Posts from June, 2011

What is the President’s Greatest Responsibility?

According to President Obama, he has no higher duty than to protect the American people.  But that’s not what the Constitution says.

“As President, I have often said that I have no greater responsibility than protecting the American people,” wrote President Obama in the new “National Strategy for Counterterrorism” (pdf) that was released by the White House yesterday.  A similar sentiment appears in the Introduction to the new Strategy, which states that the President “bears no greater responsibility than ensuring the safety and security of the American people.”

This seems like a fateful misunderstanding.  As chief executive and commander in chief of the armed forces, the President obviously has responsibility for national security.  But to claim that he has no greater responsibility than “protecting the American people” is a paternalistic invention that is historically unfounded and potentially damaging to the political heritage of the nation.

The presidential oath of office that is prescribed by the U.S. Constitution (Art. II, sect. 1) makes it clear that the President’s supreme responsibility is to “…preserve, protect, and defend the Constitution of the United States.”  There is no mention of public safety.  It is the constitutional order that the President is sworn to protect, even if doing so entails risks to the safety and security of the American people.

The new Strategy document attempts to foreclose the possibility of any conflict between constitutional values and public security by asserting that the two always coincide.  “We are committed to upholding our most cherished values as a nation not just because doing so is right but also because doing so enhances our security.”  It just so happens, the document says, that constitutional values are instrumentally useful in advancing security.  “Adherence to those core values — respecting human rights, fostering good governance, respecting privacy and civil liberties, committing to security and transparency, and upholding the rule of law — enables us to build broad international coalitions to act against the common threat posed by our adversaries while further delegitimizing, isolating, and weakening their efforts.” (p.4).

But the idea that adherence to constitutional values always enhances security is wishful thinking.  The Constitution imposes burdensome limits on government authority and guarantees various rights in order to advance individual freedom, not collective security.  As a result, the interests of security and constitutional freedom are often in conflict, and it is necessary to give priority to one or the other.  One has to choose.

CIA Wins Ruling in Prepublication Review Dispute

A federal court said that a former CIA clandestine services officer had breached his secrecy agreement by publishing a critical account of the CIA without obtaining prior Agency authorization.

Judge Gerald Bruce Lee of the Eastern District of Virginia ruled at a June 15 hearing (pdf) that the CIA officer, who goes by the pseudonym “Ishmael Jones,” would be held liable for publishing his 2008 book “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” in the face of a refusal by the CIA’s Prepublication Review Board to clear the volume for publication.

“It is uncontroverted in this case that Mr. Jones signed a secrecy agreement that required him to submit his manuscript for prepublication review and that required him not to publish it unless and until he received the Agency’s written approval,” Justice Department attorney Marcia Berman told the court on June 15.  “It is also uncontroverted that Mr. Jones submitted a manuscript to the prepublication review process and that the Agency denied him permission to publish the manuscript.”

But defense attorney Laurin Mills countered that the CIA breached the agreement first by failing to complete the review of Mr. Jones’ manuscript in a timely fashion and then issuing a “bad faith denial.”  “I think after 18 months of going through the [prepublication review] process, with them denying him the right to publish anything but footnotes,… and going six months through an appeal process where the Government’s own regulations say they’re supposed to complete it in a month, he exercised his rights under the First Amendment to publish this.”

“I don’t think that this is really a very difficult question,” said Judge Lee in ruling for the CIA and against Mr. Jones.  “I think the Snepp case would control here,” he said, referring to the case of former CIA officer Frank Snepp, whose 1977 Vietnam War memoir “Decent Interval” was published over CIA objections.  The CIA won a U.S. Supreme Court ruling against Mr. Snepp and was awarded the royalties from his book.

“It seems to me that where [Ishmael Jones] signed a binding secrecy agreement that prevented him from publishing any materials prior to receiving written consent, that under Snepp liability… has been established.  His signing a secrecy agreement does not violate his First Amendment rights,” Judge Lee said.

If Mr. Jones believed CIA was wrongly blocking publication of his book, the Judge said, “he had a remedy and that remedy was to come to U.S. District Court and to pursue a claim to have the Court determine if the Agency’s withholding of permission was unreasonable.”

“[Jones' decision] to go forward without pursuing his remedies before the court was the breach.  It was not the Government’s breach.  The Government was carrying out its agreement.”

“What remains to be [decided] is the issue of what remedy the Government is entitled to because of the breach of secrecy agreement,” Judge Lee said.

A copy of the June 15 hearing transcript was obtained by Secrecy News.  The court ruling was first reported by Josh Gerstein in Politico on June 28.  Frank Snepp presented a gripping account of his legal battle with CIA in the 1999 book “Irreparable Harm.”

History of the Gold Standard, and More from CRS

Congress has directed the Congressional Research Service not to make its reports directly available to the public. This policy does not make any practical sense and does not command respect inside or outside of government, but it has proven easier to work around the policy than to change it. Here are some new CRS reports obtained by Secrecy News (all pdf).

Brief History of the Gold Standard in the United States, June 23, 2011

Military Construction: Analysis of the FY2012 Appropriation and Authorization, June 22, 2011

Warrantless, Police-Triggered Exigent Searches: Kentucky v. King in the Supreme Court, June 17, 2011

The Smart Grid and Cybersecurity — Regulatory Policy and Issues, June 15, 2011

DNA Databanking: Selected Fourth Amendment Issues and Analysis, June 6, 2011

Why Weren’t 11 Words Redacted from the Pentagon Papers?

On May 26 Archivist of the United States David S. Ferriero announced that the Pentagon Papers, the famous history of the Vietnam War, had been formally declassified and would be released — except for eleven words that remained classified.  But then on June 13, the Papers were published in full with no redactions at all.

What happened?  It turns out that the mysterious eleven words had already been published 40 years ago, making their continued classification moot.

Staffers at the Lyndon B. Johnson Presidential Library discovered on June 3 that “The full text of that page [containing the eleven words] was released in 1971 [by the House Armed Services Committee] in what appears to be an officially declassified copy,” according to email correspondence (pdf) released this week by the National Archives under the Freedom of Information Act.

In other respects the House Armed Services Committee edition of the Papers was “heavily redacted,” officials noted, but it did contain the eleven words.

Given the fact of their prior disclosure, any attempt to keep them classified now would surely backfire, they reasoned.

“The researcher who is most aggressive in pursuing the PP [Pentagon Papers], John Prados [of the National Security Archive], will most likely find the ‘declassified’ occurrence of the page pretty quickly.  So please advise everyone that if they insist on maintaining the redaction, Prados will likely scope out the ‘declassified’ page very quickly.  As you can tell by his NPR appearance [on June 3], Prados will parade this discovery like a politician on the 4th of July,” wrote Alex Daverede of the National Archives.

This argument was persuasive, and the proposed redactions were deemed to be “no longer appropriate.”  But neither the classifying agency nor the now restored eleven words themselves were publicly identified.  Sheryl Shenberger, the former CIA employee who leads the National Declassification Center, told her colleagues somewhat peremptorily that such disclosure was “unnecessary.”

“I think we can all agree that it is unnecessary to provide any further insight into what was originally considered for redaction or which agency or agencies were suggesting those redactions,” Ms. Shenberger wrote.  “It should be enough to announce that we… are delighted to have determined that we can release this historic document in full.”

Fifty Years of Space Nuclear Power

Fifty years ago this week, on June 29, 1961, an electrical generator driven by nuclear energy was launched into space for the first time.

The SNAP-3 radioisotope thermoelectric generator (RTG) powered by the natural decay heat of plutonium-238 provided a minuscule 2.7 watts of power to the Navy’s Transit 4A navigational satellite, which was placed in orbit around the Earth at a mean altitude of 930 kilometers.  The event was commemorated in this advertisement (pdf) for Martin Marietta, as the device’s manufacturer was then known, which appeared in the December 1962 issue of Astronautics magazine (thanks to Gary L. Bennett).

Since that time, plutonium power sources have enabled a series of ambitious missions into deep space that may rank among the grandest adventures of all time, extending human cognition into domains that were previously accessible only by imagination.  Voyager 1 and 2, for example, twin RTG-powered probes which were launched in 1977, are now on the threshold of becoming the first spacecraft to leave the solar system and to enter interstellar space.

“The men and women involved in Voyager did something that is absolutely the equal of Magellan or Columbus or any of the great explorers of terrestrial discovery,” said project contributor (and FAS sponsor) Ann Druyan. She and Voyager project scientist Ed Stone offered “Perspectives on More Than 3 Decades of the Voyager Mission” (pdf) in an article by Randy Showstack in the May 10 issue of Eos, the weekly newspaper of the American Geophysical Union (scroll down to the middle of the first page).

Unfortunately, the plutonium 238 power sources that are used to power these missions are not only expensive, they are dirty and dangerous to produce and to launch.  The first launch accident (pdf) involving an RTG occurred as early as 1964 and distributed 17,000 curies of plutonium-238 around the globe, a 4% increase in the total environmental burden (measured in curies) from all plutonium isotopes (mostly fallout from atmospheric nuclear weapons testing).

A plutonium fueled RTG that was deployed in 1965 by the CIA not in space but on a mountaintop in the Himalayas (to help monitor Chinese nuclear tests) continues to generate anxiety, not electricity, more than four decades after it was lost in place.  See, most recently, “River Deep Mountain High” by Vinod K. Jose, The Caravan magazine, December 1, 2010.

A good deal of effort has been invested to make today’s RTGs more or less impervious to the most likely launch accident scenarios.  But they will be never be perfectly safe.  In order to minimize the health and safety risks involved in space nuclear power while still taking advantage of the benefits it can offer for space exploration, the Federation of American Scientists years ago proposed (pdf) that nuclear power — both plutonium-fueled RTGs and uranium-fueled reactors — be used only for deep space missions and not in Earth orbit.

Although this proposal was never officially adopted, it represents the de facto policy of spacefaring nations today.

The next RTG enabled space mission, the Mars Science Laboratory (MSL), is scheduled to be launched from Cape Canaveral between November 25 and December 18 of this year.  The MSL rover, known as “Curiosity,” will be fueled with 4.8 kilograms of plutonium dioxide.  It will be, NASA says, “the largest, most capable rover ever sent to another planet.”

Dirty Bombs, and More from CRS

A substantial new report from the Congressional Research Service (CRS) considers the potential threat posed by radiological dispersal devices or “dirty bombs.” At the direction of Congress, the CRS does not make its publications directly available to the public.  The “dirty bomb” report, as well as a shorter, abridged version of the report, and the other new reports listed below were obtained by Secrecy News (all pdf).

“‘Dirty Bombs’: Technical Background, Attack Prevention and Response, Issues for Congress,” June 24, 2011

“‘Dirty Bombs’: Background in Brief,” June 24, 2011

“Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015,” June 16, 2011

“Gun Control Legislation,” June 9, 2011

“State Taxation of Internet Transactions,” June 7, 2011

“Kazakhstan: Recent Developments and U.S. Interests,” June 1, 2011

“U.S. Foreign Aid to the Palestinians,” May 31, 2011

“New Zealand: Background and Bilateral Relations with the United States,” May 27, 2011

Reporter Risen Moves to Quash Subpoena in Leak Case

Attorneys for New York Times reporter James Risen yesterday asked a court to quash a subpoena requiring him to testify in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to Mr. Risen.

“Because the information sought by the Government is protected by the reporter’s privilege under the First Amendment and federal common law, and the subpoena is part of an effort to harass and retaliate against Mr. Risen for writing things that were critical of the government, Mr. Risen respectfully requests that the Court … grant Mr. Risen’s motion to quash the grand jury subpoena and/or for a protective order,” attorney Peter K. Stackhouse wrote (pdf).

Mr. Risen himself submitted a lengthy affidavit (pdf) reflecting on his own career, the function of investigative reporting in the national security domain, and the stakes involved in the Sterling case subpoena.

“I take very seriously my obligations as a journalist when reporting about matters that may be classified or may implicate national security concerns,” he wrote.  “I do not always publish all information that I have, even if it is newsworthy and true.  If I believe that the publication of the information would cause real harm to our national security, I will not publish a piece.  I have found, however, that all too frequently, the government claims that publication of certain information will harm national security, when in reality, the government’s real concern is about covering up its own wrongdoing or avoiding embarrassment.”

His investigative reporting has made him a target for government retribution, Mr. Risen wrote.

“By publicly speculating about the possibility of prosecuting journalists, such as myself, under the Espionage Act for publishing truthful stories containing classified information, I believe that the Government was trying to intimidate journalists, like me, who publish stories that expose excessive government secrecy, illegality, or malfeasance.”

“I believe that the efforts to target me have continued under the Obama Administration, which has been aggressively investigating whistleblowers and reporters in a way that will have a chilling effect on the freedom of the press in the United States.”

“Any testimony I were to provide to the Government would compromise to a significant degree my ability to continue reporting as well as the ability of other journalists to do so.  This is particularly true in my current line of work covering stories relating to national security, intelligence and terrorism.  If I aided the Government in its effort to prosecute my confidential source(s) for providing information to me under terms of confidentiality, I would inevitably be compromising my own ability to gather news in the future.  I also believe that I would be impeding all other reporters’ ability to gather and report the news in the future.”

“Based on my review of the Government’s papers and the particular nature of the testimony the Government claims to be seeking, I have concluded that I cannot answer the questions the Government wants to ask me consistent with my obligation to maintain the confidentiality of my source(s),” Mr. Risen wrote.

The Risen pleading, portions of which were filed under seal, was accompanied by hundreds of pages of exhibits and attachments (large pdf), including declarations filed in support of Mr. Risen in 2008 by journalists Scott Armstrong, Carl Bernstein, Jack Nelson, and Dana Priest, and historian Anna Nelson.

In a separate response (pdf), attorneys for Mr. Sterling also opposed the government’s motion to subpoena Mr. Risen.

A court hearing on the subpoena and the motion to quash is scheduled for July 7, 2011 in the U.S. District Court for the Eastern District of Virginia.

Bill Would Keep Intelligence Spending in Defense Budget

An intelligence reform proposal to establish a stand-alone budget appropriation for intelligence spending would be blocked if a provision in the House version of the Fiscal Year 2012 defense appropriations bill is enacted into law. Instead, intelligence spending would remain concealed in the defense budget.

“None of the funds appropriated in this or any other Act may be used to plan, prepare for, or otherwise take any action to undertake or implement the separation of the National Intelligence Program budget from the Department of Defense budget,” the House Appropriations Committee said in section 8118 of the pending 2012 defense bill (H.R. 2219).

If adopted in the final version of the bill, this measure would scuttle the possibility of a separate budget appropriation for intelligence — a reform that was specifically advocated by the 9/11 Commission and embraced by the current Director of National Intelligence, James R. Clapper.

“To combat the secrecy and complexity we have described,” the 9/11 Commission wrote in chapter 13 (pdf) of its final report, “the overall amounts of money being appropriated for national intelligence and to its component agencies should no longer be kept secret. Congress should pass a separate appropriations act for intelligence, defending the broad allocation of how these tens of billions of dollars have been assigned among the varieties of intelligence work.”

A separate appropriation for intelligence has also been advocated by public interest groups since it would increase the transparency and the integrity of the budget process.  In particular, it would eliminate the deception involved in presenting non-DoD intelligence spending (such as the CIA budget) as if it were part of the defense budget, while also misrepresenting the actual amount of the DoD budget.

For his own reasons, DNI Clapper initiated a process of removing the national intelligence budget from its concealment in the defense budget over a year ago.  “I would support and I’ve also been working [on] actually taking the National Intelligence Program [NIP] out of the DoD budget,” he said at his July 2010 confirmation hearing.  Doing so would “serve to strengthen the DNI’s hand in managing the money in the intelligence community,” he explained.

“The proposal to separate the NIP portion of the Defense budget was [intended] to provide greater visibility and oversight of NIP resources, as well as improve NIP financial management practices,” said Under Secretary of Defense for Intelligence Michael Vickers last February in answer to questions (pdf) from the Senate Armed Services Committee.

Mr. Vickers said at that time that “no final decisions have been made on removing the NIP from the DoD budget.”  But a Congressional Research Service report (pdf) last month said that “[DNI] Clapper has announced plans to take the NIP out of the DOD budget beginning in 2013.”

Now that prospect may be in doubt.  The House Appropriations Committee did not provide any explanation for its move to block a separate budget appropriation for intelligence, but an obvious inference is that any change in the status quo could entail a reduction in the jurisdiction and budget authority of the defense appropriations subcommittee.

It appears that the Committee’s priority is to prevent any reduction or alteration in its legislative turf, even if this means sacrificing the accuracy and integrity of the budget process.

Before a separate budget line item for intelligence could even be considered, there were two prerequisites:  declassification of the annual appropriation for intelligence and of the coming year’s budget request.  Both of those steps have now been accomplished.

Stormy Weather, and More from CRS

The Congressional Research Service is prohibited by congressional secrecy policy from making its reports directly available to the public.  These new CRS reports on various topics of current interest were obtained by Secrecy News (all pdf).

“Severe Thunderstorms and Tornadoes in the United States,” May 26, 2011.

“Defense: FY2012 Budget Request, Authorization and Appropriations,” June 15, 2011.

“FBI Directorship: History and Congressional Action,” June 7, 2011.

“Presidential Authority to Impose Requirements on Federal Contractors,” June 14, 2011.

“Funding Emergency Communications: Technology and Policy Considerations,” June 14, 2011.

“The Global Climate Change Initiative (GCCI): Budget Authority and Request, FY2008-FY2012,” June 1, 2011.

“Legislative History Research: A Basic Guide,” June 15, 2011.

“Mongolia: Issues for Congress,” June 14, 2011.

“Application of Religious Law in U.S. Courts: Selected Legal Issues,” May 18, 2011.

Govt Opposes Attorneys’ Free Use of WikiLeaks Documents

The government yesterday filed a formal response (pdf) in federal court in opposition to the public use of WikiLeaks documents by a habeas attorney who represents a client in U.S. military detention at Guantanamo Bay.  Those documents are or may be classified, the government insisted, and must continue to be treated as such.

In an April 27 motion (pdf), attorney David Remes had asked the Court to authorize “full and unfettered access” to WikiLeaks documents pertaining to his client, and to affirm that he “may publicly view, download, print, copy, disseminate, and discuss the documents and their contents, without fear of any sanctions.”

“Any member of the general public can view these files, download them, print them, circulate them, and comment on them,” Mr. Remes wrote. “Undersigned counsel, however, fears that he will face potential sanctions, legal or otherwise, if he does exactly the same things without express government permission.”

In its response yesterday, the government said that Mr. Remes (and other habeas attorneys) may “view” the documents on a non-governmental computer, but may not “download, print, copy, disseminate, [or] discuss these documents” in public.

To justify its position, the government argued that it had not confirmed the authenticity of any particular WikiLeaks document, and that the restrictions on attorneys’ use of the documents serve to maintain the possibility that one or more of the documents is not genuine.

“Although the Government has confirmed that purported detainee assessments were leaked to WikiLeaks, the Government has neither confirmed nor denied that any particular individual report appearing on the WikiLeaks website is an official government document,” the government attorneys wrote.

“The Government must refrain from confirming whether any particular reports disseminated by WikiLeaks are genuine detainee assessments or not, to avoid the risk of even greater harm to national security than may have already been caused by WikiLeaks’ disclosures.”

This argument seems weakened, however, by the fact that the Government has not identified even one document among the many thousands released by WikiLeaks that is not genuine or is not what it appears to be.  In the absence of even a single such case of falsification, the documents may be understood to be presumptively authentic even if government officials will not deign to say so.

It will be up to the Court to decide which party’s perspective is legally compelling.