Posts from August, 2006

NSA Mobilizes Against Leaks

The National Security Agency has instructed all of its employees to “actively” watch for unauthorized disclosures of classified information in the press and online, and to report such disclosures to the authorities.

“All NSA Components shall actively monitor media for the purpose of identifying unauthorized disclosures of classified NSA information,” a March 20 NSA directive stated.

“Media” here is defined as “any print, electronic, or broadcast outlet (including blogs) where information is made available to the general public.”

The new NSA policy on leaks was first reported by Siobhan Gorman in “NSA Strives to Plug Leaks,” Baltimore Sun, July 23, 2006.

An annex to the NSA directive lists a series of questions to be asked about unauthorized disclosures in order to assess their significance, including: “Is the disclosed information accurate?” Has the information been requested under the Freedom of Information Act? “If yes, identify the requester.”

In response to a FOIA request from the Federation of American Scientists earlier this month, the National Security Agency refused to release most of the new directive (pdf), which is marked “for official use only.”

But the full text was obtained independently by Secrecy News.

See “Reporting Unauthorized Media Disclosures of Classified NSA/CSS Information,” NSA/CSS Policy 1-27, 20 March 2006.

DNI Intelligence Community Directives Disclosed

The policy infrastructure of U.S. intelligence community is defined by directives issued by the Director of National Intelligence on everything from security policy to roles and missions to relations with Congress.

The new system of policy statements, known as Intelligence Community Directives (ICDs), is the successor to the former Director of Central Intelligence Directives (DCIDs). The new ICDs are gradually supplementing, modifying or replacing the existing DCIDs.

The DNI has also issued a series of Intelligence Community Policy Memorandums (ICPMs), which are initial statements of policy that have not yet been formalized as an ICD.

Several ICDs and ICPMs have recently been released by the Office of the DNI in response to a Freedom of Information Act request from the Federation of American Scientists.

They cover such topics as open source intelligence, personnel security, the role of the IC analytic ombudsman, the roles of the various Deputy Directors of National Intelligence, and the use of portable electronic devices in secure facilities.

Selected CRS Reports

Some notable recent reports of the Congressional Research Service include the following (all pdf).

“Extraterritorial Application of American Criminal Law,” updated August 11, 2006.

“U.S. Nuclear Weapons: Changes in Policy and Force Structure,” updated August 10, 2006.

“NATO in Afghanistan: A Test of the Transatlantic Alliance,” August 22, 2006.

“Radioactive Tank Waste from the Past Production of Nuclear Weapons: Background and Issues for Congress,” updated June 13, 2006.

FISA Surveillance Can Target Non-Spies

The Foreign Intelligence Surveillance Act (FISA) can be used to monitor U.S. persons who engage in unlawful collection of classified or controlled information even if they are not acting on behalf of a foreign power.

That is the upshot of an August 14 ruling (pdf) disclosed last week in the case of two former officials of the American Israel Public Affairs Committee (AIPAC).

The defendants had argued that they were improperly subjected to FISA surveillance since FISA requires that the target be “an agent of a foreign power” and, they insist, they were never acting on behalf of a foreign power.

Judge T.S. Ellis, III, rejected that defense argument.

But in doing so, he redefined and significantly expanded the meaning of “agent of a foreign power” to include non-foreign agents who may be involved in unlawful information gathering.

FISA “plainly allows a FISC [Foreign Intelligence Surveillance Court] judge to issue an order allowing the surveillance or physical search if there is probable cause to believe that the target… may … be involved in unlawful clandestine intelligence activities, or in knowingly aiding and abetting such activities,” Judge Ellis wrote.

And what are “unlawful clandestine intelligence activities”?

“Although the phrase ‘clandestine intelligence gathering activities’ is not defined in FISA,” he noted, “such ‘activities’ would include, for example, ‘collection or transmission of information or material that is not generally available to the public’.”

Some such collection and transmission of information is protected by the First Amendment, the Court acknowledged, and cannot by itself serve as the basis for FISA surveillance.

But earlier this month, Judge Ellis ruled that the collection and transmission of national defense information can be a violation of the Espionage Act, even if it is conducted by private citizens who are not spies, if they act knowingly and willfully with an awareness that the information is restricted and that it could be used to harm the United States or to aid a foreign nation.

Building on that prior ruling, the Court has now redefined the meaning of “agent of a foreign power” so as to justify the FISA surveillance in the AIPAC case.

“The FISC [the Foreign Intelligence Surveillance Court that originally authorized surveillance of the AIPAC defendants] had ample probable cause to believe that the targets were agents of a foreign power quite apart from their First Amendment lobbying activities.”

But under the Court’s new definition, “agents of a foreign power” need not literally be “agents of a foreign power.” Rather, the term now includes other persons who engage in unlawful information gathering.

“While the defendants’ lobbying activities are generally protected by the First Amendment, willful violations of sec. 793 [the provision of the Espionage Act that prohibits collection and disclosure of national defense information] are not, and … the FISC had probable cause to believe that such violations had occurred in this case,” Judge Ellis explained.

To reiterate: the Court did not find that there was any reason to believe the defendants were acting on behalf of a foreign power. (The prosecution has conceded that they were not.)

Instead, Judge Ellis expanded the scope of the term “agent of a foreign power” to include someone who clandestinely gathers restricted information in a probable violation of the Espionage Act, even if there is no reason to suppose he is a spy or a terrorist.

By the Court’s logic, it does not take an big imaginative leap to envision the application of FISA surveillance to members of the press or others who deliberately solicit classified or controlled information or who report on classified programs in willful defiance of official directives to the contrary.

A former FBI official with extensive experience in FISA policy and practice expressed doubt that the FISA could now be easily invoked against the press or the public for ordinary reporting or research activities since, he said, these do not normally involve the requisite intent to violate the law.

“There is quite a bit on the periphery that is not included in this Order,” the official told Secrecy News.

“The judge referred to the information ‘not generally available to the public’ in the context of clandestine activities that are violations of, for example, 18 USC 793 and 794 [the Espionage Act]. These are statutes that require an intent to harm the United States or benefit another power. Judge Ellis may have been parsimonious in his words, but he hasn’t advocated the position that worries you,” he said.

Even so, the FBI FISA expert agreed that the new court order does “make it possible to be ‘an agent of a foreign power’ for FISA surveillance purposes without having any actual connection with a foreign power whatsoever.”

The new order also called for a leak investigation to determine the sources of a August 2004 CBS News story about the AIPAC case.

Selected CRS Reports

The Congressional Research Service does not make its reports directly available to the public. Recent CRS reports obtained by Secrecy News include the following (all in pdf).

“Detection of Explosives on Airline Passengers: Recommendation of the 9/11 Commission and Related Issues,” updated August 9, 2006.

“Defense: FY2007 Authorization and Appropriations,” updated August 7, 2006.

“Defense Procurement: Full Funding Policy — Background, Issues, and Options for Congress,” updated July 26, 2006.

“The FY2007 National Defense Authorization Act: Selected Military Personnel Policy Issues,”
July 21, 2006.

“Emergency Communications: The Emergency Alert System (EAS) and All-Hazard Warnings,” updated July 17, 2006.

“Homeland Security Department: FY2007 Appropriations,” updated July 5, 2006.

“Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping,” updated May 5, 2006.

Costs of Secrecy Skyrocket to $9 Billion

The annual financial costs attributable to the national security classification system reached a record high of $9.2 billion in 2005 according to a new report (pdf) from the Information Security Oversight Office (ISOO).

Classification-related costs include not merely the direct costs of classifying information, which are modest, but also the derivative costs of the personnel security clearance system, physical security for classified material, classified computer security, and more. Most of these costs are incurred within government, but some are due to the handling of classified information within industry.

“The Government cost estimate for FY 2005 is $7.7 billion, which is a $420 million, or 5.8 percent increase above the cost estimates reported for FY 2004,” the Information Security Oversight Office reported. “The industry estimate is up by $696 million.”

“This makes the total 2005 cost estimate for Government and industry $9.2 billion, which is $1.2 billion more than the total FY 2004 cost estimate for Government and industry.”

These figures do not include classification cost estimates for the Central Intelligence Agency, because the CIA has classified its cost data.

See “2005 Report on Cost Estimates for Security Classification Activities,” Information Security Oversight Office, August 2006.

If the classification system were functioning properly to enhance national security, these billions of dollars might all be money well spent. But there is abundant reason to doubt that such is the case.

“There’s over 50 percent of the information that, while it may meet the criteria for classification, really should not be classified in terms of what we lose,” said ISOO director William Leonard at an August 24, 2004 hearing of the House Government Reform Committee.

“The price we pay for classification outweighs any perception, any advantage we perceive we gain,” he told the Committee.

The Information Security Oversight Office, which was established by Executive Order, reports to the President on national security classification policy.

Mr. Leonard criticized the Washington Post in a remarkable letter to the editor today for reporting “irrelevant” negative information about the personal history of a critic of the classification system.

“Publishing it served no useful public purpose and could, in fact, discourage citizens who take seriously their civic responsibility to lodge complaints regarding the activities of their government,” he wrote.

Army Reg on Conscientious Objection

U.S. Army policy for dealing with military personnel who assert a conscientious objection to military combat is set forth in a newly updated Army regulation (pdf).

Criteria for likely approval or rejection of a conscientious objection claim are described. Claims that are insincere or “based on objection to a certain war” will “not be favorably considered.”

The Regulation accepts the reality of conscientious objection with due respect.

“Care must be exercised not to deny the existence of beliefs simply because those beliefs are incompatible with one’s own,” it states.

In any case, “The burden of establishing a claim of conscientious objection as grounds for separation or assignment to noncombatant training and service is on the applicant.”

See “Conscientious Objection,” Army Regulation 600-43, 21 August 2006.

Homeland Security Intelligence (CRS)

The first in a new series of Congressional Research Service reports on homeland security intelligence presents a broad introduction to the subject.

“The proliferation of intelligence and information fusion centers across the country indicate that state and local leaders believe there is value to centralizing intelligence gathering and analysis in a manner that assists them in preventing and responding to local manifestations of terrorist threats to their people, infrastructure, and other assets,” the CRS report suggests.

See “Homeland Security Intelligence: Perceptions, Statutory Definitions, and Approaches,” August 18, 2006.

U.S. Conventional Forces, Nuclear Deterrence and China (CRS)

A new Congressional Research Service report (pdf) proposes an analytical framework for assessing the comparative strengths of U.S. conventional and nuclear forces in the context of a hypothetical future conflict with China.

The authors consider “the possible role that U.S. nuclear and conventional forces might play in four stages of potential conflicts: deterrence, prior to the start of the conflict; crisis stability in the early stages of the conflict; warfighting during the height of the conflict; and war termination, through either a negotiated settlement or a battlefield victory.”

The new report “highlights a number of policy issues that may bear consideration in the ongoing debate regarding military investments,” but refrains from drawing specific conclusions.

CRS does not make its reports directly available to the public. A copy was obtained by Secrecy News.

See “U.S. Conventional Forces and Nuclear Deterrence: A China Case Study,” August 11, 2006.

AIPAC Defendants Did Not Seek Classified Document, Court Rules

In a favorable decision for two former officials of the American Israel Public Affairs Committee who are charged with conspiracy to unlawfully gather national defense information, a federal court ruled (pdf) late last week that they did not solicit actual classified documents and that the government cannot now claim that they did.

The latest decision follows an earlier ruling last week that denied the defendants’ motion to dismiss the case altogether.

The only document that was solicited by the defendants was described in their August 2005 indictment (pdf) as “not classified.”

“Significantly, this is the only overt act in which one of the defendants is alleged to have requested a document from a government official,” the court noted in the new ruling.

“While defendants are alleged to have discussed classified information with government officials, including information contained in classified documents, the superseding indictment does not allege that either [defendants] Rosen or Weissman ever sought an actual copy of any classified document from a government official,” the court noted.

But lately, the prosecution has changed its position and now wants to argue that the requested document was in fact classified after all.

The court said no. To make such a claim at this stage is not permissible since it “alters an essential fact alleged in the superseding indictment” and would therefore be unconstitutional.

The August 11 ruling by Judge T.S. Ellis, III, was first reported today by the New York Sun.

While advantageous to the defendants, the new ruling underscores the radical implications of this unprecedented case.

The upshot of the court’s interpretation is that the defendants (or anyone else) may be guilty of violating the Espionage Act even if they did not solicit classified “documents,” but only “information.” And not only that, the “information” they gather need not be classified, as long as it is “related to the national defense” and closely held by the government.

“Although not strictly necessary, nor always sufficient, the classification of information is highly probative of whether it is, in fact, ‘information related to the national defense’ such that a defendant could be prosecuted for its unauthorized disclosure,” the latest ruling said.

This is a crucial observation.

Classification may “not [be] strictly necessary” to justify prosecution of unauthorized disclosures (including disclosures by non-governmental persons such as the defendants) since, the Court affirmed, there are various kinds of unclassified, national defense-related information that are protected by the Espionage Act.

(On the other hand, mere classification may not be “sufficient” to render information protected by the specific terms of the Espionage Act because there are some kinds of classified information, e.g. some diplomatic or intelligence information, that are plainly not related to “national defense.”)

I discussed some of the implications of the AIPAC case on the NPR program On the Media this week (“No Secrets Allowed”).

And though Lebanon has one or two other things to worry about these days, word of last week’s decision in the AIPAC case was even featured in the Lebanese news outlet Ya Libnan, datelined “Beirut and Washington” (based on a Washington Post story by Jerry Markon).