Posts from April, 2007

Various Resources on Intelligence and Security

Some notable new or newly-acquired publications include these (all pdf):

“Physical Security Program,” Department of Defense Regulation 5200.08-R, April 9, 2007.

“National Defense Intelligence College,” Department of Defense Instruction 3305.01, December 22, 2006.

“Intelligence, Surveillance, and Reconnaissance: Preliminary Observations on DOD’s Approach to Managing Requirements for New Systems, Existing Assets, and Systems Development,” U.S. Government Accountability Office testimony [GAO-07-596T], April 19, 2007.

“Bioterrorism and Biocrimes: The Illicit Use of Biological Agents Since 1900″ by W. Seth Carus, August 1998 (rev. February 2001).

AIPAC Trial Likely to be Postponed

The unprecedented trial of two former officials of the American Israel Public Affairs Committee, who are charged under the Espionage Act with unlawful receipt and disclosure of national defense information, is likely to be postponed from its scheduled start date on June 4.

The need to resolve disagreements between the parties over the handling of classified information involved in the case will “knock the trial date into a cocked hat,” said Judge T.S. Ellis, III at an April 19 hearing.

The Judge gave prosecutors until May 2 to decide whether they will propose a new set of “substitutions” for classified evidence, which would then need to be reviewed by the defense and the court under the provisions of the Classified Information Procedures Act.

Alternatively, prosecutors may decide to stand fast with their previous proposal to bar public access to the classified evidence, a position that the judge has already rejected, thereby setting the stage for an appeal.

Judge Ellis issued a detailed memorandum opinion (pdf) on April 19 to explain why he concluded that the prosecution proposal to exclude public access to classified evidence is not authorized by statute or precedent.

The memorandum opinion advised the government that any proposal to exclude public access to classified evidence would have to be thoroughly supported by “a highly detailed explanation of the ensuing harms to national security… [since] much of the classified information at issue [here] is not self-evidently damaging to national security.”

Court Rules That AIPAC Trial Must Be Open

(Updated Below)

A federal court this week rejected a government proposal to restrict public access to evidence in the forthcoming trial of two former officials of the American Israel Public Affairs Committee who are charged under the Espionage Act with unauthorized receipt and transmission of classified information.

Using a procedure called the Silent Witness Rule, the prosecution had proposed to present classified evidence to the jury but to withhold it from the public and from open deliberation during trial.

“I think it is fair to say that the government’s proposal is novel,” said Judge T.S. Ellis, III on April 16.

But he said that because the evidence could not be openly addressed in court, the proposed procedure “would render virtually impossible an effective line of cross-examination that might be vital to the defense.”

Therefore, the judge ruled, “you can’t do it. It closes the trial. It’s unconstitutional. It’s unfair to the defendants.”

Explaining what is at stake, Judge Ellis elaborated:

“A public trial requires witnesses’ testimony to be public, so it deters perjury. It requires a judge’s rulings to be made in public, as today, so it deters partiality and bias. And by requiring prosecutors to present their charges and evidence publicly, it deters vindictiveness and abuse of power.”

Another “novel and distinctive” feature of the government proposal noted by Judge Ellis is that prosecutors were prepared to share classified evidence with jurors who do not hold security clearances. (“Interestingly, there is some authority for that,” he observed.)

More dubiously, the judge said, “the government’s proposed procedure treats even certain selected public domain documents, including news reports, as if they were classified documents.”

At any rate, while the government may suggest unclassified substitutions for classified evidence (as provided by the Classified Information Procedures Act), the proposal to withhold evidence from the public altogether was decisively rejected.

At the conclusion of the April 16 hearing it was unclear how the government would proceed, and even whether the trial itself could go forward.

If the prosecution “decline[s] to submit any substitutions [for classified evidence] that you would ever make public,” Judge Ellis warned, “then maybe … I have decide whether to dismiss the indictment, if that’s the case.”

The transcript of the April 16 hearing provided substantive discussion of the issues involved in handling classified evidence and the importance of open trials, along with some intense legal maneuvering and occasional flashes of humor. A copy was obtained by Secrecy News.

A follow-up hearing was scheduled this afternoon (April 19) to identify the prosecution’s next step.

Update: See Justice Dept. Given 2 Weeks to Weigh Use of Classified Data in Espionage Case, Washington Post, April 20.

Other Secrecy News

Independent press reporting of Army plans to extend soldiers’ tours of duty in Iraq by three months prompted outraged warnings (pdf) from the Army vice chief of staff about the need to improve control of Army information against unauthorized disclosure. See “General: Embarrassing = Secret” in the Danger Room blog, April 18.

The government asserted the “state secrets” privilege in a Nevada lawsuit involving eTreppid Technologies (and the classified BIG SAFARI program). But instead of trying to shut the case down, as commonly occurs in state secrets cases, the government, which is not a party to the case, is proposing a way that it could proceed. See “eTreppid case gets special treatment” by Martha Bellisle, Reno Gazette-Journal, April 19.

Senate efforts to advance the FY2007 Intelligence Authorization Act collapsed again on April 17 in the face of Republican opposition to several provisions of the legislation, further undermining congressional oversight of intelligence.

Selected CRS Reports

Some noteworthy new reports of the Congressional Research Service include the following (all pdf).

“Environmental Impacts of Airport Operations, Maintenance, and Expansion,” April 5, 2007.

“What’s the Difference? — Comparing U.S. and Chinese Trade Data,” April 10, 2007.

“Vulnerability of Concentrated Critical Infrastructure: Background and Policy Options,” updated January 26, 2007.

“Polar Bears: Proposed Listing Under the Endangered Species Act,” updated March 30, 2007.

Special Operations Command: A Twenty Year History

As the missions and budgets for U.S. Special Operations Command steadily expand, a new official history (large pdf) looks back at the origins and development of SOCOM.

“Since its creation in 1987, USSOCOM has supported conventional forces and conducted independent special operations throughout the world, participating in all major combat operations,” writes SOCOM Commander General Bryan D. Brown.

The new account, prepared by the SOCOM history office and obtained by Secrecy News, describes in new detail the major SOCOM operations of the past two decades up through the present.

“After 9/11, the first SOF [special operations forces] counterterrorism operations were not conducted in Afghanistan or even in the Middle East, but in Europe,” the SOCOM history notes.

“In late September 2001, U.S. SOF learned that Islamic extremists with connections to Usama bin Laden were in Bosnia. SOCEUR forces quickly put together Operation RESOLUTE EAGLE to capture them. U.S. SOF surveilled the terrorists, detained one of the groups, and facilitated the capture of another group by coalition forces. These raids resulted in the capture of all the suspected terrorists and incriminating evidence for prosecution and intelligence exploitation.”

Other operations, like the battle of Tora Bora, were admittedly less successful.

“The fact that SOF came as close to capturing or killing UBL [Usama bin Laden] as U.S. forces have to date makes Tora Bora a controversial fight. Given the commitment of fewer than 100 American personnel, U.S. forces proved unable to block egress routes from Tora Bora south into Pakistan, the route that UBL most likely took.”

See “United States Special Operations Command, 1987-2007,” SOCOM History and Research Office, MacDill Air Force Base, April 2007 (143 pages in a very large 32 MB PDF file).

The Government Accountability Office prepared a detailed critical profile of SOCOM (pdf) in 2006.

“The Special Operations Command is comprised of special operations forces from each of the military services. In fiscal year 2005, personnel authorizations for Army special operations forces military personnel totaled more than 30,000, the Air Force 11,501, the Navy 6,255, and the Marine Corps 79,” the GAO reported.

“From fiscal year 2001 through fiscal year 2005, funding for the Command increased from more than $3.8 billion to more than $6.4 billion,” GAO said, and it is only projected to rise through 2011.

But recruiting and training special operations forces to meet expanding mission requirements will be a challenge, the GAO concluded.

See “Special Operations Forces: Several Human Capital Challenges Must Be Addressed to Meet Expanded Role” [GAO-06-812], July 2006.

See also “Army Special Operations Forces” (pdf), U.S. Army Field Manual 3-05, September 2006, obtained by Secrecy News.

FY 2007 Intelligence Authorization and Budget Disclosure

In a heated debate April 16, the Senate failed to achieve cloture on the FY2007 Intelligence Authorization Act, leaving it open for further amendment today.

One of the points that now seems beyond debate, however, is the need to disclose the total intelligence budget figure.

“The chairman [Sen. Rockefeller] and I have agreed it makes sense … to declassify the top line number of the intelligence budget,” said Sen. Kit Bond (R-MO), Ranking Member of the Senate Intelligence Committee.

“I have talked with leaders in the intelligence community and I said: Does that cause you any problems? They said: No. It is only when you get below that. Were you to go down the slippery slope of disclosing amounts going into particular units or particular programs of the intelligence community, you give away vital secrets,” Sen. Bond said on the Senate floor.

“This body has twice gone on record and was stated by the chairman and the 9/11 Commission has recommended disclosing the overall number so that the people of America will know whether we are continuing to support the intelligence community adequately, whether we are supporting it with the kinds of resources needed,” he said.

“In our [proposed] managers’ amendment, we took out a [requirement for a] study that would purport to look at the possibility of declassifying further details, other than the top line. We both agreed that should be out,” Sen. Bond said.

See the full debate and the list of pending or proposed amendments to the FY 2007 Intelligence Authorization Act here.

Despite the intelligence community acquiescence noted by Senator Bond, the White House remains opposed to any disclosure of intelligence budget information, according to an April 12 policy statement (pdf).

Various Resources

The role of air and space power in U.S. military operations was addressed in a newly updated U.S. Air Force publication. See Air Force Doctrine Document 2, “Operations and Organization” (pdf), 3 April 2007.

In response to a Freedom of Information Act request from the Federation of American Scientists, the Office of the Director of National Intelligence has just released a somewhat perfunctory “2006 Annual Report of the U.S. Intelligence Community” (pdf), dated February 2007.

The Center for American Progress has published the transcript (pdf) of a March 30 program on “Ensuring Congressional Access to National Security Information,” linked (under Resources) from this page.

Other Secrecy News

The politicization of the Department of Justice, the erosion of professional values and the state of Freedom of Information Act policy were discussed with unusual candor by Daniel J. Metcalfe, former director of the DoJ Office of Information and Policy, in an interview with Tony Mauro of Legal Times.

NASA secretly paid $26.6 million several years ago to the families of the astronauts who died in the 2003 Columbia space shuttle accident, reported Jim Leusner of the Orlando Sentinel on April 15.

Measuring Effectiveness in Combating Terrorism (CRS)

In confronting the threat of terrorism, what would it mean to win? And how would one know?

Terrorist and counterterrorist forces may both believe that they are succeeding in their goals. And depending on their specific objectives, they may both be right.

“Progress may be defined differently by the terrorists and those who oppose them,” according to a recently updated report of the Congressional Research Service (pdf). “Hence both can claim progress, and both can be correct in their assessments.”

So, for example, “Western policymakers often tend to define success by the absence of attacks. When the shooting or bombing stops, for example, that is viewed as success. Yet terrorists sometimes define success in terms of making governments expend limited resources trying to defend an enormous number of potential targets.”

Assessing progress by focusing on those factors that can easily be measured may mislead policymakers.

“A common pitfall of governments seeking to demonstrate success in anti-terrorist measures is overreliance on quantitative indicators, particularly those which may correlate with progress but not accurately measure it, such as the amount of money spent on anti-terror efforts.”

With the growing realization that the threat of terrorism is a distinct problem from the war in Iraq, a more thoughtful and nuanced approach to counterterrorism may soon become possible.

“As terrorism is a complex multidimensional phenomenon, effective responses to terrorism may need to take into account, and to some degree be individually configured to respond to, the evolving goals, strategies, tactics and operating environment of different terrorist groups.”

“Although terrorism’s complex webs of characteristics — along with the inherent secrecy and compartmentalization of both terrorist organizations and government responses — limit available data, the formulation of practical, useful measurement criteria appears both tractable and ready to be addressed.”

The Congressional Research Service does not make its publications directly available to the public, but a copy was obtained by Secrecy News.

See “Combating Terrorism: The Challenge of Measuring Effectiveness,” updated March 12, 2007.