Posts from March, 2012

The Pivot to the Pacific, and More from CRS

The growing emphasis on Asia as a focus of U.S. national security planning, known as the “pivot to the Pacific,” is discussed in a new report from the Congressional Research Service.

“Underlying the ‘pivot’ is a conviction that the center of gravity for U.S. foreign policy, national security, and economic interests is being realigned and shifting towards Asia, and that U.S. strategy and priorities need to be adjusted accordingly,” the CRS report says. “For many observers, it is imperative that the United States give more emphasis to the Asia-Pacific. Indeed, for years, many countries in the region have encouraged the United States to step up its activity to provide a balance to China’s rising influence.”

“There are a number of risks to the ‘pivot,’ however. In an era of constrained U.S. defense resources, an increased U.S. military emphasis on the Asia-Pacific region might result in a reduction in U.S. military capacity in other parts of the world. Another budgetary consideration is that plans to restructure U.S. military deployments in Asia and minimize cuts in the Navy may run up against more restrictive funding constraints than plans yet assume.”

“Additionally,” the report says, “the perception among many that the ‘rebalancing’ is targeted against China could strengthen the hand of Chinese hard-liners. Such an impression could also potentially make it more difficult for the United States to gain China’s cooperation on a range of issues. Additionally, the prominence the Obama Administration has given to the initiative has raised the costs to the United States if it or successor administrations fail to follow through on public pledges made, particularly in the military realm.”

Congress is fully entitled to review the emerging policy, which is predicated on congressional action and cooperation, the CRS report said.

“Given that one purpose of the ‘pivot’ or ‘rebalancing’ toward the Asia-Pacific is to deepen U.S. credibility in the region at a time of fiscal constraint, Congress’s oversight and appropriations roles, as well as its approval authority over free trade agreements, will help determine to what extent the Administration’s plans are implemented and how various trade-offs are managed.”

A copy of the report was obtained by Secrecy News.  See Pivot to the Pacific? The Obama Administration’s ‘Rebalancing’ Toward Asia, March 28, 2012.

Other new and updated CRS reports that Congress has declined to make directly available to the public include the following.

Burma’s April Parliamentary By-Elections, March 28, 2012

Guam: U.S. Defense Deployments, March 29, 2012

Commerce, Justice, Science, and Related Agencies: FY2013 Appropriations, March 26, 2012

New Policy on Mitigating Risks of Bio Research

Certain types of life science research involving “high consequence pathogens and toxins” would be subject to new review and risk mitigation procedures which might include classification of the research or termination of the funding, according to a U.S. government policy issued yesterday by the National Institutes of Health.

The policy applies to research involving 15 specified biological agents and toxins which “pose the greatest risks of deliberate misuse with most significant potential for mass casualties or devastating effects to the economy, critical infrastructure or public confidence.”

Research that increases the lethality or transmissibility of the agent or toxin, or otherwise enhances its harmful consequences, will be subject to the new review procedures.

Based on the outcome of the review, a risk mitigation plan may be developed.  If less restrictive measures were deemed inadequate, the new policy would allow for national security classification of the research or termination of government funding.

See “United States Government Policy for Oversight of Life Sciences Dual Use Research of Concern,” March 29, 2012.

See also “U.S. Requires New Dual-Use Biological Research Reviews” by David Malakoff, Science Insider, March 29.

Implications of an Israeli Strike on Iran, and More from CRS

The factors that could influence an Israeli decision to attack Iranian nuclear targets and the implications of such an act were assessed in a new report from the Congressional Research Service.  The report surveys the multiple dimensions of the issue at length, though it does not appear to provide much new information or original analysis.  See Israel: Possible Military Strike Against Iran’s Nuclear Facilities, March 27, 2012.

Other new or updated CRS reports that Congress has not made directly available to the public include the following.

Iran: U.S. Concerns and Policy Responses, March 23, 2012

Fact Sheet: The FY2013 State and Foreign Operations Budget Request, March 19, 2012

Foreign Assistance to North Korea, March 20, 2012

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, March 23, 2012

Cybersecurity: Selected Legal Issues, March 14, 2012

Refugee Admissions and Resettlement Policy, March 7, 2012

“Power and Constraint” and Mutual Frustration

Constitutional government in the United States is alive and well.  At least, that is the hopeful conclusion of Jack Goldsmith’s stimulating new book “Power and Constraint.”

Goldsmith, a former head of the Bush Administration’s Office of Legal Counsel, disputes the widely accepted view that traditional checks and balances have been diminished by the war on terrorism.  According to the conventional account, the post-9/11 national security bureaucracy produced waterboarding, detention without trial, unlawful surveillance and other anomalies, while the enforcement of existing legal norms was crippled, oversight bodies were passive and uncommunicative, secrecy was rampant and impunity prevailed.

This is a superficial and erroneous perspective, Goldsmith contends.  If anything, he says, the mechanisms of oversight have flourished as never before and their ongoing impact on national security policy has been profound though not widely recognized.

While there has been nothing like a “truth commission” or a congressional Church Committee investigation to provide a full public account and evaluation of the government’s conduct of the war on terrorism, other types of oversight have more than filled the void, the author argues.  He cites the investigation of the CIA detention and interrogation program by CIA Inspector General John Helgerson, and subsequent reviews.

“No CIA program — including the ones that underlay the Iran-Contra scandal and the many investigated during the Church and the Pike Committee hearings — has ever undergone so much extended or critical scrutiny.  In the process both the CIA and the accountability system governing it changed fundamentally.”

Similarly, through the efficacy of internal and external oversight, the use of torture has been ended, habeas corpus has been reaffirmed, military commissions have been brought under the authority of law, and so forth.

In Goldsmith’s telling, the Presidency is a massively powerful Gulliver which is nevertheless constrained by a growing number of Lilliputian threads that limit executive freedom of action in new and unprecedented ways.  Journalists, military and civilian lawyers, human rights activists and civil liberties organizations are portrayed as powerful and influential forces that have materially altered national policies.  This contention has all the more weight — and cannot be easily dismissed as (self-)flattery or wishful thinking — because the author does not particularly share the agenda of these diverse actors.

“The dizzying and often painful swirl of investigations, lawsuits, reviews, reports, and accusations… forces the government to recalibrate its counterterrorism policies and accountability mechanisms constantly based on ever-changing information and ever-changing legal and political constraints,” he writes.

Yet this does not mean that all is well, or that anyone can rest easy.

“Many… remain alarmed by what they see as endless and undefined war, excessive presidential secrecy, insufficient judicial review of the President’s actions, too much surveillance, inadequate congressional involvement, and many other evils of the post-9/11 presidency.  They continue to push hard against the government with lawsuits, FOIA requests, accountability campaigns, and strident charges against public officials.”

And, he says, that’s good.  “This is all very healthy for the presidency and for national security.”

No one that Goldsmith spoke with — from executive branch and congressional officials to reporters, human rights organizations, and public interest activists — believes that political conditions are optimized to advance their own interests.  “They all believed that they are on the losing end of the stick in trying to influence U.S. counterterrorism policies and their associated accountability mechanisms.”

But what has been achieved, in the author’s view, is “a harmonious system of mutual frustration.”

“Power and Constraint” has many virtues, beginning with its respectful presentation of multiple contrasting perspectives on the issues it explores.

Goldsmith acknowledges the fundamental and destabilizing uncertainties that preclude a final settlement of counterterrorism policy:  “We do not know precisely how serious the Islamist terrorist threat is, or the likelihood of an attack, or its likely location or scale, or how much investment in what types of policies would best prevent attacks.”

Moreover, “even if all of the factual and legal questions were resolved, the assessment of proper counterterrorism policies and accountability mechanisms would still be guided by moral intuitions that are more diverse than we like to admit.  Many find waterboarding, military commissions, and detention without trial repulsive;  many others do not.”

The book includes a nuanced discussion of leaks of classified information, and of the role of secrecy more broadly, as well as the responses it has engendered.

“There are costs and benefits to national security from both secrecy and disclosure,” Goldsmith observes, “but we do not have great tools to measure or compare them.”

Military Intelligence and the Human Terrain System

The latest issue of the Army’s Military Intelligence Professional Bulletin is devoted to the Human Terrain System (HTS), which is a U.S. Army program to conduct social and cultural studies in support of military operations in Iraq and Afghanistan.  The Bulletin provides theoretical and practical accounts from HTS personnel in the field.

Thus, HTS analyst John Thorne writes that U.S. counterinsurgency operations can themselves generate a violent reaction “by causing shifts in perceptions of relative power or well-being, or through perceived threats to identity.”

The Army released the latest Bulletin in response to a Freedom of Information Act request.

The Human Terrain System program has been controversial among some social scientists who believe it wrongly subordinates scientific research to U.S. military imperatives.

April 4 Panel on Secrecy and Surveillance

The Open Society Foundations will host a discussion on “National Security Secrecy and Surveillance: Defending the Public’s Right to Know” on April 4 in New York City.

I will moderate a panel of speakers including NSA whistleblower Thomas Drake, Jesselyn Radack of the Government Accountability Project, investigative journalist Timothy Shorrock, and ACLU attorney Jameel Jaffer.

Seating is limited.  For more information and to RSVP see here.

Secret Drone Technology Barred by “Political Conditions”

Updated below

A certain technology that could extend the mission duration and capabilities of unmanned aerial vehicles (UAVs) was favorably assessed last year by scientists at Sandia National Laboratories and Northrop Grumman Systems Corporation.  But they concluded regretfully that “current political conditions will not allow use of the results.”

The assessment was carried out to explore the feasibility of next generation UAVs.  The objective was “to increase UAV sortie duration from days to months while increasing available electrical power at least two-fold,” according to a June 2011 Sandia project summary.

And that objective could have been achieved by means of the unidentified technology, which “would have provided system performance unparalleled by other existing technologies,” the project summary said.

“As a result of this effort, UAVs were to be able to provide far more surveillance time and intelligence information while reducing the high cost of support activities.  This technology was intended to create unmatched global capabilities to observe and preempt terrorist and weapon of mass destruction (WMD) activities.”

But it was all for nought.

“Unfortunately, none of the results will be used in the near-term or mid-term future,” the project summary stated.  “It was disappointing to all that the political realities would not allow use of the results.”

Not only that, but “none of the results can be shared openly with the public due to national security constraints.”

On close reading, it seems clear that the Sandia-Northrop project contemplated the use of nuclear technology for onboard power and propulsion.

The project summary, which refers to “propulsion and power technologies that [go] well beyond existing hydrocarbon technologies,” does not actually use the word “nuclear.”  But with unmistakable references to “safeguards,” “decommissioning and disposal,” and those unfavorable “political conditions,” there is little doubt about the topic under discussion.

Furthermore, the project’s lead investigator at Sandia, the aptly named Dr. Steven B. Dron, is a specialist in nuclear propulsion, among other things.  He co-chaired a session at the 2008 Symposium on Space Nuclear Power and Propulsion at the University of New Mexico.

Interestingly, opposition to flying nuclear power sources in this case was internalized without needing to be expressed, and the authors were self-deterred from pursuing their own proposals.  “The results will not be applied/implemented,” they stated flatly.

Meanwhile, integration of (conventional) unmanned aircraft systems into the National Airspace System will proceed, as mandated by Congress.  On March 6, the Federal Aviation Administration issued a request for public comments on the pending designation of six UAS test sites around the country.

Last month, the Electronic Privacy Information Center and other public interest organizations petitioned the FAA “to conduct a rulemaking to address the threat to privacy and civil liberties that will result from the deployment of aerial drones within the United States.”

Update: Sandia National Laboratories issued the following statement regarding this story:

“Sandia is often asked to look at a wide range of solutions to the toughest technical challenges. The research on this topic was highly theoretical and very conceptual. The work only resulted in a preliminary feasibility study and no hardware was ever built or tested. The project has ended.”

GAO Expands Oversight of Intelligence

The Government Accountability Office has overcome longstanding opposition to its role in intelligence oversight, and has been conducting several projects involving oversight of intelligence agencies.  A classified GAO review of FBI counterterrorism programs has been completed, and a GAO investigation of the role of contractors in intelligence is in progress.

Last year, acting at congressional direction, Director of National Intelligence James Clapper issued an Intelligence Community Directive that authorized and required U.S. intelligence agencies to cooperate with GAO investigators, with certain restrictions.  (“Intelligence Agencies Are Told to Cooperate with GAO,” Secrecy News, May 16, 2011).

That DNI directive appears to have broken the logjam of agency resistance, and at least some parts of the intelligence community that previously rebuffed GAO inquiries have become completely cooperative, congressional officials said.

Thus, the Federal Bureau of Investigation had refused for years to submit to GAO oversight of its counterterrorism programs.  The Bureau contended that GAO had no authority to review the programs because they were funded through the intelligence budget.  Moreover, the FBI told Sen. Charles Grassley that the Office of Legal Counsel had ratified that position and supported its refusal to cooperate with GAO.

But that is now in the past.  The GAO recently completed a classified assessment of FBI counterterrorism programs with full cooperation from the FBI.  A public version of the report is expected to be released sometime in the spring.

Another current GAO project explores “Civilian Agencies’ Reliance on Contractors.”  An unclassified statement of work for the project that was obtained by Secrecy News explains:

“When intelligence agencies rely on contractors for professional and management support services that inform government decisions, the risk of contractors unduly influencing these decisions is increased.  However, the extent to which this risk has been considered and managed is uncertain.”

The GAO project therefore aims to answer the following questions:

“(1) To what extent do civilian intelligence agencies rely on and strategically review their reliance on contractors to perform critical professional and management support services?  (2) To what extent do these agencies have policies and guidance that address the use of contractors for these services?  (3) What steps have these agencies taken to manage the risks associated with using contractors for these services?  (4) To what extent have these agencies addressed challenges with retaining federal personnel?”

GAO’s newly enhanced participation in the oversight process is the outcome of years of advocacy and debate involving a variety of interested parties.  Testimony on the subject from the Federation of American Scientists in 2008 is here.

The arduous process by which an accommodation was finally reached is detailed in a newly updated report from the Congressional Research Service.  See Congressional Oversight of Intelligence: Current Structure and Alternatives, March 14, 2012 (esp. pp. 25-30).

By itself, GAO’s involvement in intelligence oversight is unlikely to resolve many controversies in intelligence policy.  It may not resolve any of them.  But what it can do is to expand the current capacity of intelligence oversight, bringing new resources to bear and increasing the likelihood that intelligence activities are carried out consistent with law and good policy.

Nozette Was Manipulated by FBI, His Attorneys Say

Updated below

Scientist Stewart Nozette has pleaded guilty to attempted espionage and will be sentenced this week to an anticipated 13 year prison term.  But he never committed espionage in fact and he would never have considered the possibility if he had not been “manipulated and exploited” by FBI agents, his attorneys wrote in a lengthy rebuttal to a pre-sentencing memorandum filed by the government last week (“Scientist Nozette Called Brilliant, Greedy Traitor,” Secrecy News, March 13.)

“Contrary to poisonous inferences which the government spread on the public record in its initial Complaint and the detention hearing, this case is not about a man who had been committing acts of espionage for years,” Nozette’s attorneys wrote.  “Rather this case is about the FBI wrongly suspecting Dr. Nozette was spying for Israel and then malevolently targeting him in the hopes they could ultimately ensnare him within the nation’s espionage laws.”

From their very first meeting, the FBI undercover agent “ignor[ed] Dr. Nozette’s stated intent not to provide classified information and overtly encourag[ed] him to proceed otherwise,” the attorneys wrote in what they said was simply an effort to correct the record.

“Dr. Nozette is neither attempting to withdraw from his plea nor evade responsibility for his conduct.  His response to the UC’s [undercover agent's] entreaties was inappropriate and ill-advised regardless of the devious, manipulative and exploitive nature of those overtures….  But it is important that the public, and the scientific community in particular, be aware of the tactics engaged in and the judgment, or lack thereof, exercised by the agents of the FBI and the Department of Justice in this case.”

“At the end of the day it was the agents of the FBI who approached Dr. Nozette, not the other way around;  and it was those same agents who created, manipulated and exploited the circumstances that led to this offense and sadly to Dr. Nozette’s unnecessary fall and disgrace,” they concluded.

Government attorneys immediately filed a reply, rejecting what they called “spurious allegations and attacks against dedicated law enforcement agents.”

“In the end, defendant is the only person to blame for his predicament,” they wrote.  “There is no excuse for betrayal of one’s country.  There is no excuse for defendant’s conduct.”

Update: On March 21, Stewart Nozette was sentenced to a 13 year prison term.

Agency Use of New Media, and More from CRS

Some new or updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

Congressional Oversight of Agency Public Communications:  Implications of Agency New Media Use, March 14, 2012

The Global Climate Change Initiative (GCCI): Budget Authority and Request, FY2010-FY2013, March 15, 2012

Russia’s March 2012 Presidential Election:  Outcome and Implications, March 14, 2012