Posts from June, 2011

DoD Creates Lab Network for WMD Response

The Department of Defense has created a new DoD Laboratory Network (pdf) to coordinate existing programs on the assessment of and response to the use of weapons of mass destruction.

The new Network is intended “to provide timely, high-quality, actionable results for early detection, confirmation, response, and effective consequence management of acts of terrorism or warfare involving CBRN [chemical, biological, radiological, and nuclear] agents; infectious disease outbreaks; and other all-hazards agent events requiring a DoD integrated incident response.”

The initiative was set forth in DoD Instruction 6440.03, “DoD Laboratory Network (DLN),” June 10, 2011.

Meanwhile, the U.S. Navy has updated its “Minimum Security Standards for Safeguarding Biological Select Agents and Toxins,” OPNAV Instruction 5530.16A (pdf), 11 May 2011.

The Department of Defense has also issued new guidance on regulating access to classified nuclear weapons information, including the relatively new (2006) category known as “Sigma 20″ information, which pertains to improvised nuclear devices.  See “Access to and Dissemination of Restricted Data and Formerly Restricted Data,” DoD Instruction 5210.02 (pdf), 03 June 2011.

Tiger Trap: America’s Secret Spy War with China

In his new book “Tiger Trap,” veteran intelligence author David Wise turns his attention to the history of Chinese espionage against the United States and the sometimes clumsy, self-defeating U.S. response.

While the subject matter often lends itself to exaggeration or anti-China animus, Mr. Wise generally evades these hazards and sticks close to the facts.  And though at least the outlines of individual episodes described in the book have previously been reported, the author fills in numerous gaps in the public record, including some previously classified details.  The book presents Chinese espionage successes and failures, some brilliant U.S. counterintelligence strokes and some egregious failures, some suspects who were falsely accused and others who got away nearly unscathed.

It all adds up to a lively and surprisingly cohesive narrative, especially since many of the individual stories overlap with one or more of the others.  “Chinese spy cases have tendrils that often seem to reach out and become entangled in other cases,” Mr. Wise writes.

When it comes to espionage, “China may be America’s single most effective and dangerous adversary,” according to Mr. Wise.  “It managed over the years to penetrate both the CIA and the FBI.  It acquired highly classified and guarded nuclear weapons secrets.”

“Without exaggerating the danger of Chinese espionage, or magnifying the threat, it is a fact that China’s spying on America is ongoing, current, and shows no sign of diminishing.  The conflict is no less real for being mostly unseen.”  It goes without saying that U.S. intelligence also collects against China.

“Tiger Trap: America’s Secret Spy War with China” by David Wise was published this week by Houghton Mifflin Harcourt.

Some other newly received books in our “to read” pile include these:

“Abuse of Power: How Cold War Surveillance and Secrecy Policy Shaped the Response to 9/11″ by Athan G. Theoharis, Temple University Press, May 31, 2011.

“15 Minutes: General Curtis LeMay and the Countdown to Nuclear Annihilation” by L. Douglas Keeney, St. Martin’s Press, February 2011.

“Atom Bombs: The Top Secret Inside Story of Little Boy and Fat Man” by John Coster-Mullen, 2011.

Two Cultures of Secrecy and Disclosure

The legitimacy of official secrecy policy that is taken for granted within official circles is increasingly open to question within the press and among many members of the public.

“Government officials must… accept the enduring reality of a media culture that is prepared to publish official secrets and considers such disclosure a patriotic contribution to democratic discourse,” said the Congressional Research Service in passing in a new report.  See “Intelligence Information: Need-to-Know vs. Need-to-Share” (pdf), June 6, 2011.

This is not quite precise, since no U.S. news organization publishes official secrets just because they are secret.  And no one seriously views the publication of a classified technical manual, for example, as a contribution to democratic discourse.  The secrets must also be newsworthy, and even then most news outlets will exercise discretion and will give consideration to national security claims.

But it is certainly true that reputable news organizations of liberal, conservative and other editorial persuasions will publish classified information over government objections.  That is the privilege and the right of a free press.

Strangely, the obverse is also true:  Government officials will sometimes insist that information that is irreversibly public is nevertheless classified and subject to official security controls.

This was demonstrated most recently in a Justice Department policy for habeas attorneys regarding limitations on access to records published by WikiLeaks concerning detainees at Guantanamo, as first reported by the New York Times on June 11.

“While you may access such material from your non-U.S.-Government-issued personal and work computers,” the attorneys were told (pdf), “you are not permitted to download, save, print, disseminate, or otherwise reproduce, maintain, or transport potentially classified information.”

But the idea that information can be “accessed” online without “downloading” it is garbled, and it illustrates the confusion that prevails in government regarding classified information in the public domain.  See “Feds’ policy on reading WikiLeaks docs ‘incoherent,’ critics say” by Josh Gerstein, Politico Under the Radar, June 12.

The gap that separates the two cultures of government and media over official secrecy could be narrowed if not eliminated by a concerted effort to limit secrecy to its least ambiguous, most broadly accepted purposes.  But currently, the Obama Administration is devoting far more effort to enforcing the existing secrecy regime than to fixing it.

Protocols on Nuke Free Zones in Africa, Pacific Sent to Senate

With little fanfare, the White House last month transmitted the protocols of two treaties on nuclear weapons free zones in the South Pacific and Africa to the U.S. Senate for ratification.  The Protocols generally commit the signatories “not to use or threaten to use a nuclear explosive device” against any other party to the Treaty.

Protocols 1, 2, and 3 to the South Pacific Nuclear Free Zone Treaty (pdf) had been signed by the United States in 1996, but were not submitted for Senate ratification until now.

Likewise, Protocols I and II to the African Nuclear-Weapon-Free Zone Treaty (pdf) were signed by the U.S. in 1996, but never ratified.

In each case, President Obama wrote in his transmittal letters on May 2, 2011 that “I am convinced that it is in the best interest of the United States to ratify [the Protocols].  This step will strengthen our relations with our… friends and allies and enhance U.S. security by furthering our global nonproliferation and arms control objectives.”

Entry into force of the Protocols “would require no changes in U.S. law, policy, or practice,” the President wrote.

The Protocol packages transmitted to the Senate provide detailed accounts of the history of each agreement, along with an explanation of the Protocols’ provisions.  The Senate has not yet taken action to consider ratification of the Protocols.

There are five treaty-based nuclear weapons free zones around the world, as noted by the Arms Control Association, including Latin America and the Caribbean, South Pacific, Southeast Asia, Africa, and Central Asia.

Settlement Reached in Thomas Drake “Leak” Case

In a whirlwind conclusion to the prosecution of former National Security Agency official Thomas A. Drake, Mr. Drake agreed to plead guilty to a misdemeanor charge of “exceeding authorized use of a computer.”

Prosecutors were unable to sustain any of the felony counts against Mr. Drake that were contained in last year’s ten-count indictment, including charges of unauthorized retention of classified material under the Espionage Act of 1917.

A copy of the June 9, 2011 plea agreement is here.

Mr. Drake had been suspected of unauthorized disclosures of classified information to the press, though he was not specifically charged with that offense, and he denied committing it.

Much of the case was conducted behind closed doors and off the public record, so many intriguing aspects of its ultimate resolution remain obscure for the time being.  But it seems clear that the Obama Administration misjudged the merits of its case against Drake, pursuing minor infractions with disproportionate zeal.

Meanwhile, Mr. Drake’s legal team, public defenders James Wyda and Deborah L. Boardman, did a superb job of defending their client in a challenging legal environment.  Drake’s supporters at the Government Accountability Project managed to win a remarkable degree of public sympathy and support for a supposed felon.

Speaking of disproportionate zeal, I wrote last Monday that there was “no possibility” of avoiding trial on June 13.  Consider this a correction.

See related coverage in the Washington Post, Politico, New York Times, Wall Street Journal, Washington Times, AP, MSNBC and Emptywheel.

NSA Declassifies 200 Year Old Report

The National Security Agency announced yesterday that it has declassified a report that is over two hundred years old.

The newly declassified report, entitled “Cryptology: Instruction Book on the Art of Secret Writing,” dates from 1809.  It is part of a collection of 50,000 pages of historic records that have just been declassified by NSA and transferred to the National Archives.

The NSA said the new release demonstrated its “commitment to meeting the requirements” of President Obama’s January 2009 Memorandum on Transparency and Open Government.

The bulk of the newly released documents are from World War II and the early post-War era. (NSA itself was established in 1952.)  A list of titles released to the National Archives is here (pdf).

Last April, the Central Intelligence Agency declassified several documents on the use of “invisible ink” that dated from the World War I era.  But those were not even a century old.

Meanwhile, in more recent developments, the case of former NSA official Thomas A. Drake, who is charged with unlawful retention of classified information, is said to be “changing hour by hour.”

On Sunday, the government told the court (pdf) it had decided to withdraw several of its proposed exhibits rather than declassify them for trial, Politico reported (“Feds pare back NSA leak case to shield technology” by Josh Gerstein, June 6).

As a consequence, prosecutors are now seeking a plea bargain, the Washington Post reported, but Drake has twice refused to accept their offer (“Ex-NSA manager has reportedly twice rejected plea bargains in Espionage Act case” by Ellen Nakashima, June 9).

The trial of Thomas Drake is currently still scheduled to begin in Baltimore on Monday, June 13.

NSA Declassifies 200 Year Old Report

The National Security Agency announced yesterday that it has declassified a report that is over two hundred years old.

The newly declassified report, entitled “Cryptology: Instruction Book on the Art of Secret Writing,” dates from 1809.  It is part of a collection of 50,000 pages of historic records that have just been declassified by NSA and transferred to the National Archives.

The NSA said the new release demonstrated its “commitment to meeting the requirements” of President Obama’s January 2009 Memorandum on Transparency and Open Government.

The bulk of the newly released documents are from World War II and the early post-War era. (NSA itself was established in 1952.)  A list of titles released to the National Archives is here (pdf).

Last April, the Central Intelligence Agency declassified several documents on the use of “invisible ink” that dated from the World War I era.  But those were not even a century old.

Meanwhile, in more recent developments, the case of former NSA official Thomas A. Drake, who is charged with unlawful retention of classified information, is said to be “changing hour by hour.”

On Sunday, the government told the court (pdf) it had decided to withdraw several of its proposed exhibits rather than declassify them for trial, Politico reported (“Feds pare back NSA leak case to shield technology” by Josh Gerstein, June 6).

As a consequence, prosecutors are now seeking a plea bargain, the Washington Post reported, but Drake has twice refused to accept their offer (“Ex-NSA manager has reportedly twice rejected plea bargains in Espionage Act case” by Ellen Nakashima, June 9).

The trial of Thomas Drake is currently still scheduled to begin in Baltimore on Monday, June 13.

Emerging Issues in Text Messaging, and More from CRS

New reports from the Congressional Research Service include the following (all pdf).

“Text and Multimedia Messaging: Emerging Issues for Congress,” May 18, 2011.

“The Motor Vehicle Supply Chain: Effects of the Japanese Earthquake and Tsunami,” May 23, 2011.

“Executive Branch Reorganization Initiatives During the 112th Congress: A Brief Overview,” May 26, 2011.

“Status of Mexican Trucks in the United States: Frequently Asked Questions,” May 16, 2011.

“Promoting Global Internet Freedom: Policy and Technology,” May 26, 2011.

Prosecution of Thomas Drake “Smacks of Overkill”

The prosecution of former National Security Agency official Thomas A. Drake under the Espionage Act “smacks of overkill,” said the Washington Post in an editorial today (“A case that could be overkill against a whistleblower,” June 6).

The Post editorial tends to ratify a growing consensus that the prosecution of Drake on charges of unauthorized retention of classified information is a mistake, and that the Obama Administration has mishandled the case.  That view was crystallized by a widely-read New Yorker article written by Jane Mayer (“The Secret Sharer,” May 23), and reinforced by a 60 Minutes profile (May 22), as well as a Ridenhour whistleblower award.

There is no evidence that Mr. Drake intended to cause harm to the United States or that he actually did so, even inadvertently.  The prosecutors themselves do not claim that any classified information that might have been in Mr. Drake’s possession appeared in the press as a result of his actions.  Yet he faces the possibility of multiple decades in prison.

“The question here is whether the indictment and proposed punishment are proportionate to the alleged infraction,” the Post editorial said.  Clearly, they are not.

When former National Security Adviser Sandy Berger was found to have unlawfully removed classified records (pdf) from the National Archives — in circumstances that were far more egregious and much less susceptible to an innocent interpretation than anything Mr. Drake did — Mr. Berger was not charged under the Espionage Act.  He pled guilty to a misdemeanor charge of “unauthorized removal and retention of classified documents or material” under 18 USC 1924, and was sentenced to two years of probation.  He also had to pay a fine, to perform 100 hours of community service, and to forego access to classified material for three years.

There is no possibility at this late date that the Obama Administration will acknowledge its error and change course before Mr. Drake’s trial begins on June 13.  But one may still hope that a sensible jury will discern the injustice in the Administration’s pursuit of Mr. Drake and draw the only appropriate conclusion.