Posts from January, 2008

Confronting the State Secrets Privilege

The growing use of the state secrets privilege could threaten basic constitutional rights, according to one recent critical analysis.

If current trends in government reliance on the state secrets privilege are allowed to continue, “it is questionable whether any constitutional complaint against the government involving classified information will ever be allowed to be adjudicated,” concluded Carrie Newton Lyons in a review published last year.

Ms. Lyons, a former CIA operations officer, presented her assessment in “The State Secrets Privilege: Expanding Its Scope Through Government Misuse” (pdf), Lewis & Clark Law Review, Volume 11, No. 1, Spring 2007.

Potential reforms to the state secrets privilege will be explored by Louis Fisher of the Law Library of Congress and other experts in a January 24 panel discussion sponsored by the Constitution Project.

Emerging Trends in Asian Security, and More from CRS

Noteworthy new reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“Emerging Trends in the Security Architecture in Asia: Bilateral and Multilateral Ties Among the United States, Japan, Australia, and India,” January 7, 2008.

“Trafficking in Persons: U.S. Policy and Issues for Congress,” January 10, 2008.

“Perjury Under Federal Law: A Brief Overview,” updated December 27, 2007.

“Kosovo’s Future Status and U.S. Policy,” updated December 28, 2007.

“China’s Holdings of U.S. Securities: Implications for the U.S. Economy,” January 9, 2008.

Army Manual Describes Doctrine on Riot Control Agents

Only the President of the United States may authorize the use of riot control agents in war, even for defensive purposes, according to official U.S. military doctrine (pdf), although the Secretary of Defense may authorize their use for the protection or recovery of nuclear weapons.

So it was anomalous to say the least when employees of Blackwater Worldwide private security firm released a canister of CS gas over a Baghdad checkpoint in 2005, as reported by the New York Times today. See “2005 Use of Gas by Blackwater Leaves Questions,” by James Risen, January 10.

“A United States military spokesman in Baghdad refused to describe the current rules of engagement governing the use of riot control agents,” according to the Times story.

But to a great extent, those rules of engagement are specified in a U.S. Army Field manual which describes the permitted uses of riot control agents in wartime and in peacetime, as well as the authority required to employ them.

The 2003 Field Manual, which is still in effect, is FM 3-11.11, “Flame, Riot Control, and Herbicide Operations,” March 10, 2003.

The document has not been approved for public release, but a copy was obtained by Secrecy News. About 25 pages of the document, which detail the preparation of explosive devices, have been withheld from online publication by Secrecy News.

See, relatedly, “Blackwater Drops Tear Gas Grenades on Iraqis” by Jason Sigger, in Wired News’ Danger Room.

Advisory Board Urges Declassification Reforms

In a report (pdf) issued today, a Presidential advisory board proposed dozens of steps to promote a more rational, uniform and productive process for declassification of historical records.

Declassification policy must “take into account the interest of ordinary citizens in having as ‘thorough, accurate, and reliable’ a record of their country’s history as soon as it is possible to provide it,” wrote Martin Faga, acting chair of the Public Interest Declassification Board (and former director of the National Reconnaissance Office) in his transmittal letter.

Towards that end, the Board calls for establishment of a National Declassification Center to coordinate declassification activity, to improve its efficiency, and to stabilize the declassification program.

It urges new procedures to identify historically significant categories of records, and to prioritize their declassification.

The Board advocates expedited processing of Presidential records, and asks the President to affirm that historical editions of the President’s Daily Brief are subject in principle to declassification, a position strongly opposed by the Central Intelligence Agency.

The report perceptively reaches deep into the nuts and bolts of classification policy to recommend that information classified as “Formerly Restricted Data” under the Atomic Energy Act be handled as defense information subject to declassification under the President’s executive order, a step that would significantly expedite the declassification of historical records pertaining to nuclear weapons policy.

The report adopts one recommendation that was advocated by the Federation of American Scientists in testimony before the Board (pdf) last year, namely the creation and release of a public database of declassification activities.

“All departments and agencies should be required to record declassification decisions on a single computerized system… and within five years to make databases available to the public that contain at least pertinent information such as the titles of the documents and the locations where they are available,” the report states.

Many of the Board’s dozens of recommendations seem thoughtful, well-founded and readily achievable. It is uncertain, though, whether they will find a receptive audience in the final year of the Bush Administration or a champion in the current Congress.

“Improving Declassification,” a report to the President from the Public Interest Declassification Board, was principally authored by L. Britt Snider, the Board chairman until last October.

NSDD-113 on Security of Government Communications

In a recently declassified 1983 directive (pdf), President Reagan ordered steps to improve the security of government communications.

“Mobile and fixed communications systems used by key U.S. Government officials in the Nation’s capital and surrounding areas are especially vulnerable to intercept and exploitation by foreign intelligence services,” the President wrote.

National Security Decision Directive (NSDD) 113 was classified Top Secret until last year, when it was released in full. A copy was obtained by researcher Michael Ravnitzky. See “Security of Communications Systems Used by Key Government Officials,” NSDD-113, November 17, 1983.

NSA Releases History of American SIGINT and the Vietnam War

[updated to clarify paragraph on Tonkin Gulf Incident]

During the Vietnam War, North Vietnamese intelligence units sometimes succeeded in penetrating Allied communications systems, and they could monitor Allied message traffic from within. But sometimes they did more than that.

On several occasions “the communists were able, by communicating on Allied radio nets, to call in Allied artillery or air strikes on American units.”

That is just one passing observation (at p. 392) in an exhaustive history of American signals intelligence (SIGINT) in the Vietnam War that has just been declassified and released by the National Security Agency.

From the first intercepted cable — a 1945 message from Ho Chi Minh to Joseph Stalin — to the final evacuation of SIGINT personnel from Saigon, the 500-page NSA volume, called “Spartans in Darkness,” retells the history of the Vietnam War from the perspective of signals intelligence.

The most sensational part of the history (which was excerpted and disclosed by the NSA two years ago) is the recounting of the 1964 Gulf of Tonkin Incident, in which a second reported North Vietnamese attack on U.S. forces, following another attack two days before, triggered a major escalation of the war. The author demonstrates that not only is it not true, as Secretary of Defense Robert McNamara told Congress, that the evidence of a second attack was “unimpeachable,” but that to the contrary, a review of the classified signals intelligence proves that “no attack happened that night.”

Several other important Vietnam War-era episodes are elucidated by the contribution of SIGINT, including the Tet Offensive, the attempted rescue of U.S. prisoners of war from Son Tay prison, and more.

The author, Robert J. Hanyok, writes in a lively, occasionally florid style that is accessible even to those who are not well-versed in the history of SIGINT or Vietnam.

The 2002 study was released in response to a Mandatory Declassification Review request filed by Michael Ravnitzky. About 95% of the document was declassified. (Unfortunately, several of the pages were poorly reproduced by NSA and are difficult to read. A cleaner, clearer copy will need to be obtained.)

See “Spartans in Darkness: American SIGINT and the Indochina War, 1945-1975″ by Robert J. Hanyok, Center for Cryptologic History, National Security Agency, 2002.

Some background on the Tonkin Gulf Incident from the National Security Archive with links to related documents may be found here.

See also Declassified Study Puts Vietnam Events in New Light by Peter Grier, Christian Science Monitor, January 9, 2008.

Sourcebook on the Altay Optical Laser Research Center

A Russian satellite tracking facility in Siberia called the Altay Optical Laser Research Center is profiled in a newly updated document collection (pdf).

A proposed expansion of the facility calls for a high-resolution satellite imaging telescope with an aperture of 3.12 meters and angular resolution of 0.044 arc seconds.

“This is diffraction-limited performance, indicating serious adaptive optics,” observed Allan Thomson, the former CIA analyst who prepared the new sourcebook, which is in Russian and English.

Obstruction of Justice, and More from CRS

Noteworthy new and updated reports from the Congressional Research Service that have not been made readily available to the public online include these (all pdf).

“Obstruction of Justice: an Overview of Some of the Federal Statutes that Prohibit Interference with Judicial, Executive, or Legislative Activities,” December 27, 2007.

“Obstruction of Congress: a Brief Overview of Federal Law Relating to Interference with Congressional Activities,” December 27, 2007.

“Suits Against Terrorist States By Victims of Terrorism,” updated December 17, 2007.

“Proposals to Reform ‘Holds’ in the Senate,” updated December 20, 2007.

“Federal Tort Claims Act,” updated December 11, 2007.

“Intelligence Issues for Congress,” updated December 18, 2007.