Posts from January, 2010

Some New Congressional Hearing Volumes

Newly published congressional hearing volumes on national security-related topics include the following.

“Nomination of Leon Panetta to be Director of Central Intelligence Agency,” Senate Intelligence Committee, February 5-6, 2009.

“Nomination of David S. Kris to be Assistant Attorney General for National Security,” Senate Intelligence Committee, March 10, 2009.

“Nomination of J. Patrick Rowan to be Assistant Attorney General for National Security” (pdf), Senate Intelligence Committee, September 25, 2008.

“USA Patriot Act,” House Judiciary Committee, September 22, 2009.

“Advancing Technology for Nuclear Fuel Recycling: What Should Our Research, Development, and Demonstration Strategy Be?” (pdf), House Science and Technology Committee, June 17, 2009.

“The Incidence of Suicides of United States Servicemembers and Initiatives within the Department of Defense to Prevent Military Suicides” (pdf), Senate Armed Services Committee, March 18, 2009.

Book: Change of State

Worlds seem to collide as I sat in a Chevy Chase synagogue last night waiting to hear Israeli Talmudist Adin Steinsaltz and the ACLU’s Art Spitzer discuss Martin Luther King’s Letter from Birmingham Jail.  Former Bush Administration Pentagon official Douglas Feith, of all people, sat a few rows back.  I was reading a 2006 book about information policy called “Change of State” by University of Wisconsin professor Sandra Braman.

“That looks really boring,” volunteered an unknown gentleman seated next to me in the packed hall.

In fact, Change of State is a deeply thought, deeply felt (if sometimes quite dense) account of information policy that takes the subject much more seriously than do many practitioners in the field.

“Information policy fundamentally shapes the conditions within which we undertake all other political, social, cultural, and economic activity,” the author writes.  “And it is information policy that is the legal domain through which the government wields the most important form of power in today’s world, informational power.”

A central claim of the book is that the very nature of government has been altered and transformed from the bureaucratic welfare state into what may be called the informational state, in which governments “deliberately, explicitly, and consistently control information creation, processing, flows, and use to exercise power.”

In developing her argument, the author covers a tremendous amount of interdisciplinary ground.  The bibliographical essays that accompany the text and the standard bibliography at the end are richly informative all by themselves.

Inevitably, there are errors and questionable judgments to be found.  Hacker Kevin Mitnick was sent to jail for computer fraud, not because he “publicly released a free and easy method for encryption on the Internet” (p. 131).  And on the list of information policy principles that are explicit or implicit in the U.S. Constitution, I would have included the Statement and Account clause (Article I, section 9, clause 7)  which requires that “the receipts and expenditures of all public money shall be published from time to time.”

“Change of State: Information, Policy, and Power” by Sandra Braman was published by MIT Press.  For more information, including the Table of Contents and a sample chapter, see here.

Fired FBI Agent Says Termination Shows Bias

A lawsuit (pdf) filed on behalf of a Jewish-American FBI agent whose security clearance was revoked based on unspecified charges states that his termination was an improper expression of FBI bias against American Jews, and complains that the agent was unconstitutionally denied a right to confront and rebut the claims against him.

The case appears to have arisen in part from an earlier investigation of the American Israel Public Affairs Committee, the pro-Israel advocacy organization.  The FBI agent, named only as John Doe, says he was questioned about his contacts with AIPAC employees Steven Rosen and Keith Weissman, who were charged in 2005 under the Espionage Act in a case that was later dismissed.

The new lawsuit, filed by attorney Mark S. Zaid, indicates that John Doe had faxed unclassified articles prepared by the Foreign Broadcast Information Service to AIPAC, as well as another unclassified State Department document.

“These documents were directly related to matters on which John Doe worked as an Intelligence Research Specialist and his contacts with AIPAC officials were neither inappropriate nor outside the scope of his employment with the federal government,” the lawsuit states.

“The defendants [FBI and Department of Justice] effectively punished John Doe for lawful, proper, and necessary associations with American citizens who are Jewish and/or have association with the country of Israel by revoking his clearance and terminating his employment based on his contacts in violation of his First Amendment right of association,” the complaint states.

The FBI action response indicates “an unfounded paranoia far out of proportion to the innocuous and/or professional nature of John Doe’s relationships.  Defendants have failed to offer any factual evidence indicating John Doe’s associations were illegal, suspect, dangerous, deceptive, improper, or even untoward,” Mr. Zaid wrote.

A government response was not immediately available, but will be provided at a later date.

The lawsuit has at least a couple of noteworthy aspects.  First, it is part of a recurring pattern of conflict between U.S. national security agencies and individual members of the American Jewish community over their relationship to Israel or its advocates.  After the Jonathan Pollard case, no one can say that government security concerns on this score are categorically mistaken.  But after the misconceived and aborted AIPAC prosecution, no one can say they are consistently well-founded either.

Second, the lawsuit raises a broader question about the constitutionality of security clearance procedures (in Executive Order 12968, section 5.2d, and implementing regulations) that permit revocation of a clearance on national security grounds without any explanation, any chance to respond, or any forum for review.

“By revoking John Doe’s security clearance without providing notice of the charges against him and adequate opportunity to refute such charges, the FBI and DOJ violated due process guarantees under the Fifth Amendment.  The FBI cannot summarily revoke John Doe’s security clearance when such action violates the due process clause of the U.S. Constitution,” Mr. Zaid wrote.

Awkwardly for this line of argument, however, the Third Circuit Court of Appeals issued a ruling (pdf) this week upholding the use of these very procedures.  Citing the influential but controversial case of Navy v. Egan, the court affirmed the Department of Energy’s revocation of the security clearance of Egyptian-born American scientist Dr. Abdel Moniem Ali El-Ganayni.

Perhaps the good news is that the security clearance system does not single out Jews and Arabs for questionable treatment.  John Dullahan, an Irish-born Army veteran and DIA intelligence officer, also had his clearance for access to classified intelligence revoked last year.  He challenged that action in another lawsuit (pdf), also filed last week by Mr. Zaid.

The Decline of the Israeli Left

A recent book written by two Israeli writers and published in translation (pdf) by the DNI Open Source Center (OSC) traces what the authors see as the decline of Israel’s political left.

“The Left died the day the Six-Day War ended,” wrote Shmuel Hasfari and Eldad Yaniv.

“Until 1967, the Left actually managed some impressive deeds — it took control of the land, ploughed, sowed, harvested, founded the state, built the army, built its industry from scratch, fought Arabs, settled the land, built the nuclear reactor, brought millions of Jews here and absorbed them, and set up kibbutzim, moshavim, and agriculture…. What happened? How come that all that remains of the Zionist Left today is an anarchistic group that harasses the Border Police every Friday near the separation fence or at checkpoints and Women in Black?”

“This is not an academic work,” wrote Hasfari and Yaniv. “There are no footnotes and there is no bibliography. It is not a complete work, either. We have written here about some of the things that bother us a lot, matters that give us no peace of mind.  We ask you not to read this in one go since that is likely to be confusing. Taste it as you would a plate of appetizers, tapas. Take a little bit. Digest it and stop to think, argue, get angry, and if you want to, curse — feel free.”

“You can also put it in the bathroom. We will not be offended. On the contrary: There are no cell phones or text messages there, and you can think. Quietly. And read.”

The OSC translation has not been approved for public release, but a copy was obtained by Secrecy News.  Republication was permitted by the authors within the text.  See “The National Left (First Draft)” by Shmuel Hasfari and Eldad Yaniv, Open Source Center, December 31, 2009.

Understanding China’s Political System, More from CRS

New and updated reports from the Congressional Research Service obtained by Secrecy News include the following (all pdf).

“U.S. Periods of War,” January 7, 2010.

“Terrorist Watchlist Checks and Air Passenger Prescreening,” December 30, 2009.

“Cluster Munitions: Background and Issues for Congress,” December 22, 2009.

“Arms Sales: Congressional Review Process,” January 8, 2010.

“Desalination: Status and Federal Issues,” December 30, 2009.

“Understanding China’s Political System,” December 31, 2009.

A Military Guide to Nongovernmental Relief Organizations

In an effort to promote cooperation with non-governmental organizations (NGOs) engaged in humanitarian relief operations and to enhance its own emergency response capabilities, the Department of Defense has published a newly updated “Guide to Nongovernmental Organizations for the Military” (pdf).

When a devastating earthquake struck Haiti yesterday, several disaster relief organizations such as Oxfam and Doctors Without Borders were already in place and functioning.  Meanwhile, a spokeswoman for U.S. Southern Command told the Washington Post that “the military was just beginning to assess what resources it has in the region and … said no official request for help had reached the U.S. military.”  (That now seems to have changed, and a U.S. government response team is expected to arrive in Haiti today, according to the Associated Press.)

In fact, when it comes to disaster relief, NGOs and the military each have comparative strengths and weaknesses.  NGOs have greater flexibility, efficiency and responsiveness, are not hampered by the regulatory constraints that limit military operations, and are perceived as politically neutral.  “With staff members immersed in local populations, NGOs can absorb information faster than militaries can, often because militaries are isolated by force protection requirements,” the DoD Guide acknowledges.

On the other hand, military forces are far superior in their logistical and communications capabilities, and when necessary can bring force to bear to establish secure zones.  Also, “militaries can provide extensive intelligence information about population movements, security conditions, road, river, and bridge conditions, and other information pertinent to conducting humanitarian operations.”

And, the DoD Guide says, “Militaries can respond to maritime and/or chemical, biological radiological, nuclear and high yield explosives (CBRNE) emergencies.  NGOs have almost no capacity.”

“When working within a humanitarian emergency, it often appears that the military and NGOs speak different languages and have widely varying and potentially incompatible missions, capacities, and knowledge,” the Guide concludes.  “This is not necessarily true, and opinions are changing on both sides.”

The 363-page DoD Guide presents a fairly comprehensive introduction to the structure, functions and characteristic activities of non-governmental relief organizations.

“The guide book answers a need which is increasingly recognized in the military, to be able to work alongside NGOs and others who have experience and networks in the field,” Dr. Warner Anderson of the Office of the Assistant Secretary of Defense (Health Affairs) told Secrecy News.

The author, Dr. Lynn Lawry of the Center for Disaster and Humanitarian Assistance Medicine, is herself an NGO worker and researcher, with relief experience in Iraq, Afghanistan, Liberia, Rwanda, Congo and other areas of conflict.  The “Guide to Nongovernmental Organizations for the Military,” dated Summer 2009, was recently made public.  A copy is available on the Federation of American Scientists website.

Relief organizations accepting donations to provide assistance to earthquake survivors in Haiti include the Red Cross, Mercy Corps International, American Jewish World Service, and Catholic Relief Services.

Navy Issues Guidance on Use of Marine Mammals

A new U.S. Navy Instruction (pdf) updates Navy policy on the use of marine mammals for national security missions.

It seems that by law (10 USC 7524), the Secretary of Defense is authorized to “take” (or acquire) up to 25 wild marine mammals each year “for national defense purposes.”  These mammals — including whales, dolphins, porpoises, seals and sea lions — are used for military missions such as locating and marking underwater mines, and providing force protection against unauthorized swimmers or vehicles, among other things.

The new Secretary of the Navy Instruction 3900.41F, dated 13 November 2009 and published this week, provides guidance on “Acquisition, Transport, Care and Maintenance of Marine Mammals.”

The U.S. military marine mammal program has labored under a cloud of public suspicion, the Navy admits, and such suspicion has only been aggravated by the secrecy that surrounded the program for many years.

“Several decades of classification of the program’s true missions of mine-hunting and swimmer defense, led to media speculation and animal activist charges of dolphins used as offensive weapons, speculation and charges that could not be countered with facts due to that classification,” according to a Navy fact sheet.

“With declassification of the missions of the program in the early 1990s, the Navy has repeatedly and openly discussed those missions, but rumors are not easily forgotten, and there are those who continue to actively promote them.”

NRC Seeks Public Input on Open Government

In a remarkable sign of how the ground is shifting in government information policy, the Nuclear Regulatory Commission has invited the public to suggest categories of NRC information that should be published on its web site, and to recommend other measures the Commission might take to improve transparency, public participation and collaboration.

A December 8, 2009 Open Government Directive (pdf) issued by the Obama Administration ordered federal agencies to “identify and publish online in an open format at least three high-value data sets” within 45 days (i.e. by January 22), and to take other steps “toward the goal of creating a more open government.”

In a Federal Register notice published today, the NRC asked for public assistance to meet the requirements of the Open Government Directive.

“To aid the NRC’s efforts to determine what data sets might be appropriate to publish and what transparency, public participation, and collaboration improvements it might include in its Open Government Plan, the NRC is soliciting public comments. Comments regarding publication of data sets are requested as soon as possible in light of the January 22, 2010, target date for publication of data sets,” the NRC notice said.

In fact, anyone can propose high value data sets belonging to any agency for publication online, through a public comment page on the Obama Administration’s data.gov web site.

We have suggested publication of the CIA’s CREST database of declassified historical records, and of a broad selection of Open Source Center products that are not classified or copyrighted.  Matt Schroeder of the FAS Arms Sales Project recommended improved online publication of government data on U.S. arms exports.

ACLU Files Suit on Behalf of Fired CRS Official

The American Civil Liberties Union filed a lawsuit Friday on behalf of Col. Morris D. Davis, a former chief prosecutor at Guantanamo, alleging that he was unlawfully fired from the Congressional Research Service because he made statements as a private individual that were critical of Obama Administration policy on military commissions.  (“CRS Fires A Division Chief,” Secrecy News, December 4, 2009.)

“Col. Davis has a constitutional right to speak about issues of which he has expert knowledge, and the public has a right to hear from him,” said ACLU attorney Aden Fine.

The lawsuit names as defendants James H. Billington, the Librarian of Congress, as well as CRS Director Daniel P. Mulhollan, who is sued in his personal capacity.

At the root of the matter, ACLU argues, are ambiguous Library regulations and a problematic 2004 CRS policy (pdf) on “outside activities” by CRS employees.

“Neither the Library’s regulations nor CRS’s policy establishes a standard for determining which outside speaking and writing is permissible and which is not. The regulations and policy afford the Library and CRS unfettered discretion to determine which speech to punish,” according to the ACLU lawsuit (pdf).

“We maintain that the removal of Mr. Davis is justified,” wrote Library of Congress General Counsel Elizabeth Pugh on December 14, 2009 (pdf).

The case was assigned to Judge Reggie Walton of the DC District Court. A job vacancy notice for Mr. Davis’s position was posted on USAJobs on January 8, 2010.

Book: The World Bank Unveiled

“The World Bank Unveiled” tells the story of an attempt by World Bank researcher David Shaman and some of his colleagues to introduce greater transparency into the deliberations of the World Bank.

In 1999, at a time when the Bank was subject to intense controversy and public demonstrations, Shaman co-created the internet-based B-SPAN, which offered unedited videos of internal Bank discussions and debates.  “We began B-SPAN as a way to increase the Bank’s transparency.  We believed by doing so we would increase people’s understanding of what the Bank did, increase opportunities for the Bank to be more accountable to its critics, and thereby mute tensions on all sides.”

The 688-page book details the development of this transparency initiative from the author’s perspective, and describes its early success as well as the opposition that it quickly engendered.

“I decided to write The World Bank Unveiled because I believe it will provide an opportunity for those who want a more open and accountable institution to overcome an internal culture wedded to secrecy and a bureaucracy married to the status quo,” said Mr. Shaman. “If this should occur, the ultimate winners will be those millions who currently live in poverty because they will then have a more effective advocate on their behalf.”

See “The World Bank Unveiled: Inside the Revolutionary Struggle for Transparency” by David Ian Shaman, Parkhurst Brothers Inc. Publishers, 2009.