Posts from January, 2012

Foreign Military Assistance, and More from CRS

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

Security Assistance Reform: “Section 1206″ Background and Issues for Congress, January 13, 2012

The Berry Amendment: Requiring Defense Procurement To Come From Domestic Sources, January 13, 2012

In Brief: Assessing DOD’s New Strategic Guidance, January 12, 2012

Circular A-76 and the Moratorium on DOD Competitions: Background and Issues for Congress, January 17, 2012

The Federal Networking and Information Technology Research and Development Program: Background, Funding and Activities, January 13, 2012

Nuclear Power Plant Design and Seismic Safety Considerations, January 12, 2012

Chemical Facility Security: Issues and Options for the 112th Congress, January 13, 2012

Dept of Energy Wants to Reclassify Some Info as “Restricted Data”

The Department of Energy has asked Congress to amend the Atomic Energy Act to allow certain nuclear weapons information that has been removed from the “Restricted Data” classification category to be restored to that category.

“Restricted Data” (RD) pertains to classified nuclear weapons design information.  It is distinguished from “Formerly Restricted Data” (FRD) which generally concerns the utilization of nuclear weapons.  (Despite the use of the word “formerly,” FRD is also a category of classified information.)

In a letter to Congress requesting the proposed amendment, Energy Secretary Steven Chu suggested that the current arrangement leaves some nuclear weapons design information inadequately protected.

“There is sensitive nuclear weapons design information embodied in some FRD… that should be subject to the more stringent security protections afforded RD now than current programmatic capabilities of DoD and the Intelligence Community permit,” Secretary Chu wrote in an August 4, 2011 letter that was released last week.  Energy Department officials did not respond to a request from Secrecy News for elaboration on this point.

But in a July 2010 statement to the Public Interest Declassification Board, Andrew Weston-Dawkes of the Department of Energy Office of Classification said that FRD today contains not only information on nuclear weapons utilization but also “some of the most sensitive design information.”  Specifically, he said that FRD includes design information on “safing arming and fuzing, use control information, [and] hardening.”

Such design information was removed from the RD category in order “to support the mission requirements of the Department of Defense and the Intelligence Community,” Secretary Chu explained in his letter.  But once removed, the information by law cannot be redesignated as RD without an amendment to the Atomic Energy Act.  Hence the DOE proposal to Congress.

The immediate implications of the proposal are probably quite limited, particularly since it applies only to “design information” and “foreign nuclear information” that is currently classified in any case (albeit as FRD or “TFNI,” for Transclassified Foreign Nuclear Information).

In the longer term, the authority to reclassify certain narrow categories of FRD as RD, if granted, may help to reduce DOE opposition to the elimination of the entire FRD category — which critics including the Federation of American Scientists have advocated — and its integration into the normal national security classification system.

The Public Interest Declassification Board, an advisory body on classification and declassification policy, has proposed that FRD records that are more than 25 years old should be treated like any other classified records for purposes of declassification review and processing.

But these changes would also require legislative action, which has not been requested by DOE.  Nor has Congress acted on Secretary Chu’s August 2011 proposal to date.

*       *       *

On January 10, the White House announced the appointment of Amb. Nancy E. Soderberg as chair of the Public Interest Declassification Board and the re-appointment of Elizabeth Rindskopf Parker as a member of the Board.

“Restricted Data” is the name of an informative new blog written by historian Alex Wellerstein “about nuclear secrecy, past and present.”  It often features fascinating archival discoveries along with the author’s historical insights.

“Born Secret” by Alexander DeVolpi, et al, is a thoughtful and meticulous account of the 1979 “Progressive” case in which the U.S. government sought to prevent the publication of H-Bomb design information gathered by researcher Howard Morland.  It has recently been reissued as an e-book.

Detainee Policy, and More from CRS

Recent legislative action on military detention of suspected enemy combatants perpetuates an ambiguity in the law as to whether U.S. citizens may be so detained, a new report from the Congressional Research Service says.

“The circumstances in which a U.S. citizen or other person captured or arrested in the United States may be detained under the authority conferred by the AUMF [the post-9/11 Authorization for Use of Military Force] remains unsettled,” wrote CRS analyst Jennifer Elsea.  “The 2012 NDAA [National Defense Authorization Act] does not disturb the state of the law in this regard.”

“Section 1021 [of the NDAA] does not attempt to clarify the circumstances in which a U.S. citizen, resident alien, or other person captured within the United States may be held as an enemy belligerent in the conflict with Al Qaeda. Consequently, if the executive branch decides to hold such a person under the detention authority affirmed in Section 1021, it is left to the courts to decide whether Congress meant to authorize such detention when it enacted the AUMF in 2001,” the CRS report said.  See The National Defense Authorization Act for FY2012: Detainee Matters, January 11, 2012.

Some other new CRS reports that have not been made readily available to the public include these:

F-35 Alternate Engine Program: Background and Issues for Congress, January 10, 2011

Horn of Africa Region: The Humanitarian Crisis and International Response, January 6, 2012

Building Civilian Interagency Capacity for Missions Abroad: Key Proposals and Issues for Congress, December 22, 2011

Testimony of Reporter Sought in Sterling Leak Case

In a brief filed Friday in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information, prosecutors told the U.S. Court of Appeals that New York Times reporter James Risen should be compelled to testify at Mr. Sterling’s trial and to reveal whether it was Mr. Sterling who leaked information to him about a CIA program to disrupt Iran’s nuclear weapons program.

A lower court found that Mr. Risen had a “qualified reporter’s privilege” which exempted him from disclosing his sources in this case.  But prosecutors said the lower court ruling was in error and they asked the Appeals Court to overturn it. They said that unlike in certain civil cases, there is no reporter’s privilege to protect confidential sources in criminal cases.

Here, however, the disclosure of classified information is the alleged crime. As a consequence, what is at stake in this case, beyond the individual fate of Mr. Sterling, is the ability of reporters to protect their sources of classified information.  The Appeals Court is poised to either strengthen that ability or to significantly weaken it.

Prosecutors also disputed two other lower court rulings, which they said were “erroneous” and would cripple their case against Mr. Sterling, which has been suspended until the appeal is resolved.

“In three pretrial rulings, the district court severely circumscribed the government’s ability to prove these allegations and effectively terminated the prosecution,” prosecutors wrote in their 99-page pleading on January 13:

“First, the court held that Risen — the only eyewitness to the crime and the only person who could identify Sterling as the perpetrator — had a First Amendment right to refuse to identify his source. This ruling suppressed the only direct evidence of Sterling’s crime.”

“Second, the court suppressed the testimony of two of the government’s key witnesses as a sanction for the late disclosure of alleged Giglio information [i.e. information pertaining to deals or promises made to the witnesses in exchange for their testimony]. The court found no evidence that the disclosure (which occurred less than 12 hours after the expiry of the district court’s discovery deadline and several days before trial) was the result of bad faith, and it never meaningfully considered granting a continuance or any other remedy before striking the witnesses. This decision had the effect of terminating the prosecution.”

“Third, the court announced that the government was required to disclose to the defendant and the jury the true names of several covert CIA officers and contractors who it intended to call to testify at trial. The court reached this conclusion despite having previously held that the government need not identify the witnesses by name in discovery or at trial because that information (which is classified) would not be useful or necessary to Sterling’s defense, could place the witnesses in significant danger, and could damage national security.”

“The district court’s rulings are erroneous. The government respectfully requests that this Court reverse those rulings and remand this case to the district court for trial,” prosecutors wrote.

The new prosecution brief, which was redacted for public release, provides a detailed account of the facts and the law of the Sterling case from the government’s perspective.

The brief says that Mr. Risen himself is not accused of engaging in criminal activity.  “Nonetheless, at Risen’s request, the government has agreed to grant Risen immunity from prosecution in exchange for his testimony, and thus the subpoena raises no Fifth Amendment [self-incrimination] concern,” the brief said.

Attorneys for Sterling and Risen will each respond with their own opening briefs on February 14.

Keystone XL Pipeline Legal Issues, and More from CRS

Some noteworthy new reports from the Congressional Research Service include the following (all pdf):

Legal Issues Associated with the Proposed Keystone XL Pipeline, December 16, 2011

Contemporary Developments in Presidential Elections, January 9, 2012

“Surge Recovery” and Next Steps in the War in Afghanistan: In Brief, January 6, 2011

U.S. Assistance Programs in China, January 6, 2012

Border Security: Immigration Enforcement Between Ports of Entry, January 6, 2011

U.S. Unmanned Aerial Systems, January 3, 2011

Joint Light Tactical Vehicle (JLTV): Background and Issues for Congress, January 3, 2012

Kim Jong-il’s Death: Implications for North Korea’s Stability and U.S. Policy, December 22, 2011

Periods of War, and More from CRS

With the formal ending of the U.S. war in Iraq on December 15, 2011, the Congressional Research Service has produced an updated report on U.S. Periods of War and Dates of Current Conflicts (pdf).

“Confusion can occur because beginning and ending dates for ‘periods of war’ in many nonofficial sources are often different from those given in treaties and other official sources of information, and armistice dates can be confused with termination dates,” the December 28, 2011 CRS report said.

A different kind of confusion can arise when misleading or mistaken information is presented as fact, as when President Bush declared in a May 1, 2003 address to the nation that “major military combat actions in Iraq have ended.”

The CRS report does not address covert action or other unacknowledged military operations.

Some other noteworthy new or newly updated reports from the Congressional Research Service include the following (all pdf).

Director of National Intelligence Statutory Authorities: Status and Proposals,” December 16, 2011

The National Security Council: An Organizational Assessment, December 28, 2011

Terrorism Information Sharing and the Nationwide Suspicious Activity Report Initiative: Background and Issues for Congress, December 28, 2011

The Army’s Ground Combat Vehicle (GCV) and Early Infantry Brigade Combat Team (E-IBCT) Programs: Background and Issues for Congress, December 27, 2011

National Infrastructure Bank: Overview and Current Legislation, December 14, 2011

Drug Offenses: Maximum Fines and Terms of Imprisonment for Violation of the Federal Controlled Substances Act and Related Laws, December 12, 2011

Keystone XL Pipeline Project: Key Issues, December 12, 2011

Recess Appointments: Frequently Asked Questions, December 12, 2011

“Super PACs” in Federal Elections: Overview and Issues for Congress, December 2, 2011

Director of National Intelligence Cut Jobs and Secrets in 2011

In a portent of spending cuts that are still to come, the number of employees at the Office of the Director of National Intelligence (ODNI) dropped significantly over the past year.

Interestingly, one of the first visible signs of the reduction in the workforce was a decline in the level of ODNI classification activity, which dropped by 17.3% from the year before.

“The decrease in total [classification] decisions was largely driven by a 12.9% decrease in population size from last year,” wrote ODNI Information Management chief John F. Hackett in a November 7, 2011 report to the Information Security Oversight Office.  A copy was obtained by Secrecy News under the Freedom of Information Act.

A spokesman for ODNI public affairs said he could not immediately comment on the report, which may reflect a drop in staff as well as contractor personnel, both of which are authorized to generate classified information at ODNI.

A former ODNI official told Secrecy News that “hundreds” of ODNI jobs had been eliminated.  He said that the size of the ODNI workforce was on the order of 2000 people, and that the loss of hundreds of positions was consistent with the reported 12.9% “decrease in population size.”

Growing Income Inequality Examined by CRS

The inequality of income among American taxpayers has grown markedly in recent years, the Congressional Research Service confirmed in a new study of U.S. tax records.

Even as total income grew between 1996 and 2006 (the last year for which individual tax data are available), many Americans were losing ground.

“Inflation-adjusted income actually fell for those in the bottom income quintile (the poorest 20% of tax filers) and almost doubled for the richest 0.1% of tax filers,” the CRS found. “Consequently, income inequality increased between 1996 and 2006.”

The CRS report identified multiple contributors to the growing inequality, including disparate changes in salaries, growth in capital income among high-income taxpayers and modifications of tax policy which exacerbated existing inequalities.

“Earnings inequality has been increasing over the past three decades, and the share of income from capital has increased for high-income tax filers. Furthermore, the 2001 and 2003 Bush tax cuts, while reducing taxes for almost all tax filers, reduced taxes for high-income tax filers to a greater extent than for lower-income tax filers.”

Of these, “Changes in capital gains and dividends were the largest contributor to the increase in the overall income inequality,” the CRS report said. See “Changes in the Distribution of Income Among Tax Filers Between 1996 and 2006: The Role of Labor Income, Capital Income, and Tax Policy,” December 29, 2011.

JASON on Producing Tritium for Fusion Reactors

If nuclear fusion were ever to become a practical method of generating electrical  energy, there would be a continuing requirement to produce significant quantities of tritium for fusion reactor fuel.  The JASON scientific advisory panel was asked by the Department of Energy to assess the feasibility of large scale tritium production.  Its findings were presented in a new report obtained by Secrecy News.  See “Tritium,” November 2011.