Posts from February, 2012

DoD Inspector General Takes on Classification Oversight

In a move that can only strengthen and improve oversight of the national security classification system, the Department of Defense Inspector General has begun a far-reaching review of Pentagon classification policy.

Among other things, the Inspector General review will focus on “efforts by the Department to decrease over-classification.”

In response to the “Reducing Over-classification Act” enacted by Congress in 2010, the IG will “evaluate the policies, procedures, rules, regulations, or management practices that may be contributing to persistent misclassification of material.”  The Act was originally sponsored by Rep. Jane Harman and Sen. Joe Lieberman.

The IG notified the military service secretaries and DoD agency heads of its new classification oversight project in an October 26, 2011 memorandum obtained by Secrecy News.

For years, critics of secrecy policy including the Federation of American Scientists have called for a greater role for inspectors general in classification oversight, to augment the work of the Information Security Oversight Office.  IGs typically offer several advantages:  Since they are part of the executive branch, their involvement in classification policy does not raise thorny separation of powers issues.  Moreover, as resident agency employees, IG investigators are already in place, they already hold all needed security clearances, and they should already be familiar with their agencies’ programs and policies.

Best of all, they are poised to identify defective practices when they discover them.

The FAS Project on Government Secrecy commenced two decades ago with a complaint we submitted to the DoD Inspector General regarding the classification of the Timber Wind nuclear rocket program as an “unacknowledged special access program.”  In its December 16, 1992 response, the IG determined that “the decision to protect the program using special program measures was not adequately justified.”  The IG further found that certain program information was safeguarded “for reasons that were not related to national security.” The Timber Wind program did not survive.

Leaks, National Security, and Freedom of the Press

A new book-length study of leaks of classified information published by the Defense Intelligence Agency’s National Intelligence University contends that “the tension between maintaining national security secrets and the public’s right to know cannot be ‘solved’, but can be better understood and more intelligently managed.”

“Who Watches the Watchmen?” by Gary Ross explores the phenomenon of leaks from multiple angles, including their history, their prevalence and their consequences.  Most interestingly, he considers the diverse motivations of leakers and of the reporters who solicit, receive and publish their disclosures.  Some of these he finds defensible, and others not.

In the end, he advises that government officials should engage members of the media in a constructive dialog in order to avert the worst consequences of leaks.

“Proactively engaging with the media to examine the costs and benefits associated with unauthorized disclosures represents the greatest potential for reducing the perceived harm to national security,” Mr. Ross writes.

By contrast, “Maintaining the status quo or attempting to legislate a solution both have proven to be ineffective methods for resolving the dilemma. True change can only occur if the Executive Branch is willing to invest the time and resources necessary to implement an approach focused on engagement with the media.”

This is a congenial conclusion, which implies that punitive new legislation can be avoided and that remaining differences between reporters and government officials can be fruitfully discussed.

But it arguably misapprehends the harsh new policy landscape in the wake of the WikiLeaks episode (which is also discussed in the book).  The status quo has been transformed in response to WikiLeaks in two ways that are unfavorable to leakers, justified or unjustified.

First, the threat of unauthorized disclosures has been elevated in the view of government officials to one of “the most menacing foreign intelligence threats in the next two to three years.”  In January 31 testimony to the Senate Intelligence Committee, DNI James R. Clapper said that unauthorized disclosures of classified information had “caused significant damage to US interests.” Further, he said, “We assess that trusted insiders using their access for malicious intent represent one of today’s primary threats to US classified networks.”  “Engagement with the media” will not be the main response to such threats.

And second, WikiLeaks, which targeted legitimate and illegitimate secrets with equal vigor, has inspired and accelerated the development of new forensic tools and methods to identify the sources of unauthorized disclosures.  Internal surveillance of classified networks is set to grow, with new mechanisms for tracking and auditing online activity by government employees.  Whatever else might be true, the status quo of a few years ago has been left behind.

China’s Vice President Visits the US, and More from CRS

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

China’s Vice President Xi Jinping Visits the United States: What Is at Stake?, February 6, 2012

Lebanon and the Uprising in Syria: Issue for Congress, February 2, 2012

Iran’s Threat to the Strait of Hormuz, January 23, 2012

Sourcing Policy: Selected Developments and Issues, February 7, 2012

Smart Meter Data: Privacy and Cybersecurity, February 3, 2012

Suicide Prevention Efforts of the Veterans Health Administration, February 3, 2012

Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits, January 19, 2012

Detention of U.S. Persons: What is the Existing Law?

When Congress passed the 2012 National Defense Authorization Act, it included provisions that authorized U.S. armed forces to detain persons who are captured in the conflict with al-Qaeda, the Taliban, or associated forces. However, Congress also said that those provisions did not provide any new authority to detain U.S. citizens or others who may be captured in the United States.

“Nothing in this section shall be construed to affect existing law or authority relating to the detention of United States citizens…,” section 1021(e) of the Act states.  “We are simply codifying existing law,” said Sen. Carl Levin, chair of the Senate Armed Services Committee, at the time.

But this was an evasion, since existing law regarding the detention of U.S. persons is indeterminate in important respects.

A new report from the Congressional Research Service fleshes out the law of detention, identifying what is known to be true as well as what is unsettled and unresolved.

It is perfectly clear, for example, that a U.S. citizen who fought alongside enemy forces against the United States on a foreign battlefield could be lawfully detained.  This was affirmed by the U.S. Supreme Court in the case Hamdi v. Rumsfeld.

On the other hand, the CRS report explains, “the President’s legal authority to militarily detain terrorist suspects apprehended in the United States has not been definitively settled.”

Nor has Congress helped to settle it.  “This bill does not endorse either side’s interpretation,” said Sen. Dianne Feinstein on December 1 about the defense authorization act, “but leaves it to the courts to decide.”

So if a detention of a U.S. person does occur, the CRS said, “it will be up to a court to determine Congress’s intent when it enacted the AUMF [the 2001 Authorization to Use Military Force], or alternatively, to decide whether the law as it was subsequently developed by the courts and executive branch sufficiently established that authority for such detention already exists.”

Up to now, “Lower courts that have addressed questions the Supreme Court left unanswered have not achieved a consensus on the extent to which Congress has authorized the detention without trial of U.S. persons as ‘enemy combatants,’ and Congress has not so far clarified its intent.”

The new CRS report traces the development of U.S. detention policy from the Alien and Sedition Acts of 1798 through the Civil War, the two World Wars, and the Cold War up to the present day. See Detention of U.S. Persons as Enemy Belligerents by CRS legislative attorney Jennifer K. Elsea, February 1, 2012.

Some other new (or newly updated) CRS reports obtained by Secrecy News that have not been made readily available to the public include the following.

Terrorist Watch List Screening and Brady Background Checks for Firearms
, February 1, 2012

War Powers Resolution: Presidential Compliance, February 1, 2012

The U.S. Postal Service’s Financial Condition: Overview and Issues for Congress, January 27, 2012

Military Intelligence Professional Bulletin Online

The Military Intelligence Professional Bulletin is a quarterly journal published by the U.S. Army to promote awareness and discussion of current topics in military intelligence.  Although unclassified, the Bulletin is not made available online by the Army.  Recent volumes can be found, however, on the Federation of American Scientists website.

The two latest issues are devoted to Intelligence in the Current Environment (April-June 2011) and Enabling Intelligence Analysis (July-September 2011).

Specter of a “Hollow Force” Called Into Question

Secretary of Defense Leon Panetta and other officials have warned that if U.S. military spending is cut significantly, the unacceptable result would be a “a hollow force incapable of sustaining the missions it is assigned.”

But a new critique from the Congressional Research Service suggests that the use of the term “hollow force” is inappropriate and unwarranted.

“Historically, there were two periods– post-Vietnam and again in the 1990s– when the term ‘hollow force’ was used to describe the U.S. armed forces.”  It referred to “forces that appear mission-ready but, upon examination, suffer from shortages of personnel and equipment, and from deficiencies in training.”

But a close review of the circumstances that generated a hollow force in the past does not support the use of the term today, the CRS said.  “Most of the conditions that existed in the 1970s do not exist today.”

Among other things, defense procurement spending has surged in recent years to enable significant modernization of military forces.

“Even if modernization funds become more limited in future defense budgets, overall budget data suggest the Services would enter this period after having invested in modernized forces about as substantially as in the weapons-driven buildup of the 1980s.”

“CRS has calculated that when recent amounts for weapons modernization are compared to amounts in the mid-1980s, the total inflation-adjusted dollar value of relatively modern equipment available to forces today (i.e., equipment purchased within the past 10 years) appears relatively robust.”

“Given these conditions, it can be argued that the use of the term ‘hollow force’ is inappropriate under present circumstances,” the CRS report said.

A copy of the new CRS report was obtained by Secrecy News.  See A Historical Perspective on “Hollow Forces,” January 31, 2012.

Congress Calls for Accelerated Use of Drones in U.S.

Updated below

A House-Senate conference report this week called on the Administration to accelerate the use of civilian unmanned aerial systems (UAS), or “drones,” in U.S. airspace.

The pending authorization bill for the Federal Aviation Administration directs the Secretary of Transporation to develop within nine months “a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.”

“The plan… shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.”

The conference bill, which still awaits final passage, also calls for establishment of UAS test ranges in cooperation with NASA and the Department of Defense, expanded use of UAS in the Arctic region, development of guidance for the operation of public unmanned aircraft systems, and new safety research to assess the risk of “catastrophic failure of the unmanned aircraft that would endanger other aircraft in the national airspace system.”

The Department of Defense is pursuing its own domestic UAS activities for training purposes and “domestic operations,” according to a 2007 DoD-FAA memorandum of agreement.  (“Army Foresees Expanded Use of Drones in U.S. Airspace,” Secrecy News, January 19, 2012.)

Update: In the recently enacted FY2012 National Defense Authorization Act (section 1097), Congress mandated that “the Administrator of the Federal Aviation Administration shall establish a program to integrate unmanned aircraft systems into the national airspace system at six test ranges.” This new test range program is supposed to be established within 180 days.

As of 2010, hundreds of FAA authorizations had already been granted for use of unmanned aerial systems within U.S. airspace.

An Overview of Special Operations Forces, and More from CRS

Over the past decade, the number of U.S. special operations forces (SOF) personnel has nearly doubled, while budgets for special operations have nearly tripled, and overseas deployments have quadrupled, according to a newly updated report from the Congressional Research Service.

“Special Operations Forces are elite military units with special training and equipment that can infiltrate into hostile territory through land, sea, or air to conduct a variety of operations, many of them classified,” the CRS report explains. “SOF personnel undergo rigorous selection and lengthy specialized training. The U.S. Special Operations Command (USSOCOM) oversees the training, doctrine, and equipping of all U.S. SOF units.”

Following an overview of the structure of U.S. special operations forces, the CRS report discusses the implications for special operations of recent legislation including the 2012 defense authorization act.  See U.S. Special Operations Forces (SOF): Background and Issues for Congress, January 11, 2012.

A copy of the new U.S. Special Operations Command Fact Book 2012, prepared by USSOCOM Public Affairs, is available here.

Other noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following:

Arms Sales: Congressional Review Process, February 1, 2012

The Nunn-McCurdy Act: Background, Analysis, and Issues for Congress, January 31, 2012

Immigration-Related Detention: Current Legislative Issues, January 12, 2012

Some Historical Intelligence Satellite Imagery Declassified

A handful of historical intelligence satellite images were declassified last month to coincide with a new display of the GAMBIT and HEXAGON spy satellites at the National Air Force Museum at Wright-Patterson Air Force Base.

The GAMBIT and HEXAGON satellites were formally declassified last September on the occasion of the fiftieth anniversary of the National Reconnaissance Office.  At that time, the NRO released voluminous documentation on the development of those satellites.  But the associated imagery, which is held by the National Geospatial-Intelligence Agency, was not released.  Now a small number of satellite images have been made public.

However, the newly disclosed images are not originals, but are embedded in “posters” published by the NRO.  As such, they do not lend themselves to detailed analysis, complained Charles P. Vick of GlobalSecurity.org.  Nor are the original negatives of the declassified photos available for public inspection.

There is an annotation on the released images indicating that they were declassified on January 13, 2012 by the Director of National Intelligence, which would be consistent with the provisions of the 1995 executive order 12951.

“The images have undoubtedly been degraded, because GAMBIT and HEXAGON’s best imagery capabilities remain classified,” wrote Dwayne Day in The Space Review. “These photographs are hopefully the first in many yet to come, and will help us better understand the battles in the shadows of the Cold War.”

Among other things, the NRO also released a new edition of the 1973 histories of GAMBIT and HEXAGON written by Robert L. Perry.

“Perry’s histories… serve as exemplars of the art and craft of historians. They are rich in detail, well-sourced, and written with engaging prose,” according to an informative introduction by James D. Outzen of the Center for the Study of National Reconnaissance.

Unfortunately, the new edition, while handsome, is not exemplary because it obscures the redaction of material that is still considered classified:  “With respect to redacted material, we have edited the volumes to smooth the flow of language in the volume, rather than indicate where material was redacted.”  This was a mistake.

Remarkably, the NRO initiative to declassify GAMBIT and HEXAGON program information, including imagery, dates back to 1997.  At that time, a seven-month implementation schedule was optimistically anticipated.

“I would like to hiqhliqht this declassification effort with a National Reconnaissance Office (NRO) ceremony (including the release of selected declassified imagery from both systems) in October 1997,” wrote NRO Deputy Director Keith R. Hall in a March 1997 memorandum that was obtained by Jeffrey Richelson of the National Security Archive.

As it turned out, the declassification process took 14 years, not seven months.

Raven Rock and Continuity of Government

A newly revised U.S. Air Force directive on continuity of operations under emergency circumstances refers matter-of-factly to Raven Rock Mountain Complex, a largely restricted U.S. government facility in Pennsylvania.  See Air Force Continuity of Operations (COOP) Program, Air Force Instruction 10-208, 15 December 2011.

Raven Rock, also known as Site R, has been operational since 1953 for purposes of emergency communications, disaster relocation and recovery.  But most operations at the facility have been classified, and the facility itself was rarely mentioned in official publications during most of the past half century.  A previous edition of the new Air Force Instruction that was issued in 2005 made no reference to Raven Rock.