documents specify criteria and conditions from NDP-1 that must be met for disclosure, including that “disclosure is consistent with the military and security objectives of the United States,” and “disclosure will result in benefits to the United States at least equivalent to the value of the information disclosed.” This second criterion involves a transactional logic for sharing classified information, but in many cases the value of sharing can be the maintenance and improvement of a general relationship rather than a quid-pro-quo exchange.
Department policies replicate directives from higher-level policies and delegate disclosure decisions to a primary disclosure authority within each component of the Department of Defense. Each component (including military departments, combatant commands, and Department of Defense agencies) can only authorize the release of information from those components. This can create significant delays when disclosure decisions are directed at different offices, and make it difficult to share documents containing information from multiple organizations.
Within the military departments, disclosure decisions are further delegated to Foreign Disclosure Officers (FDOs, or, for the Navy, Delegated Disclosure Authorities). The regulations allow these officials to interpret the NDP-1 criteria and other regulations, or in some cases provide a process for exceptions to be considered by an interagency body, the National Disclosure Policy Committee, which also administers the NDP-1. There is some variation in practice—for example, the Army appears to allow oral or visual disclosure without an explicit FDO decision in some circumstances.
The FDO system has a pervasive impact on how Defense Department organizations think about foreign engagement through issues and activities. Due to the amount of bureaucratic processes required to clear disclosures, a visit from a foreign counterpart is time-consuming to conduct, even if the topics on the agenda are relatively benign. Army regulations, for example, identify a 15-day deadline for an FDO decision even to monitor unclassified information. A foreign exchange officer welcomed to a headquarters may face limitations on what can be disclosed, or be frustrated by delays in deciding what can be disclosed. Department of Defense organizations have limited scope, and the need to go through the foreign disclosure process can be a disincentive to an office that discourages it from pursuing greater cooperation with allies and partners. Collaboration on acquisition-related efforts can be especially difficult, because of the sensitivity of trade-offs to US advantages, even in collaboration with advanced technology allies.
The current regulations, and the delays or restrictions on disclosure they produce, appear to limit cooperation in ways that do not consider the overall benefits of the United States’ international relations. Increasing the number and efficiency of FDOs would help, but it would not address the underlying question of whether or not the process in place is appropriate when prioritizing greater sharing. There are also reports of practical challenges for FDOs. As Capt. Lucas Thoma writes for the Modern Warfare Institute, the military service personnel system does not track FDO skills, preventing military personnel from investing effort in specializing in foreign disclosures. Disclosure processes also do not appear to be integrated into professional military education, raising questions about whether the wider force is aware of them.
Different marking and release procedures between the Department of Defense and the intelligence community are another challenge. Intelligence community marketing regulations require the application of a NOFORN (nondisclosure to foreign nationals) or disclosure mark indicating whether information may be shared, and if so, with which countries; its practice discourages the use of a simple mark “SECRET”. The Department of Defense policy, however, states that (except for three exceptions) there is no “authorized use of DoD for NOFORN objections on non-intelligence information,” and encourages the use of a simple “SECRET” designation. Unlike the Department of Defense, intelligence rules allow the release of documents by non-originating entities unless a document is marked with additional restrictions. Officials can be understandably confused by divergent practices, especially where intelligence and non-intelligence information are combined.
The current regulatory system is not the only possible application of NSDM 119. Current Department of Defense and service regulations are approved by the secretary of defense and other directors, and could be overridden by them. Those officials may issue broader exceptions to specific areas, such as space, over which allies and U.S. officials have expressed particular frustration over current classification procedures.
One place to look for a model on disclosure policy is the multinational counterterrorism operations in Afghanistan, Iraq, and Syria. Defense Department regulations contain a general exception for disclosure to an “allied force actively participating … in conditions of actual or imminent hostilities.” A Defense Department Inspector General’s report drafted in 2016 noted that partners had been granted critical information approval under NDP-1, although the report also identified “several gaps in time” between the start of operations and policy sharing information and partners. For many allied officers, working with the United States in Afghanistan or the Middle East was a formative experience, and could offer many lessons for their current priorities. For example, a similar authorization could be expanded to space, which Chief of Space Operations General John Raymond described as a conflict zone where the United States will succeed only “if we find common cause with our allies and partners.”
To be sure, the United States must remain vigilant in protecting its secrets. While complaints from allies and partners are an important measure of the current difficulties, they should not be enough to justify a change in US policy—after all, allies may have different interests than the United States. But the process as it stands presents many obstacles, and has also frustrated US policymakers. And despite potential U.S. policy disagreements with potential recipients of sensitive information, these countries include close and trusted allies, many of which have received and protected classified U.S. information in the past.
The recently published NDS recognizes the need to “reduce institutional barriers” to information sharing, and proposes to improve existing publication processes and authorizations. But only a broader rethink, rather than incremental changes, can address the restrictive conglomeration of regulations that make up the current system. The Department of Defense should begin by assessing whether and how existing disclosure processes limit potential cooperation. It may make sense to give Department of Defense personnel greater authority for non-FDO disclosures, and explore the use of security classification guidelines to allow them to release some information. Additional training may be necessary, and formal authority for FDOs would not be suspended, but could have the benefit of increasing the speed of cooperation. An overdue reexamination can ensure that the regulations do not impede the broader strategic goals of the United States.