Posts from November, 2011

Military Detention Authority, and More from CRS

Pending legislation to authorize and require military detention of suspected terrorists — which advanced in the Senate yesterday — was examined, section by section, in a Congressional Research Service report that was updated earlier this month.  See Detainee Provisions in the National Defense Authorization Bills, November 18, 2011.

Other new or newly updated CRS reports that have not been made readily available to the public include the following (all pdf).

Afghanistan Casualties: Military Forces and Civilians, November 16, 2011

Russia’s Accession to the WTO and Its Implications for the United States, November 16, 2011

Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement, November 14, 2011

Gun Control Legislation, November 7, 2011

Homeland Security Department: FY2012 Appropriations, November 2, 2011

Origins and Missions of U.S. Combatant Commands

The history, missions and operations of the nine U.S. military combatant commands (COCOMs) are detailed in a new report from the Congressional Research Service.

Collectively, these military commands operate across the globe.  “In a grand strategic sense, the [Unified Command Plan] and the COCOMs are the embodiment of U.S. military policy both at home and abroad.  The COCOMs not only execute military policy but also play an important role in foreign policy,” the CRS said.

The CRS report presents some critical discussion of the role of the COCOMs in shaping U.S. policy.  The report cites a series of stories by Dana Priest in the Washington Post in September 2000 which said the COCOMs “had evolved into the modern-day equivalent of the Roman Empire’s proconsuls– well-funded, semi-autonomous, unconventional centers of U.S. foreign policy.”

“Some national security experts consider this [Washington Post] series as the catalyst of the continuing debate as to whether or not COCOMs have assumed too much influence overseas, thereby diminishing the roles other U.S. government entities play in foreign and national security policy,” the CRS report said.  “The assertion that COCOMs have usurped other U.S. government entities in the foreign policy arena may deserve greater examination,” the report added.

Congress has prohibited CRS from making its publications directly available to the public.  A copy of the report was obtained by Secrecy News.  See “The Unified Command Plan and Combatant Commands: Background and Issues for Congress,” November 7, 2011.

Women in Combat

The expanding role of women in combat is examined in another new report from the Congressional Research Service.

“Laws prohibiting women from serving in combat units were repealed in the early 1990s,” the CRS report noted. “However, since then, it has been U.S. military policy to restrict women from certain units and military occupations, especially ground combat units. In recent years, efforts have been underway to remove these restrictions. Opponents have questioned the need to modify or remove these restrictions and the purposes for doing so.”

Meanwhile, “In 10 years of combat operations in Iraq and Afghanistan, thousands of female members have been deployed, and hundreds wounded and/or killed. According to the Department of Defense (DOD), as of August 31, 2011, over 26,000 female members were serving in Iraq and Afghanistan. On numerous occasions women have been recognized for their heroism, two earning Silver Star medals.”  See “Women in Combat: Issues for Congress,” November 8, 2011.

Civil Liberties Oversight Board Still Dormant

The Privacy and Civil Liberties Oversight Board that was supposed to provide independent oversight of U.S. counterterrorism policies remains dormant and out of service because its members have still not been named and confirmed.

In a report that was newly updated this month, the Congressional Research Service traced the origins of the Board from a recommendation by the 9/11 Commission through its initial establishment as a White House agency to its reconstitution as an independent agency chartered by statute in 2007.

The Board was assigned two overriding missions: It was supposed to “analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties”;  and to “ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”

So had the Board been functional, it might have been a valuable participant in current deliberations over military detention authority, for example.  It might also have conducted investigative oversight into any number of other counterterrorism policies, as mandated by law.  But for all practical purposes, there is no Board.

Last January, President Obama named Elisebeth C. Cook and James X. Dempsey to serve on the Board.  The Senate has not acted on their nomination.  Even if they had been confirmed, however, they would not have constituted a quorum.  Thus, the Board’s activation is still dependent on presidential nomination of additional Board members.  See “Privacy and Civil Liberties Oversight Board: New Independent Agency Status,” November 14, 2011.

Leak Prosecutions Inch Forward

The three ongoing prosecutions under the Espionage Act of individuals who allegedly “leaked” classified information to the press are slowly moving forward.

Prosecutors will present their opening brief to an appeals court in the case of Jeffrey A. Sterling, a former CIA officer who is accused of leaking classified information to author James Risen, on January 13, 2012, according to a proposed briefing schedule that was filed yesterday.

The prosecution of Sterling has been suspended in lower court while the government appeals several court rulings that it considers unfavorable.

Specifically, the government wants to overturn the court’s finding that Mr. Risen is protected by a “reporter’s privilege” and cannot be compelled to identify his source.  Prosecutors also want to reverse what they described as an order relating to the Classified Information Procedures Act (CIPA) that the identity of certain government witnesses must be disclosed to the defendant and the jury.  Finally, they are appealing an order that eliminated two potential government witnesses because prosecutors failed to disclose adverse information about the witnesses in a timely manner, a November 9 docketing statement said.

Interestingly, defense attorneys deny that the second issue involving disclosure of witness identities is a CIPA issue that can be appealed at this stage.  They point out that “No order has been entered by the District Court allowing the defendant, over the Government’s objection, to disclose any classified information.  No sanctions have been imposed upon the Government for refusing to allow for the disclosure of any classified information by the defendant in any manner.”  Therefore, “Mr. Sterling does not agree that this appeal raises any issues appealable under CIPA.”

It was also announced yesterday that the case of Army Private Bradley Manning, the suspected WikiLeaks source, will proceed to what is called an Article 32 hearing on December 16 at Fort Meade, Maryland.

“The primary purpose of the Article 32 hearing is to evaluate the relative strengths and weaknesses of the government’s case as well as to provide the defense with an opportunity to obtain pretrial discovery,” according to Private Manning’s attorney, David E. Coombs. “The defense is entitled to call witnesses during the hearing and to also cross examine the government’s witnesses.”

The other ongoing leak prosecution under the Espionage Act is that of former State Department contractor Stephen Kim, who is accused of leaking classified information to Fox News reporter James Rosen.  The prosecution of Mr. Kim is still in an early stage of pre-trial discovery, according to a November 15 status report.

CRS Views U.S. Response to Lord’s Resistance Army

The U.S. government response to the Lord’s Resistance Army (LRA), a brutal paramilitary group in Uganda, is discussed in a new report from the Congressional Research Service.

The Obama Administration has provided humanitarian and operational support to Ugandan efforts to counter the LRA.  Most recently, the U.S. has authorized the deployment of U.S. military advisers to assist the Ugandan military in the anti-LRA campaign.

“The U.S. approach to the LRA raises a number of issues for policymakers, some of which could have implications far beyond central Africa,” the CRS report said. “A key question, for some, is whether the response is commensurate with the level of threat the LRA poses to U.S. interests, and whether the deployment of U.S. military personnel could lead to unintended consequences. More broadly, decisions on this issue could potentially be viewed as a precedent for U.S. responses to similar situations in the future.”

A copy of the new report was obtained by Secrecy News.  See “The Lord’s Resistance Army: The U.S. Response,” November 21, 2011.

JASON Advisory Group Holds Fall Meeting

The JASON defense advisory panel held its fall meeting last weekend with briefings on a range of national security topics.  A copy of the program from the closed meeting is posted here.

The JASONs completed at least seven studies this year for various government agencies with titles such as “Solar EMP” and “Domestic Nuclear Surge Operations.”  Secrecy News has requested review of those studies for public release.

Targeting Criminal Aliens, and More from CRS

U.S. government programs to identify and deport criminal aliens were detailed in an exhaustive report (pdf) from the Congressional Research Service.

The Department of Homeland Security has four programs that deal with criminal aliens, which are discussed in the report.

“While consensus exists on the overarching goal to identify and remove serious criminal aliens, these programs have generated controversy,” CRS said, on grounds that “the programs may have adverse impacts on police-community relations, may result in racial profiling, and may result in the detention of people who have not been convicted of criminal offenses and may not be subject to removal.”

CRS estimated that the number of noncitizens incarcerated in federal and state prisons and local jails – “a subset of all criminal aliens” – was 173,000 in 2009.

See “Interior Immigration Enforcement: Programs Targeting Criminal Aliens,” October 21, 2011.

The New York Times reported today that DHS “will begin a review on Thursday of all deportation cases before the immigration courts… with the goal of speeding deportations of convicted criminals and halting those of many illegal immigrants with no criminal record.”  See “U.S. to Review Cases Seeking Deportations” by Julia Preston, New York Times, November 17.

Some other new Congressional Research Service reports obtained by Secrecy News are linked below (all pdf).  Pursuant to congressional policy, CRS has been prohibited from making them directly available to the public.

“Military Retirement Reform: A Review of Proposals and Options for Congress,” November 17, 2011

“FY2012 Appropriations Overview: Status of Discretionary Appropriations Legislation,” November 10, 2011

“U.S. Natural Gas Exports: New Opportunities, Uncertain Outcomes,” November 4, 2011

“Legislative Branch Agency Appointments: History, Processes, and Recent Proposals,” November 1, 2011

“Economic Growth and the Unemployment Rate,” October 28, 2011

“Presidential Policy Directive 8 and the National Preparedness System: Background and Issues for Congress,”
October 21, 2011

Declassification of Intelligence Satellite Imagery Stalled

The eagerly awaited declassification of vast amounts of historical intelligence satellite imagery that was supposed to occur this year did not take place, and it is unknown when or if it might go forward.

Earlier this year, government officials had all but promised that the declassification and release of miles of satellite imagery film was imminent.

“The NGA [National Geospatial-Intelligence Agency] is anticipating the potential declassification of significant amounts of film-based imagery… in 2011,” the Agency stated in a solicitation that was published in Federal Business Opportunities on February 14, 2011.  (“Large Release of Intelligence Imagery Foreseen,” Secrecy News, February 28, 2011).

“Almost all” of the historical intelligence imagery from the KH-9 satellite (1971-1986) should be declassified within a few months, said Douglas G. Richards of the Pentagon’s Joint Staff at an August 23, 2011 public forum of the National Declassification Center.

But it didn’t happen.  Why not?

“I have no additional information to provide you concerning the status of this declassification effort,” said Mr. Richards by email this week.  “The Joint Staff completed its participation with the action a few months ago, consequently, I don’t know its current status.  Recommend contacting NGA for additional information.”

An NGA spokesman said that the Agency is still weighing the issue and that it will eventually make a recommendation to the Director of National Intelligence on how to proceed.  But it has not yet done so, and there is no particular deadline for it to reach a conclusion on the issue.

“The Director of National Intelligence (DNI) has requested that NGA review the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings for the purpose of making a recommendation to the DNI for possible declassification,” said NGA public release officer Paul R. Polk in a November 10 email message to Prof. Chris Simpson of American University.

“At this time, NGA is conducting an ongoing review of the materials and will make its recommendations to the DNI once the evaluations are completed.”

“If the DNI decides to declassify the subject imagery (or portions thereof), NGA will then need to develop a systematic method for transitioning the holdings over to the National Archives and Records Administration (NARA) for the purpose of making these records available to the general public.”

“In short, NGA cannot at this time advise as to what portions of the KH-8 GAMBIT and KH-9 HEXAGON imagery holdings will be declassified by the DNI, or when they may be available for purchase from NARA,” wrote Mr. Polk in his message to Prof. Simpson.

It is difficult to discern what is going on behind the scenes here.  One official suggested that the public announcements of impending declassification may have had the unintended effect of triggering latent opposition to the move and preventing its implementation.

There is a history of contention over imagery declassification dating back to President Clinton’s 1995 executive order 12951, which declassified imagery from the Corona, Argon and Lanyard intelligence reconnaissance programs.

The Clinton order was a historic development in intelligence policy that was enthusiastically welcomed by scientists, environmentalists and many others at the time.  But it also contained some problematic language that made subsequent declassification action more difficult than it would have been otherwise.  The order stated that intelligence imagery from satellite programs other than Corona, Argon and Lanyard “shall be kept secret… until deemed otherwise by the Director of Central Intelligence.”

Intelligence officials seized upon this language to argue that satellite imagery had been “carved out” of the normal procedures for automatic and systematic declassification.  They insisted that any future release of such imagery was exclusively within the discretion of the DCI (later the DNI), who simply declined to exercise that discretion.

A compelling counterargument can be made that this Clinton order language (or this interpretation of the language) was superseded by later executive orders, including EO 13526, which stated that “no information may be excluded from declassification… based solely on the type of document or record in which it is found” (sect. 3.1g).

But although the debate might have been won in theory, it has been effectively lost in practice.  Contrary to prior official statements, there will be no further declassification of historical satellite imagery in 2011, and no one can say when it might resume.

Pre-Publication Review as a Secrecy Battleground

The Obama Administration’s uncompromising approach to punishing “leaks” of classified information has been widely noted.  But its handling of pre-publication review disputes with former intelligence agency employees who seek to publish their work has been no less combative.

Government prosecutors are preparing to confiscate proceeds from the unauthorized publication of “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” by the pseudonymous Ishmael Jones, a former CIA officer.  After Jones published the book without the permission of CIA reviewers, the government said that he was in violation of the secrecy agreement he had signed.

Jones argued that he had not published any classified information and that CIA had breached the agreement first by failing to review his manuscript in good faith.  But his efforts were unavailing, and a court concurred with the CIA.

“All discovery demands heretofore served by defendant [Jones] are quashed, and defendant is prohibited from serving other discovery demands,” ruled Magistrate Judge Thomas Rawls Jones, Jr. in favor of the CIA on November 4.

If Jones believed that CIA was wrongly obstructing publication of his work, prosecutors said, what he should have done “was to file suit in U.S. District Court challenging the Agency’s decision, in order to obtain permission to publish the book.”

That sounds reasonable enough.  But in another case where an author did exactly that, government attorneys are making it all but impossible for the author to present his argument to a judge.

Anthony Shaffer, author of the Afghanistan war memoir “Operation Dark Heart,” said that intelligence agencies had unlawfully violated his First Amendment rights by censoring his manuscript.  But the government wants to limit his ability to present his challenge.

For one thing, Shaffer has been denied access to the original text of his own book.  The text contains classified information, the government says, and he no longer holds a security clearance.  So he is out of luck.  Nor has the government allowed him use of a secure computer so that he could cite contested portions of the text and dispute their classification in pleadings submitted to the court.

Instead, the government argues that the Court should resolve the disagreement based on the materials provided by the government, along with any unclassified materials that may be submitted by the plaintiff [Mr. Shaffer].  Shaffer does not need his manuscript or a secure computer, since “it is improper and unnecessary for Plaintiff to submit classified information to the Court at this time.”  (Joint Status Report, July 22, 2011).

Even unclassified materials that Mr. Shaffer may wish to submit in a declaration to the court — in order to demonstrate that the supposedly classified information in his original text is already public — may need to be sealed from public disclosure, the government said on October 28.  That is because “the association of that open source information with the book’s redactions may make the [author's] declaration classified.”

All of this is quite absurd, said Mark S. Zaid, Mr. Shaffer’s attorney, in a reply filed last week.

“There is no other way for Shaffer to identify and challenge any of the specific text purported to be classified, much less present an argument to the Court, if he does not have access to the original copy of his book,” Mr. Zaid wrote.

The upshot is that under current policy neither Mr. Jones, who defied the rules, nor Mr. Shaffer, who has attempted to follow them, is permitted to gain a meaningful independent review of government restrictions on the information he sought to publish.

There is an additional layer of absurdity in Mr. Shaffer’s case, since the unredacted text of his book has been publicly released in limited numbers, and portions of it are even available online.  (“Behind the Censorship of Operation Dark Heart,” Secrecy News, September 29, 2010).