Posts from October, 2009

Obama Boosts White House Intel Advisory Board

In a move that will strengthen internal executive branch oversight of intelligence, President Obama this week said that a White House intelligence oversight board will be required to alert the Attorney General whenever it learns of “intelligence activities that involve possible violations of Federal criminal laws.” A similar requirement for the board to notify the Attorney General had been canceled by President Bush in February 2008.  President Obama reversed that step in his executive order 13516 on the authorities of the President’s Intelligence Advisory Board (PIAB) and the Intelligence Oversight Board (IOB).

The new Obama order also restores to the PIAB and the IOB some of the other teeth that the Bush Administration had removed.  The order states that the Director of National Intelligence and others “shall provide such information and assistance as the PIAB and the IOB determine is needed to perform their functions.”  The Bush order had only spoken of “such information and assistance as the PIAB and the IOB may need to perform functions under this order.”  So the new order (like the prior Clinton order) helpfully specifies that the PIAB and the IOB are the ones who will “determine” what they need–not the DNI or anyone else.

The Obama order does not restore the Clinton-era requirement that all intelligence agencies heads report quarterly to the IOB.  Instead, as in the Bush order, the DNI is to report to the Board at least twice a year.

The Obama order states that the PIAB membership should be comprised of individuals “who are not full-time employees of the Federal Government.”  Previously, they had to be “not employed by the Federal Government” at all.  The basis for this change is unclear.

Strengthening internal oversight of intelligence activities is among the easiest of changes to Bush Administration intelligence policy that the Obama Administration could be expected to make.  The action does not entail any increase in public disclosure or congressional reporting concerning intelligence activities, not does it infringe on executive authority in any way.

On October 28, President Obama announced the appointment of former Senators Chuck Hagel and David Boren to the PIAB, which had been vacant until then.

“We are off to a good start with this meeting by welcoming the press, which past advisory boards have rarely done,” the President said. “That’s a reflection of my administration’s commitment to transparency and open government, even, when appropriate, on matters of national security and intelligence.”  But judging from a published transcript, no matters of substance were discussed and no questions from the press were taken at the meeting.

Q&A With FBI Director Mueller

As a result of polygraph testing, more than a thousand applications for employment at the Federal Bureau of Investigation have been rejected or otherwise terminated in the last year alone, the FBI told Congress last month.  Polygraph testing has been the single largest reason for discontinuing an application, well ahead of administrative or medical issues, use or sale of illegal drugs, or other suitability or security issues. In Fiscal Year 2009, 339 special agent applicants were turned away on polygraph-related grounds, and 825 professional support applications were similarly discontinued.

These data were presented in responses to questions for the record (pdf) from a Senate Judiciary Committee hearing (pdf) last March, and were transmitted to Congress on behalf of FBI Director Robert S. Mueller III on September 15, 2009.

Most of the congressional questions, on everything from Freedom of Information Act compliance to detainee interrogation, are focused and pointed.  Some of the answers are informative and occasionally even startling.

Each day between March 2008 and March 2009, Director Mueller told the Committee, “there were an average of more than 1,600 nominations for inclusion on the [Terrorist] watchlist,” as well as 4,800 proposed modifications of existing records, and 600 proposed removals.  “Each nomination for addition [to the watchlist] does not necessarily represent a new individual,” Mueller cautioned, “but may instead involve an alias or name variant for a previously watchlisted person.”

Noteworthy New Publications

Former FAS President Jeremy J. Stone has published a memoir of his efforts to promote constructive dialogue in several of the world’s most intractable conflicts through his own organization, Catalytic Diplomacy.  Remarkably, writes Morton H. Halperin in a Preface to the memoir, “The conflicts that Jeremy sought to mitigate — US-Russian nuclear relations, China’s relation with Taiwan, North Korea’s relations with its neighbors, and U.S.-Iranian relations — have all been affected for the better by his efforts.”

The susceptibility of anti-satellite weapons to the control of international law is considered in a new paper called “ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons” (pdf) by David A. Koplow, Michigan Journal of International Law, Vol. 30, No. 4, Summer 2009.  Mr. Koplow is now Special Counsel for Arms Control at the Defense Department Office of the General Counsel.

Effective congressional oversight depends not only on the good intentions of the overseers, but also on their familiarity with the legislative, investigative and other tools they have at their disposal.  But the skillful use of those tools has been largely a matter of tacit knowledge, handed down through the generations of congressional staff.  To help preserve and propagate the techniques involved, the Project on Government Oversight has published a new handbook entitled “The Art of Congressional Oversight: A User’s Guide to Doing It Right.”

“Useful But Prohibited”: Air Force Openness Lags

Some of the steps that are favored by the Obama Administration to open up government to public access and participation may be “useful” but they are nevertheless “prohibited” on U.S. Air Force web sites, according to a new Air Force policy instruction.

In a January 21, 2009 memorandum on transparency and open government, President Obama directed that “Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public…. Executive departments and agencies should solicit public feedback to assess and improve their level of collaboration and to identify new opportunities for cooperation.”

The U.S. Air Force has a different vision, however.

A new Air Force policy on public communications (pdf) observed that “web-based message boards, threaded chat rooms, and guest books… allow users to post opinions, messages, or information openly on a web site.  They provide a useful means of creating two-way communication but are prohibited as part of public web site services (sec. 10)”

Instead of the “unprecedented level of openness” promised by the President, the Air Force prefers to follow precedent in other ways as well.

Only content that “is intended for a wide public audience” will be considered by the Air Force for publication online.  All other materials “should be posted on the [password-protected] Air Force Portal web site.”  Moreover, “all content on a public web site must be cleared for public release.”  See “Public Web Communications,” Air Force Instruction 35-107, October 21, 2009.

Unfortunately, the Air Force’s mandatory pre-publication clearance process (pdf) for “all content” is arduous, time-consuming and technologically primitive.  Authors should allow ten days for Air Force review, or twenty days when approval is needed from the Department of Defense.  Incredibly, materials for review can only be submitted in hardcopy (six paper copies for the Air Force and an additional four copies for DoD). Air Force Public Affairs says that it “does not accept material for review via e-mail or any other electronic means” (sec. 8).

On the other hand, “theatrical reviews… and works of fiction that are not sourced from active-duty experience” are excused from the pre-publication review requirement.  See “Security and Policy Review Process,” Air Force Instruction 35-102, October 20, 2009.

These new Air Force directives, and another Air Force Instruction on Public Affairs Policies and Procedures (pdf) that was modified last week, do not even mention the January 2009 Obama transparency memorandum, and certainly do not reflect its declared intent.

The impact of the President’s January memorandum has been deferred because the implementing Open Government Directive that was originally due for release in May has still not been completed. [Correction: The May 2009 deadline was for development of "recommendations" for the Open Government Directive, not for release of the Directive itself.]

But the Directive “will come out this fall,” said Beth Noveck, White House deputy chief technology officer for open government, at a meeting organized by the Center for Democracy and Technology yesterday.  The forthcoming Directive, to be issued by the Office of Management and Budget, will provide “a framework for agencies to pursue their own transparency initiatives,” she said.

Open Skies and Counterproliferation

Whatever its archaic publication policy may say, the U.S. Air Force still manages to generate and publicly release documents of significant policy interest.  A new manual on the Open Skies Treaty explores the origins, development, and implementation of the Open Skies regime, which permits the overflight and inspection of member nations’ territory and facilities.  See Air Force Manual 16-604 (pdf) on “Implementation of, and Compliance with, the Treaty on Open Skies,” October 20, 2009.

A summary account of U.S. government programs to combat weapons of mass destruction is provided in the latest annual report from the interagency Counterproliferation Program Review Committee.  See “Report on Activities and Programs for Countering Proliferation and NBC Terrorism,” Volume I, executive summary, July 2009 (published September 2009).

Books Received

From time to time, publishers send us review copies of new books.  We are glad to receive them, even if we cannot always read the books promptly or produce substantial reviews.  New receipts include these:

“Nuclear Insights: The Cold War Legacy” by Alexander DeVolpi, volume 2: Nuclear Threats and Prospects, 2009.

“Preventing Catastrophe: The Use and Misuse of Intelligence in Efforts to Halt the Proliferation of Weapons of Mass Destruction” by Thomas Graham Jr. and Keith A. Hansen, Stanford University Press, 2009.

“Vanished,” a novel by Joseph Finder, St. Martin’s Press, 2009.

Congress Wants Better Locks for Secret Docs

A House Subcommittee is reviving a decade-old debate over the need to expeditiously replace the older security locks on safes for storing classified documents with new, more sophisticated electromechanical locks.

“The secure storage of classified information is a matter of paramount importance to the national security of the United States,” wrote Rep. John F. Tierney (D-MA) earlier this month.  Yet, he complained, government contractors that have possession of classified materials have been slow to upgrade their locks and safes to meet the new government standards.

Rep. Tierney’s House National Security Subcommittee is therefore “conducting an investigation” focusing on  industry’s ability and intention to carry out the mandatory upgrade to improved locks and containers prior to a 2012 deadline.  Almost 20,000 “substandard security containers” are supposed to be replaced in the next three years, according to the Defense Security Service.

“Based on Industry’s slow rate of transition over the past decade, and the substantial number of substandard security containers still in use, it appears that Industry may not have adequate plans in place to complete the transition by October 1, 2012.”  Rep. Tierney described his concerns in an October 7 letter (pdf) to William J. Bosanko, director of the Information Security Oversight Office.  The letter was released at a recent meeting of the NISP Policy Advisory Committee.

Although Rep. Tierney did not mention it, the origins of the requirement to upgrade security locks for storage of classified documents are tainted by parochial financial concerns, and the move is questionable on security policy grounds.

Beginning in the 1990s, the lock conversion requirement was zealously advocated by Senator Jim Bunning (R-KY) whose constituents, not coincidentally, included the manufacturer of the proposed replacement lock.  The manufacturer also enlisted the lobbying support of Douglas Feith, who went on to become the Bush Administration’s controversial Under Secretary of Defense for Policy.  See “Sen. Bunning Pushes Electronic Locks to the Dismay of Industry, DoD” by Hampton Stephens, Defense Information and Electronics Report, August 10, 2001.

But there has never been any known compromise of classified information in government or industry that was attributable to a faulty security container or lock.  For that reason, the cost-benefit ratio of a systematic retrofit does not seem very compelling, particularly when compared to other potential uses for the limited supply of security dollars.

On the other hand, the fact that self-serving financial interests drove the political debate does not mean the security issue is entirely groundless, an independent security consultant told Secrecy News.  Existing mechanical locks “can be penetrated surreptitiously within 20 minutes,” he said, and the older barlock containers that are still in use “can be penetrated surreptitiously within seconds.”

Some Recent Congressional Hearing Volumes

The records of several noteworthy congressional hearings that were held in the past two years have been published in the last few weeks, including these:

“A Report Card on Homeland Security Information Sharing,” House Homeland Security Committee, September 24, 2008.

“Turning Spy Satellites on the Homeland: The Privacy and Civil Liberties Implications of the National Applications Office,” House Homeland Security Committee, September 6, 2007.

“Oversight of the Federal Bureau of Investigation” (pdf), Senate Judiciary Committee, March 27, 2007.

“FISA Amendments: How to Protect Americans’ Security and Privacy and Preserve the Rule of Law and Government Accountability,” October 31, 2007.

Sen. Patrick Leahy and Sen. Charles Grassley of the Senate Judiciary Committee wrote to Attorney General Holder (pdf) on October 20, asking the Department of Justice to comply with outstanding Committee requests for information that have gone unanswered, in some cases for several years.

OSC Views Hong Kong’s “Mad Dog” Wong

The DNI Open Source Center has produced a colorful profile of Raymond Wong Yuk-man, a former talk show host who was elected to Hong Kong’s Legislative Council in 2008.

Known as “Mad Dog” for “his virulent criticism of the Communist Party of China,” Wong is a member of the “radical pro-democracy League of Social Democrats (LSD).”  But his flamboyant behavior has raised concerns that he could “divide the Hong Kong opposition and set back the process of democratization,” the OSC report (pdf) said.

Earlier this year, Wong was officially rebuked for using the English phrase “poor guys” to refer to Hong Kong’s citizens. It seems that “poor guys” was a play on “the vulgar Cantonese expression ‘pok kai’” which means, the OSC explained, something like “drop dead.”

Last year, Wong was ejected from the Council chambers after throwing bananas to protest the minimal stipend (known as “fruit money”) given to senior citizens.

To be a radical is “fine,” said one of Wong’s critics. But to be “a loutish, obscene, banana-throwing radical is not.”

See “Profile of ‘Radical’ Hong Kong Legislator Raymond Wong Yuk-man,” Open Source Center, October 2, 2009.

Invention Secrecy at Highest in a Decade

The total number of invention secrecy orders that the U.S. government imposed on patent applications rose again this year, reaching 5,081 by the end of last month, the highest figure since 1996.

Under the Invention Secrecy Act of 1951, U.S. government agencies may restrict the disclosure of a patent application whenever its publication is deemed “detrimental to the national security.”  In Fiscal Year 2009, 103 new secrecy orders were issued, while 45 existing orders were rescinded.  The overall number of orders in effect increased by about 1% over the year before, according to statistics from the U.S. Patent and Trademark Office that were released to Secrecy News under the Freedom of Information Act.

The most vexing secrecy orders, known as “John Doe” secrecy orders, are those that are imposed on private inventors who are not government contractors so that the government has no property interest in the invention.  In Fiscal Year 2009, there were 21 new John Doe secrecy orders, according to the latest statistics.  An argument could be made that secrecy orders in such cases are infringements on an inventor’s First Amendment rights, but such an argument has never been tested in court.

In general, however, challenges or complaints concerning the operation of the patent secrecy system seem to be rare.  Most secrecy orders originate at defense agencies, with the U.S. Navy in the lead this year with 39.  (The National Security Agency issued 12 secrecy orders in FY 2009.)  In such cases, the most likely customers for the inventions are the military agencies themselves, not commercial enterprises, and so the secrecy orders may have no adverse impact on the inventors.    For other resources on invention secrecy, see here.