Posts from February, 2012

There is No Reporter’s Privilege, Leak Prosecutors Insist

“There is no ‘reporter’s privilege’ that shields the identity of confidential sources in good-faith criminal proceedings,” prosecutors reiterated in a new pre-trial brief in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information to author and New York Times reporter James Risen.  Consequently, they said, Mr. Risen should not be permitted to invoke such a privilege to shield his source.

“Risen and his amici simply do not accept that Branzburg [the 1972 Supreme Court case that appeared to preclude a reporter's privilege in criminal cases] is the law,” prosecutors told the Fourth Circuit Appeals Court in their February 28 reply brief.  “Instead, they largely ignore the majority opinion in that case and rely on other sources to construct a constitutional or common law privilege.  Their arguments are not persuasive and should be rejected.”

“Contrary to Risen’s claim, the ‘newsworthiness’ of the information has no bearing on whether he should be required to disclose his source,” prosecutors wrote.  “The ‘newsworthiness’ of the information is irrelevant to whether Sterling committed a crime, and it is irrelevant to whether Risen, like any other citizen, must testify concerning his knowledge of that crime.”  (Risen’s brief in support of upholding a reporter’s privilege is here; an amicus brief filed by news media organizations is here.)

In a February 14 defense pleading that was redacted and unsealed this week, the Sterling defense team wrote that “Mr. Sterling takes no position on whether a ‘reporter’s privilege’ exists and, if so, whether Mr. Risen would have been entitled to invoke the privilege at trial.”

But the defense added that the urgency of the prosecution’s demand for Mr. Risen’s testimony “serves to highlight the evidentiary gaps in its case against Mr. Sterling. Indeed, the Government concedes that without Mr. Risen’s testimony, it cannot even establish venue [i.e. where the alleged crime took place].”

“The Government proffers that Mr. Risen is ‘the only eyewitness to the crime and the only person who could identify Sterling as the perpetrator.’ This statement merely summarizes the Government’s aspirations as to what Mr. Risen might say. The Court must be careful to avoid believing that there is any basis in the record for this or the many other statements or claims the Government attributes to Mr. Risen and testimony that has never been provided.”

In short, the defense response said, “while Mr. Sterling takes no position on the privilege or First Amendment issues posed by this case, the record is clear that the Government is speculating about Mr. Risen’s anticipated testimony in a vain attempt to fill a gaping evidentiary void that has existed throughout its investigation and attempted prosecution of its case against Mr. Sterling.”

Both parties also disputed the other issues on appeal, including whether two government witnesses were properly struck by the trial court, and whether the identities of two covert witnesses should be revealed to the defense and the jury at trial, as the lower court ordered.

Oral argument before the Fourth Circuit Court of Appeals is tentatively scheduled for mid-May.

Army: Recovery of Captured Journalists Poses “Challenges”

A recently updated U.S. Army doctrinal manual on recovery of U.S. military personnel who are captured by enemy forces — which is considered “one of the highest priorities of the United States Government” — includes a new section on the recovery of journalists who have been kidnapped or detained abroad.

“International journalists risk jail, kidnapping, or death in the course of their profession, particularly in areas of conflict,” the manual observes. “The danger is not just to the journalists themselves, but also to their staffs and families. The dangers and the risk of isolation become acute in areas with persistent conflict, such as parts of Latin America and Asia. As joint and Army forces conduct global operations, they encounter members of the news media.”

“While not responsible for the protection and security for any except those embedded with military units and organizations, in some situations Army forces conduct operations to recover journalists designated by U.S. authorities. Recovery of journalists provides challenges for joint and Army forces.”

“Journalists often have little training in survival, evasion, resistance, and escape techniques. Even those working for large media conglomerates may have had limited training, such as briefings or informal orientations on how to avoid being a target. Their organizations may learn of their capture only when the hostage-takers issue a ransom demand. Some news organizations employ private security details, but  it is common for hostage-takers to simply overpower the security force and take the journalist, usually with dire consequences for locally hired staff.”

“Occasionally a journalist or media organization will collaborate with U.S. forces for protection. This is never more than an arrangement of personal security. Sections 403 to 407 of Title 50, USC, prohibit anyone with United States or foreign press credentials from formally collecting information or intelligence for U.S. forces. This same section does permit voluntary cooperation if the individual journalists realize that they are providing information to a U.S. intelligence entity. Journalists are never a part of the military forces, but they can be part of the information network. Journalists generally understand the local situation and can volunteer information, including information on their colleagues who are isolated or held hostage.”

“Army forces sometimes allow news media representatives to embed, from field Army to platoon level. [...] By definition, embedded journalists become a part of the Army units to which temporarily assigned. They are therefore under the force protection umbrella, including personnel recovery.”  See “Army Personnel Recovery,” Field Manual 3-50.1, November 2011 (sections 4-52 to 4-58).

The previous edition of FM 3-50.1, dated August 2005, did not address the recovery of captured journalists.

The Depreciating Dollar, and More from CRS

New or updated reports from the Congressional Research Service include the following.

The Depreciating Dollar:  Economic Effects and Policy Response, February 23, 2012

Monetary Policy and the Federal Reserve: Current Policy and Conditions, January 30, 2012

Evaluating the Current Stance of Monetary Policy Using a Taylor Rule, January 30, 2012

Who Earns Pass-Through Business Income? An Analysis of Individual Tax Return Data, February 16, 2012

Taiwan: Major U.S. Arms Sales Since 1990, February 24, 2012

Changes in the Arctic: Background and Issues for Congress, February 27, 2012

Energy Projects on Federal Lands:  Leasing and Authorization, February 1, 2012

Financial Performance of the Major Oil Companies, 2007-2011, February 17, 2012

DoD Issues New Information Security Regulation

The Department of Defense has published its long-awaited new information security regulation that finally brings the Department into conformity with the Obama Administration’s 2009 executive order on national security classification policy.

The new regulation, published in four volumes as DoD Manual 5200.01 and dated 24 February 2012, replaces Information Security Regulation 5200.1-R, which dates from 1997.

DoD is by far the largest and most prolific generator of classified information in the government.  So every shift in DoD information policy (as well as every failure to shift) has significant ramifications for the secrecy system as a whole.

The new regulation generally follows the classification guidelines set by the Obama executive order but it also elaborates on them in interesting ways.  It presents comprehensive guidance on practically every aspect of classification and declassification policy, including an extended discussion of how to respond to unauthorized disclosures of classified information (in volume 3, Enclosure 6).

Other notable provisions in the first volume of the new regulation include the following.

“If holders of information have substantial reason to believe that the information is improperly or unnecessarily classified, they shall communicate that belief to their security manager or the OCA [original classification authority] to bring about any necessary correction….  The Heads of the DoD Components shall ensure that no retribution is taken against any individual for questioning a classification or making a formal challenge to a classification.” (Vol. 1, p. 49)

Each DoD component is required to establish a self-inspection program, which “shall include regular review and assessment of representative samples of the DoD Component’s classified products. Appropriate officials shall be authorized to correct misclassification of information.” (p. 13)

The Assistant Secretary of Defense (NII) shall “Direct the use of technical means to prevent unauthorized copying of classified data and for anomaly detection to recognize unusual patterns of accessing, handling, downloading, and removal of digital classified information.” (p. 12)

“DoD military and civilian personnel may be subject to criminal or administrative sanctions if they knowingly, willfully, or negligently:
(a) Disclose to unauthorized persons information properly classified in accordance with this Volume.
(b) Classify or continue the classification of information in violation of this Volume.
(c) Create or continue a SAP [special access program] contrary to the requirements of… this Volume….”  (p.32)

The Fundamental Classification Guidance Review, which was mandated by the executive order to eliminate obsolete classification instructions, shall encompass “a broad range of perspectives,” the new regulation states. The involvement of outside experts is essential, the regulation seems to recognize, in order to compensate for self-interest, prejudice, and habitual patterns of thought.  “Contributions of subject matter experts with sufficient expertise in narrow specializations must be balanced by the participation of managers and planners who have broader organizational vision and relationships. Additionally, to the extent practicable, input should also be obtained from external subject matter experts and external users of the classification guidance.”  (p. 73)

The new regulation is effective immediately.

A February 16 report from DoD on the Fundamental Classification Guidance Review indicated that of the 1069 security classification guides that had been reviewed by the end of December 2011, no fewer than 318 guides had been scheduled for retirement or cancellation.  (“DoD Reports ‘Impressive Strides’ in Updating Classification,” Secrecy News, February 22.)

DoD Responds to Questions on Nuclear Targeting

Are U.S. nuclear forces on “hair trigger” alert?  Not exactly, a Department of Defense official told Congress recently.

“Although it is true that portions of the U.S. nuclear triad are capable of rapid execution upon authorization from the President, a robust system of safeguards and procedures is in place to prevent the accidental or unauthorized launch of a U.S. nuclear weapon,” said James N. Miller, Jr., Principal Deputy Under Secretary of Defense for Policy, in newly published responses to questions for the record from a May 2011 hearing.

Moreover, he added, “The United States continues the practice of open-ocean targeting of all ICBMs and SLBMs. This is so that in the highly unlikely event of an unauthorized or accidental launch, the missile would land in the open ocean.”

The newly published hearing volume presented an unusually candid public discussion of nuclear weapons force structure and the process for revising it.

“Generally, three high-level documents provide overall policy guidance regarding U.S. nuclear weapons,” explained Dr. Miller in response to another question for the record.

“Presidential guidance provides high-level direction on our nuclear deterrence strategy, employment/targeting policy, and force posture. I anticipate that President Obama will issue new presidential guidance later this year [2011] that incorporates many of the policy decisions reached during the NPR [Nuclear Posture Review],” he said.  (In fact, however, such new presidential guidance has still not been issued, noted Hans Kristensen of FAS.)

“The Secretary of Defense provides additional guidance in a document known as the Policy Guidance for the Employment of Nuclear Weapons (NUWEP) that implements and amplifies presidential guidance. The NUWEP is an annex to DOD’s Guidance for Employment of the Force. The current NUWEP was issued in 2008. It will be revised by the Office of the Under Secretary of Defense for Policy in close coordination with the Joint Staff, U.S. Strategic Command (STRATCOM), the military departments, and other combatant commands following the issuance of the new Presidential guidance, and provided for approval by the Secretary of Defense.”

“The Chairman of the Joint Chiefs of Staff also issues a document known as the Nuclear Supplement to the Joint Strategic Capabilities Plan (JSCP-N), which provides additional direction to military planners regarding the preparation of contingency plans for potential employment of U.S. nuclear weapons. The current JSCP-N was issued in 2004 and will be revised after the issuance of new presidential guidance and the NUWEP,” Dr. Miller wrote.

See “Implementation of the New Strategic Arms Reduction Treaty (START) and Plans for Future Reductions in Nuclear Warheads and Delivery Systems Post-New START Treaty,” Senate Armed Services Committee, May 4, 2011 (published January 2012).

And see, relatedly, U.S. Strategic Nuclear Forces: Background, Developments, and Issues, Congressional Research Service, February 22, 2012.

DoD Reports “Impressive Strides” in Updating Classification

The Department of Defense said it has cancelled more than 300 of its 1800 classification guides as a result of the ongoing Fundamental Classification Guidance Review.  The defunct guides can no longer be used to authorize the classification of national security information.

“The Department has continued to make impressive strides in updating our Security Classification Guides (SCGs) and remains focused on ensuring that guidance reflects current operational and technical circumstances relevant to the protection of properly classified information,” DoD told the Information Security Oversight Office in a February 16, 2012 interim report.

“As a result, through the period of this report, approximately 17.7% of DoD’s non-compartmented SCGs have either been eliminated or identified for retirement,” the DoD report said.  (Non-compartmented SCGs do not include classification guidance for DoD special access programs or compartmented intelligence programs, which are being reviewed separately.)

The Fundamental Classification Guidance Review was mandated by President Obama’s 2009 executive order 13526 in order to identify and eliminate inappropriate classification requirements.  It is the Administration’s primary mechanism for combating overclassification.

Most of the newly cancelled guides (237 of them) originated with the Navy, which also has the largest number of guides (820).  The Army eliminated 21 guides out of 363, and the Air Force eliminated 27 out of 283.

The significance of the cancellations is hard to gauge, especially since the cancelled guides are not identified in the new interim report to ISOO.  In some cases, their elimination may make no practical difference since they were no longer in use anyway.  In other cases, the cancellations may reflect an updated consensus concerning the sensitivity of the information.

Collectively, the elimination of hundreds of classification guides will help to clear away much of the accumulated detritus of the national security secrecy system.  It will increase the clarity of classification policy, and reduce some of its arbitrariness.

If the Fundamental Review had reduced the inventory of classification requirements by five percent, it would have been worthwhile.  Remarkably, it now appears that that goal will be surpassed a few times over.

In its own interim report to ISOO, the Office of the Director of National Intelligence said that 2 security classification guides out of ODNI’s total of 29 had been eliminated by December 31 as the result of the Fundamental Classification Guidance Review.

Media Orgs File Amicus Brief in Sterling Leak Case

Dozens of major news media organizations joined together to defend the notion of a reporter’s privilege to protect the identity of a confidential against compulsory disclosure.

The organizations filed an amicus curiae brief in support of New York Times reporter James Risen, who has been subpoenaed to testify in the case of Jeffrey Sterling, the former CIA officer who is accused of leaking classified information to Mr. Risen.  The case is currently on pre-trial appeal before the Fourth Circuit Court of Appeals.

“All amici are engaged in or support the dissemination of news and information to the public, at times through the use of confidential sources,” the amicus brief stated. “Amici are concerned that if this Court adopts the Government’s unprecedented position– that journalists do not possess a qualified privilege that protects them against the compelled disclosure of confidential sources in criminal trials– their ability to report on matters of substantial public concern will be significantly impaired.”

The brief cited important news stories that were based in part on unauthorized disclosures of classified information.

“In many of these instances, although the source may arguably have violated a legal duty by providing such information to a journalist in the first instance, the subsequent reporting inevitably led to the discovery and prosecution of much more serious crimes. Amici respectfully submit that an inventory of those crimes that have gone unpunished because a journalist was permitted to protect a source would be a very short list indeed, and would pale in comparison to the number of significant criminal prosecutions made possible directly as a result of news reports containing information gleaned from confidential sources,” the brief stated.

The brief is an emphatic chorus of support for Mr. Risen, and it offers a clear statement that the public interest in a free press is at stake in this case.

One thing it does not do, however, is simplify the matter for the appeals court or help to devise some kind of resolution of the conflict between the parties.

Interestingly, Mr. Risen’s own brief was more accommodating.  It even suggested the possibility of “bad leaks” that were undeserving of privileged protection.  A case-by-case public interest analysis could be conducted to distinguish between good and bad leaks, the February 14 brief proposed.

Such an analysis “is the most direct way to protect journalism based on leaks that cause more good than harm. It also provides a basis to force the privilege to yield for leaks that cause more harm than good.”

In this case a public interest analysis would vindicate Mr. Risen, his attorney wrote.

(More coverage from Politico, NYT.)

Characteristics of Members of Congress, and More from CRS

New and updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

Representatives and Senators: Trends in Member Characteristics Since 1945, February 17, 2012

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, February 21, 2012

F-35 Joint Strike Fighter (JSF) Program: Background and Issues for Congress, February 16, 2012

War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution, February 17, 2012

Bahrain: Reform, Security, and U.S. Policy, February 21, 2012

Pentagon Defends Record on Secrecy Reform

The Department of Defense has done a better job of complying with changes in national security classification policy than it has gotten credit for, Pentagon officials told a Senate Committee.  The number of classification guides that are up to date has increased from 30% to over 70%, the officials said, and a new four-volume information security guide that has been under development since 2009 is in final coordination.

In response to a question for the record in a newly published hearing volume, the Pentagon officials — Mr. Thomas Ferguson and Ms. Teresa Takai — criticized an article in Secrecy News that was published a year ago.

Secrecy News had reported that (a) there was a presidentially-mandated deadline for agencies to update their regulations to implement the President’s executive order on classification;  (b) the Department of Defense missed the deadline;  and (c) DoD components such as U.S. Transportation Command were therefore not implementing the requirements of the executive order.  Each of these points was documented with citations to official sources.  (“Secrecy Reform Stymied by the Pentagon,” Secrecy News, February 24, 2011.)

But Mr. Ferguson and Ms. Takai said the Secrecy News article “is inaccurate on a number of counts, and Mr. Aftergood did not consult with the DoD office responsible for updating this issuance.”

The Pentagon officials did not dispute that there was a deadline, or that DoD had missed the deadline.

“We notified the Information Security Oversight Office (ISOO) that DoD would not be able to reissue the policy [i.e. the new implementing regulations] in the timeframe allowed;  however, ISOO and the National Security Staff denied the DoD request to extend the deadline established in the Executive Order (E.O.) 13526 and its implementing directive,” they wrote.

However, they said, “In October 2010, we sent formal notification to all DoD components reminding them of their obligation to comply with the E.O. as well as with the President’s [accompanying] memo.  We also initiated a DoD wide update of classification guidance.”

This leaves unexplained how it was that in February 2011, the U.S. Transportation Command (among others) said it had no record of a requirement to conduct a Fundamental Classification Guidance Review, as specified in the executive order, and no evidence of any compliance with it.

Regarding the Fundamental Classification Guidance Review, the DoD officials said that “ISOO and Mr. Aftergood may not understand the enormity of such an undertaking for DoD.  DoD has more classification guidance than any other agency or Department by several orders of magnitude.  The limited resources available for conducting such a review are already over-tasked by several new initiatives and activities resulting from the EO as well as other circumstances such as the WikiLeaks disclosure.”

Mr. Ferguson and Ms. Takai might have added that the President of the United States also “may not understand” the enormity of the task facing DoD, since it was he who personally set the deadline that DoD failed to meet.  Alternatively, perhaps DoD may not recognize the urgency of restoring integrity and public confidence to classification policy.

“Regardless,” they wrote, “the Department has made solid strides forward in implementing the national policy contrary to Mr. Aftergood’s assertions.”

On balance, what appears to be true is both that DoD got a late start in complying with the executive order, and also that it made progress once it got underway.

It was not until May 2011 that Under Secretary of Defense (Intelligence) Michael G. Vickers wrote to DoD agency heads and department officials instructing them to “begin this effort [the Fundamental Classification Guidance Review] immediately…. We cannot afford to expend resources on protecting information that no longer meets the criteria for classification.”

By the time of its first interim report on the Fundamental Review in July 2011, DoD said it had cancelled 82 classification guides.  (“Fundamental Review Yields Reduction in Scope of Secrecy,” Secrecy News, October 3, 2011.)

Portions of the 2009 Obama executive order 13526 were reflected in a June 13, 2011 update of DoD Instruction 5200.01 on information security.  However, the full DoD information security regulation implementing the executive order has still not been published.

The remarks of Mr. Ferguson and Ms. Takai were included among other interesting responses to questions for the record in a newly published hearing volume from a March 10, 2011 hearing of the Senate Homeland Security and Governmental Affairs Committee on “Information Sharing in the Era of WikiLeaks: Balancing Security and Cooperation.”

Post-WikiLeaks Network Monitoring Takes Shape

The heightened surveillance of classified government information networks that was a predictable response to the unauthorized disclosures published by WikiLeaks is becoming more clearly discernible.

“USSTRATCOM/USCYBERCOM is monitoring use of the SIPRNet and now has a mechanism for reporting certain anomalous behaviors for appropriate remediation,” said Thomas A. Ferguson, Deputy Under Secretary of Defense (Intelligence) and Teresa Takai, DoD Chief Information Officer.

“We have established the first formal security oversight and assessment program to determine levels of compliance” with rules of access to classified networks,” they said in response to questions for the record from a March 10, 2011 hearing of the Senate Homeland Security and Governmental Affairs Committee on “Information Sharing in the Era of WikiLeaks.”

“Simply understanding that we have this monitoring capability creates deterrence of willful mischief,” they added.

“We will improve our ability to individually track users through enforcement of strong user authentication on classified networks, ensure responsible controls on removable media, and provide strong website authentication for classified fabrics — all to provide greater control over access to classified information,” wrote Corin R. Stone of the Office of the Director of National Intelligence in her own answers to questions for the record from the same hearing.

“The FBI and CIA have robust insider threat programs in place for tracking the specific information accessed by users of their systems and detecting, to varying degrees, suspicious user behavior (e.g., excessive file accesses or data downloads) and alerting security personnel to take action.  Several agencies (e.g., NGA, NSA, NRO) are maturing their audit and insider threat capabilities, while others still lag behind,” Ms. Stone wrote.

“The WikiLeaks disclosures highlighted the need to ‘raise the bar’ in terms of these capabilities,” she wrote.

In testimony before the Senate Armed Services Committee last week, Defense Intelligence Agency director Lt. Gen. Ronald L. Burgess said that “The potential for trusted US Government and contractor insiders using their authorized access to personnel, facilities, information, equipment, networks or information systems in order to cause great harm is becoming an increasingly serious threat to national security.”