Posts from November, 2009

New Publications Received

A new law review article argues that government secrets can be usefully distinguished in terms of “depth”– i.e. “how many people know of their existence, what sorts of people know, how much they know, and how soon they know…. Attending to the depth of state secrets can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal.”  See “Deep Secrecy” by David Pozen, Stanford Law Review, forthcoming.

A new book revisits the case of Frank Olson, the Army biochemist who fell to his death in 1953 after having been unwittingly dosed with LSD in a CIA experiment.  “A Terrible Mistake: The Murder of Frank Olson and the CIA’s Secret Cold War Experiments” by H.P. Albarelli Jr. was published this month by TrineDay, which says it “specializes in releasing books that are shunned by mainstream publishers due to their controversial nature.”

Closed child welfare hearings in the District of Columbia Family Court should be opened up, argued law professor Matthew I. Fraidin in recent testimony before the D.C. Council.  Open hearings would promote improved protection for the children, increased professionalism by the adult participants, and greater accountability all around, he said.  See “Opening Child Welfare Proceedings in the Family Court of the District of Columbia,” November 4, 2009.

DNI Cites Progress Against Air and Sea-Based Threats

The U.S. intelligence community is making steady progress towards “an advanced state of intelligence integration and information sharing” regarding potential threats to the U.S. and its allies from the sea and the air, according to a new report from the Director of National Intelligence.

“Threats that terrorists and other illicit actors pose to the nation’s ports, waterways and airways remain persistent and grave, leaving no room for error or delay in this effort,” the report (pdf) said.

In response to such threats, a new ODNI National Maritime Intelligence Center has been established, new information sharing protocols have been put in place, and collaborative “communities of interest” have been nurtured. But “challenges remain” in both air and maritime intelligence “to overcome cultural and institutional resistance” to cooperation, particularly given the “sharply diminished” sense of urgency since 9/11.

One enduring difficulty is that “a lack of robust foreign and domestic HUMINT assets hampers the capability to detect and identify place and time of hostile or disruptive actions….”  However, the report says, “examining smuggling networks, front companies, and ‘gray’ actors and transactions has resulted in successful interdictions of people and cargo who clearly pose national security threats.”

The unclassified report did not mention any specific interdictions.  But last month, U.S. forces intercepted a German cargo ship carrying arms from Iran to Syria, according to an October 12 story in Der Spiegel.  Last week, reportedly based on a tip from U.S. intelligence, Israel seized a ship carrying weapons said to be supplied by Iran and intended for Hezbollah fighters.

The DNI report described the formidable intelligence challenges posed by the vast maritime and air domains.

“Worldwide maritime activity includes more than 30,000 ocean-going ships of 10,000 gross tons or greater,” operating under more than 150 different national flags, making tens of thousands of calls at 125 major U.S. ports each year.  Meanwhile, “there are over 43,000 fixed airfields worldwide with over 300,000 active aircraft, making the air domain a dense, complex operating environment with attendant reduced reaction time to potential airborne threats.”

“The economy’s inherent lack of resiliency to a major [trade or transportation] disruption event presents a substantial opportunity for those who seek to attack our institutions asymmetrically,” the report said.

The ultimate intelligence goal, therefore, is nothing less than “to create and maintain a persistent awareness of all aspects of passenger and intermodal cargo conveyance.  This single integrated team approach would permit 24/7 coverage of the entire transportation spectrum….”

The new report is heavy on management jargon, with lots of integration, alignment and leveraging said to be taking place.  (“ODNI remains committed to expediting horizontal intelligence integration supported by the implementation of data sharing standards that are breaking down barriers to information sharing, thereby facilitating rapid decision support.”)

Some of the “successes” touted by the report seem paltry or oversold, such as a “precedent setting conference” on piracy in the Horn of Africa last April which “drew more than 280 attendees.”  And the new ODNI National Maritime Intelligence Center is confusingly housed within the existing National Maritime Intelligence Center that also hosts the Office of Naval Intelligence.  But overall the 62-page report testifies to a level of bureaucratic churning within the intelligence community that rarely leaves a trace on the public record.

A copy of the new report was obtained by Secrecy News.  See “The Inaugural Report of the Global Maritime and Air Communities of Interest Intelligence Enterprises,” Director of National Intelligence, November 2009.

Govt Petitions Supreme Court on Background Investigations

Last year, scientists at NASA’s Jet Propulsion Laboratory thought they had successfully rebuffed a controversial government attempt to impose new background investigations on JPL employees under NASA’s interpretation of President Bush’s Homeland Security Presidential Directive 12.  A federal appeals court concurred (pdf) with the scientists that the new investigations into employee personal histories were intrusive, “open ended,” and not “narrowly tailored” to meet legitimate government interests.  The court granted a preliminary injunction exempting the scientists from the investigations into their personal backgrounds.

But last week, Obama Administration Solicitor General Elena Kagan petitioned (pdf) the U.S. Supreme Court to overturn the appeals court ruling in favor of the scientists.  That ruling, she argued, was legally in error and “casts a constitutional cloud on the background-check process.”

Each side has warned of ominous consequences if its position is not upheld.

“These investigations have a very negative impact on our ability to recruit the very best scientific and engineering talent to address our nation’s complex technical needs,” several of the JPL scientists wrote in a 2007 letter to Congress (pdf).  “Many highly talented individuals, like much of the populace, attach great value to their personal liberties.  We are Americans, after all.”

But by finding the new background investigations improper, Solicitor General Kagan contended, the appeals court’s ruling “calls into question even the most basic inquiries… that public employers undertake for prospective employees [and] appears to render suspect the most commonplace reference checks conducted by employers.”

“We are, of course, quite disappointed,” said Robert M. Nelson, a JPL scientist and lead plaintiff in the case.  “The Solicitor General has opened a Pandora’s Box, permitting the Supreme Court to possibly erase all protections that citizens might have against government snooping into the most intimate details of their private lives,” he said last week.

The JPL scientists are contractors, not NASA employees, who work on unclassified projects.  Government contractors who are similarly situated at other agencies (including DoE and NSF) are not required by those agencies to undergo comparable background investigations under HSPD-12.  The current dispute has no bearing on the use of background investigations in the clearance process for access to classified information.

Additional information and the latest case files can be found on the plaintiffs’ website.

National Security Letters, Fossil Fuel, and More from CRS

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

“National Security Letters: Proposed Amendments in the 111th Congress,” October 28, 2009.

“U.S. Fossil Fuel Resources: Terminology, Reporting, and Summary,” October 28, 2009.

“Unconventional Gas Shales: Development, Technology, and Policy Issues,” October 30, 2009.

“Electoral College Reform: 111th Congress Proposals and Other Current Developments,” November 4, 2009.

“Congressional Printing: Background and Issues for Congress,” November 5, 2009.

“Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2009,” October 29, 2009.

New State Secrets Policy Yields Familiar Result

The government’s proposed use of the state secrets privilege in a pending lawsuit was reviewed under the new state secrets policy that was established in September to limit use of the privilege, Attorney General Eric Holder announced on October 30.  But upon review the government decided that it was necessary and appropriate to assert the privilege anyway.  Furthermore, the government did not merely seek to withhold particular items of evidence from disclosure in the case, Shubert v. USA, but sought to terminate the proceeding altogether (pdf).

“As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so,” Attorney General Holder said.  “We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” he said.

With one exception, the Attorney General cited the various steps that had been prescribed under the new policy to ensure the proper use of the privilege, including formation of a review committee, facilitation of court review, and personal approval by the attorney general.

But one aspect of the new policy that he did not address was the question of referral of the alleged misconduct to an agency inspector general for investigation. The policy (pdf) specifies that such a referral is supposed to occur whenever “invocation of the privilege would preclude adjudication of particular claims,” as it is poised to do in this case, and when the “case raises credible allegations of government wrongdoing.”  The plaintiffs in the case allege that their communications were subject to unlawful “dragnet” collection by the National Security Agency.  Somewhat artfully, the government denies that any such collection occurred “under the Terrorist Surveillance Program,” implicitly allowing for the possibility that it may have occurred under some other framework.

Another pending state secrets case brought by former DEA agent Richard Horn appears to have reached a settlement, with the government agreeing to pay the plaintiff $3 million, reported Josh Gerstein in Politico.

The Collaboration on Government Secrecy at American University’s Washington College of Law will hold a conference on “The State of the State Secrets Privilege” (pdf) on November 18.

JASON Cautions on Predicting Terrorist Events

Attempts to predict the occurrence or the likelihood of extreme acts of terrorist violence on the scale of 9/11 should be discouraged because the available data are too sparse to permit the reliable modeling of such “rare events,” according to a new report to the Pentagon (pdf) from the JASON defense advisory panel.

In a nutshell, “it is simply not possible to validate (evaluate) predictive models of rare events that have not occurred, and unvalidated models cannot be relied upon.”

On the other hand, the JASONs said, it may be possible and useful to assume that rare events are correlated with more frequent, observable events which can be reliably modeled.  If one assumes that “rare events events occur on a continuum with more frequent events,” then the latter can be used to help predict the former.

In this way, the JASONs calculated that the probability of another 9/11-scale event in the world could be about 7% in the next ten years. But for reasons they went on to enumerate, the underlying assumption of continuity between rare and frequent events is not demonstrably correct.

“Much of the work on [anticipating] rare terrorist events seems to take for granted that ‘the truth is out there’ and we can discover it in a sufficiently timely fashion with the right mixture of motivational assessment, social network analysis, capability measures, etc.”  This may not be true, they indicated.

The JASONs offered suggestions for improving the modeling process, and they stressed the need for “good, large datasets of [terrorist] events and incident data” that currently do not exist or are not widely available.  It is “surprisingly hard to obtain primary datasets” even on “straightforward” questions of terrorist event frequency and magnitude.

They cautioned that the complexity of the problem and the presumed urgency of the threat have “led some to advocate the suspension of normal standards of scientific hypothesis testing, in order to press [predictive] models quickly into operational service.” But “while appreciating the urgency, JASON believes such advice to be misguided…. Experience in the development of many other scientific fields shows the importance of adhering to rigorous scientific standards, so that small successes are tested, communicated, critically examined, reproduced, and built upon.”

“Although patient husbandry of a long-term research program may fall short of addressing the immediate operational needs, JASON believes it is the best way forward for success in the long term.” A copy of the new JASON report was obtained by Secrecy News.  See “Rare Events,” October 2009.

More New Publications Received

A new book delves into “the secret history of federal drug law enforcement” and the role of the Drug Enforcement Administration.  See “The Strength of the Pack: The Personalities, Politics and Espionage Intrigues that Shaped the DEA” by Douglas Valentine, TrineDay, 2009.

Former Congressional Research Service scholar Morton Rosenberg authored a detailed account of the principles and practices of congressional oversight entitled “When Congress Comes Calling” (pdf). It was published by the Constitution Project in July and is available in full-text online.

Military Censorship of Photographs in World War I

During the course of World War I, tens of thousands of photographs were withheld from publication by the U.S. military.  These included images that might have revealed troop movements or military capabilities, pictures that were liable to be used in enemy propaganda, or those that could adversely affect military or public morale.

The development of military controls on publication of photographs during WWI was described in a 1926 U.S. Army report (large pdf) that is illustrated with dozens of images that had been withheld, with a description of the reasons their publication was not permitted.

See “The Military Censorship of Pictures:  Photographs that came under the ban during the World War – and why” by Lt. Col. Kendall Banning, U.S. Army Signal Reserve Corps, 1926 (courtesy of the U.S. Army Combined Arms Center).

Confusion Reigns in Intelligence Secrecy Policy

The decision last week by the Director of National Intelligence to declassify the FY2009 budget for the National Intelligence Program is inconsistent with other ODNI classification actions and highlights the confusion over the proper scope of national security secrecy that prevails in the U.S. intelligence community today.

On October 30, DNI Dennis C. Blair announced that the total appropriation for the National Intelligence Program (NIP) in FY 2009 was $49.8 billion.  (Under the terms of a 1997 law, the President could have withheld the FY 2009 budget figure if he filed a statement with Congress declaring that revelation of the number “would damage national security.”  But he did not do so.) Yet at the same time, the Office of the DNI refuses to reveal the NIP budget figure from FY 2006 — three years earlier — on grounds (pdf) that its disclosure would damage national security and jeopardize intelligence sources and methods.

Can these two conflicting evaluations of the same information from two different years be reconciled?  It is hard to see how, especially since the budget number that was withheld is the older of the two, and is even farther removed from current operations.  One of the DNI’s classification actions appears to be in error.

The DNI’s October 30 statement announcing the latest budget figure for 2009 also makes some other questionable assertions that suggest internal confusion and fuzzy thinking about secrecy and disclosure.

“I’m hopeful that this [budget] information will give the American people a better understanding of how their tax dollars are being used to help protect the country and keep Americans safe,” DNI Blair said.  But disclosure of the budget figure reveals nothing about “how tax dollars are being used” for intelligence — which is one reason why such information could not be properly classified.

Worse than that, the DNI’s disclosure is incomplete and misleading.  The total intelligence budget is composed of two budget constructs, the National Intelligence Program (NIP) and the Military Intelligence Program (MIP).  (Several of the large defense intelligence agencies — NSA, NGA, and others — are funded through both the NIP and the MIP.)  But only the NIP number has been released, which means that not even the aggregate intelligence budget figure has been made public.  (In a September 15 media conference call, the DNI said the combined budget was around $75 billion.)  Based on the new NIP figure alone, one cannot even say how much money was spent on intelligence in 2009, whether the total has increased or decreased from the year before, or by how much — much less “how tax dollars are being used to help protect the country.”

The October 30 ODNI news release went on to insist that “Any and all subsidiary information concerning the National Intelligence (NIP) budget will not be disclosed as such disclosures could harm national security.”

“Any and all subsidiary information”?  This implies, for example, that if a breakdown of the amount of money spent by the intelligence community on declassification activities were published, it “could harm national security.”  But that hardly seems likely.

In a candid moment last year, ODNI officials admitted that they really don’t know why they classify all the things that they do.  “There is wide variance in application of classification levels,” an internal January 2008 ODNI study (pdf) obtained by Secrecy News found.  “The definitions of ‘national security’ and what constitutes ‘intelligence’ — and thus what must be classified — are unclear.”

Lacking clarity about first principles, the intelligence community is ripe for the sort of “Fundamental Classification Guidance Review” that has been proposed in the Obama Administration’s pending draft executive order on national security information (sec. 1.9) “to identify classified information that no longer requires protection and can be declassified.”  If such a review is actually carried out by impartial subject matter experts who are relatively free of bureaucratic blinders and willing to take a fresh look at the requirements of national security, it might help to introduce a degree of rationality into the current chaos of classification policy.

David C. Gompert, the new Principal Deputy DNI, told the Senate Intelligence Committee in September that he recognized that new measures were needed to address overclassification in the intelligence community.

“If confirmed,” he said (pdf, in reply to the Committee’s question 28B), “I would expect that the DNI and I would work closely with the Information Security Oversight Office to ensure that standards are created for the establishment of classification management programs within the IC.  Then, new IC guidance could be issued by the DNI regarding classification guides, marking tools, training, and classification audits. I believe that these efforts would go far to assist in resolving the serious issue of overclassification.”

An aggregate intelligence budget figure, including both national and military intelligence spending, has not been published since 1998, when it was released in response to a Freedom of Information Act request.  At that time, the total was $26.7 billion.  At congressional direction, a budget number for the NIP was previously released by the DNI in 2007 ($43.5 billion) and 2008 ($47.5 billion).  Unclassified portions of recent MIP budget documents were released to Secrecy News last month.