Posts from April, 2012

Cybersecurity: A Bibliography, and More from CRS

New and updated Congressional Research Service reports that Congress has withheld from direct public access include the following.

Cybersecurity: Authoritative Reports and Resources, April 26, 2012

The Budget Control Act of 2011: The Effects on Spending and the Budget Deficit When the Automatic Spending Cuts Are Implemented, April 23, 2012

Budget “Sequestration” and Selected Program Exemptions and Special Rules, April 27, 2012

U.S. Solar Photovoltaic Manufacturing: Industry Trends, Global Competition, Federal Support, April 27, 2012

Foreign Assistance to North Korea, April 26, 2012

Chile: Political and Economic Conditions and U.S. Relations, April 6, 2012

Canada-U.S. Relations, April 5, 2012

New Army Doctrine on “Information Collection”

An Army field manual published last week explains the Army’s conduct of information collection activities in military operations.

“In this manual, the term ‘information collection’ is introduced as the Army’s replacement for ‘intelligence, surveillance, and reconnaissance’ (also known as ISR),” the manual says.

“This publication clarifies how the Army plans, prepares, and executes information collection activities within or between echelons.”

“As the Army fields new formations and equipment with inherent and organic information collection capabilities, it needs a doctrinal foundation to ensure their proper integration and use to maximize their capabilities.”

See Information Collection, U.S. Army Field Manual (FM) 3-55, April 23, 2012.

Govt Appeals Court-Ordered Release of Classified Document

Government attorneys said yesterday that they would appeal an extraordinary judicial ruling that required the release of a classified document in response to a Freedom of Information Act request.

The document in question is a one-page position paper produced by the U.S. Trade Representative (USTR) concerning the U.S. negotiating position in free trade negotiations.  It was classified Confidential and was not supposed to be disclosed before 2013.

But immediate disclosure of the document could not plausibly cause damage to the national security, said DC District Judge Richard W. Roberts in a February 29, 2012 opinion, and so its continued classification, he said, is not “logical.”  He ordered the government to release the document to the Center for International Environmental Law, which had requested it under FOIA.  (Court Says Agency Classification Decision is Not ‘Logical’, Secrecy News, March 2, 2012.)

This kind of independent review of the validity of classification decisions, which is something that judges normally refrain from doing, offers one way to curb galloping overclassification.

While the substance of the USTR document is likely to be of little general interest, the court’s willingness to disregard the document’s ill-founded classification and to require its disclosure seems like a dream come true to critics of classification policy.  If the decision serves as a precedent and a spur to a more broadly skeptical judicial approach to classification matters, so much the better.

But what may be a dream to some is a nightmare to others.  The bare possibility of such an emerging challenge to executive classification authority was evidently intolerable to the Obama Administration, which will now seek to overturn Judge Roberts’ ruling in the DC Circuit Court of Appeals.

Patent Office Weighs Patent Secrecy for “Economic Security”

In response to congressional direction, the U.S. Patent and Trademark Office is considering whether to expand the scope of patent secrecy orders — which prohibit the publication of affected patent applications — in order to enhance “economic security” and to protect newly developed inventions against exploitation by foreign competitors.

Currently, patent secrecy orders are applied only to patent applications whose disclosure could be “detrimental to national security” as prescribed by the Invention Secrecy Act of 1951.  At the end of Fiscal Year 2011, there were 5,241 such national security secrecy orders in effect.

But now the Patent Office is weighing the possibility of expanding national security patent secrecy into the “economic security” domain.

“The U.S. Patent and Trademark Office is seeking comments as to whether the United States should identify and bar from publication and issuance certain patent applications as detrimental to the nation’s economic security,” according to a notice that was published in the Federal Register on April 20.

That would be a mistake, I wrote in my own comments submitted to the Patent Office yesterday.

Economic security — which could conceivably implicate all new inventions — is not analogous to the more limited domain of national security-related inventions, “so the use of secrecy orders is inappropriate to protect economic security,” I suggested.

Instead, the existing option for an applicant to request nonpublication of his or her patent application up to the point that the patent is issued is a superior alternative to a mandatory secrecy order, I wrote.  “The inventor is likely to be better qualified than any third party to assess the economic significance of the invention, and is also likely to be best motivated to protect his or her own financial interests.”

“The USPTO has not taken a position” on these questions, the Patent Office said in its April 20 notice, “nor is it predisposed to any particular views.”

Carbon Capture Research, and More from CRS

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

Carbon Capture and Sequestration: Research, Development, and Demonstration at the U.S. Department of Energy, April 23, 2012

Members of Congress Who Die in Office: Historic and Current Practices, April 25, 2012

Hydraulic Fracturing and the National Environmental Policy Act (NEPA): Selected Issues, April 25, 2012

Domestic Content Legislation: The Buy American Act and Complementary Little Buy American Provisions, April 25, 2012

The STOCK Act, Insider Trading, and Public Financial Reporting by Federal Officials, April 19, 2012

Data Security Breach Notification Laws, April 10, 2012

Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, April 6, 2012

Senate Review of CIA Interrogation Program “Nearing Completion”

The Senate Intelligence Committee has been reviewing the post-9/11 detention and interrogation practices of the Central Intelligence Agency for four years and is still not finished.  But the end appears to be in sight.

“The review itself is nearing completion — before the end of summer — but is not over yet,” a spokesperson for the Committee said.  “The release date should be not too far thereafter, but is not set.”

“This review is the only comprehensive in-depth look at the facts and documents pertaining to the creation, management, and effectiveness of the CIA detention and interrogation program,” according to Sen. Jay Rockefeller, who was chairman of the Intelligence Committee when the review began in 2008.

Committee staff are said to have reviewed millions of pages of classified documents pertaining to the CIA program.

In newly published questions for the record following his confirmation hearing last year to be Director of the CIA, Gen. David Petraeus was asked by Senator Rockefeller if he would cooperate with the Committee review.

“I believe that a holistic and comprehensive review of the United States Government’s detention and interrogation programs can lead to valuable lessons that might inform future policies,” Petraeus replied.

“The best way to gain a common set of facts would be to reach out to the intelligence and military communities responsible for detentions and interrogations and for implementing future policies,” he added.  “[T]o gain the proper insights from a series of actions or decisions, we cannot separate the review process from the public servants undertaking the actions,” he said.

Gen. Petraeus also responded to questions concerning interrogation in the “ticking time bomb” scenario (he says “research is required now”), and the applicability of official U.S. government statements on the use of drones to CIA operations (which he declined to confirm), among other topics.

His responses to these questions were published earlier this month in the record of his June 23, 2011 confirmation hearing.

Sen. Dianne Feinstein, the current chair of the Senate Intelligence Committee, provided a preview of the Committee’s findings on CIA interrogation practices in a November 29, 2011 floor statement during the debate on the FY2012 defense authorization act (also noted by Jeffrey Kaye in The Public Record).

“As chairman of the Select Committee on Intelligence, I can say that we are nearing the completion a comprehensive review of the CIA’s former interrogation and detention program, and I can assure the Senate and the Nation that coercive and abusive treatment of detainees in U.S. custody was far more systematic and widespread than we thought,” Sen. Feinstein said.

“Moreover, the abuse stemmed not from the isolated acts of a few bad apples but from fact that the line was blurred between what is permissible and impermissible conduct, putting U.S. personnel in an untenable position with their superiors and the law.”

Govt Wants More Time to Respond to CIA Drone FOIA Case

Government attorneys yesterday asked a court for an extension of time to respond to two Freedom of Information Act lawsuits seeking disclosure of records pertaining to “alleged targeted lethal operations” conducted by the Central Intelligence Agency, including the killing of Anwar al-Awlaki.

The attorneys’ request seems to portend a possible change in the government’s persistent refusal to acknowledge the widely reported fact of the CIA’s use of drones in targeted killing operations.

“Attorney General Eric H. Holder, Jr. has personally directed us to seek this additional time to allow the Government to finalize its position with regard to the sensitive national security matters presented in this case,” the Justice Department attorneys told the judge.

“Given the significance of the matters presented in this case, the Government’s position is being deliberated at the highest level of the Executive Branch.”

At issue are two FOIA lawsuits brought by the New York Times and the American Civil Liberties Union.  The request for an extension until May 21, 2012 was granted by Judge Colleen McMahon.

Meanwhile, the Justice Department has just released its 2011 report on FOIA litigation and compliance.  Among other things, the report notes that the so-called “Glomar” response — by which an agency refuses to confirm or deny the existence of responsive records — was invoked by the government in three cases that were decided in 2011.  In each of those cases, the court ruled in favor of the government.

Manning Defense Seeks Dismissal of Charges

At a pre-trial hearing this week in the case of Pfc. Bradley Manning, who is suspected of releasing classified records to WikiLeaks without authorization, a military judge will consider several motions filed by Manning’s defense that seek to reduce the charges against him, or to have them dismissed altogether.

The defense motions, filed by attorney David E. Coombs and made available on his blog with some redactions, assert a range of objections including these:

*  The government has so egregiously failed to fulfill its discovery obligations — i.e. its duty disclose exculpatory and other “Brady” information to the defense — that the whole case must be dismissed.  “The Government’s abdication of its basic discovery responsibilities is unconscionable and irreparably prejudicial, mandating that all charges should be dismissed with prejudice,” Mr. Coombs contended.

*  The government has specifically failed to provide defense access to the computers in the secure area where Manning worked, which might enable it to rebut charges that Manning had uploaded unauthorized software on to his system.  “The Defense’s tentative theory is that all or most soldiers in the SCIF had unauthorized software on their computers (e.g. M-IRC Chat, Google Earth, Wget, movies, music, games, etc.)… The Defense intends to show that the practice of adding ‘unauthorized’ software was so pervasive that, in effect, all ‘unauthorized’ programs were implicitly or explicitly authorized.”

*  The government has improperly multiplied the charges against Manning by treating single violations as multiple offenses.  “This creative drafting by the Government drastically exaggerates PFC Manning’s criminality and unreasonably increases his punitive exposure,” Mr. Coombs wrote.

Perhaps the most penetrating challenge presented by the defense is a motion to dismiss the charge of “aiding the enemy” (Article 104) because, the defense says, there is no evidence that Manning intended to assist an enemy of the United States, and such an intent is a required element of the charge.

“Every court interpreting Article 104(2) has held that the Government must prove general criminal intent to give intelligence to, or communicate with, the enemy;  indeed, no prosecution under this Article has ever been maintained without some allegation of mens rea [i.e. criminal intent]…. mere dissemination of information to persons unauthorized to receive it is insufficient without the necessary criminal intent.”

But, Mr. Coombs wrote, “The Government has not alleged that PFC Manning intended to give intelligence to, or communicate with, the enemy in making the alleged disclosure to WikiLeaks.  Rather, the Government has merely alleged that PFC Manning had knowledge that the information, if ultimately published, might be accessible to the enemy and that such information might help the enemy.  Such a feeble mens rea allegation is patently insufficient to establish the requisite intent under Article 104.”  (He added that “The amount of conduct that is made subject to potential capital punishment under such an interpretation is staggering… The potential for liability is endless.”)

To the contrary, Mr. Coombs argued, “PFC Manning expressly disclaimed any intent to help any enemy of the United States” in the chat logs in which he discussed his actions.  “Far from intending to aid any enemy of the United States, PFC Manning’s actions and statements illustrate a conscious rejection of any such ill motive.”

Prosecutors have declined to make their responses to Mr. Coombs’ motions available to the public, so their positions are not known in any detail.

Mr. Coombs said that both sides are in agreement, however, that the Manning case “is one of the largest and most complex cases in United States military history.”

The pre-trial hearing, known formally as an Article 39(a) hearing, will be held April 24-26 at Fort Meade, Maryland.

Why Are There So Many Leak Prosecutions?

As is often remarked, the number of individuals charged with Espionage Act violations by the Obama Administration for disclosing information to the media without authorization is unprecedented and exceeds all previous cases in all prior Administrations combined.  But why is that?

There are several possible explanations.  One answer is that the sources of unauthorized disclosures are easier than ever to identify.  The actual disclosure transaction, as well as the source-reporter relationship behind it, often leaves an electronic footprint (especially email and telephone records) that official investigators are increasingly adept at exploiting.  Another explanation is that the voluminous and sometimes reckless disclosures published by WikiLeaks triggered a predictable intensification of efforts to track and punish leakers, along with the broader tightening of information security that seems to be the most enduring legacy of the WikiLeaks episode.

But yet another factor that is usually overlooked is that Congress has pressured the Administration to vigorously pursue leaks.  Congressional leaders want leak prosecutions, and they want a lot of them.

At her May 17, 2011 confirmation hearing to be head of the Justice Department’s National Security Division (NSD), Lisa O. Monaco noted the role of the Senate Intelligence Committee in pushing the issue.  “This Committee has… pressed the [Justice] Department and the intelligence community… to ensure that unauthorized disclosures are prosecuted and pursued, either by criminal means or the use of administrative sanctions,” she said.

After Ms. Monaco described each of the multiple pending leak prosecutions that were pending at that time, she was nevertheless asked (in pre-hearing questions) “Are there any steps that the Department could take to increase the number of individuals who are prosecuted for making unauthorized disclosures of classified information to members of the news media?”

Ms. Monaco told the Intelligence Committee that “the NSD has been working closely with the Intelligence Community to expedite and improve the handling of such cases.”  She pledged to the Committee that it would be “my priority to continue the aggressive pursuit of these cases.”   And so it has been.

The record of Ms. Monaco’s 2011 confirmation hearing before the Senate Intelligence Committee was published last month and is available here.

Stephen Daggett, Defense Spending, and More from CRS

We note with sadness the death last week of Congressional Research Service analyst Stephen Daggett, who tutored generations of Members and congressional staff in the intricacies of U.S. military spending.  Although I did not know him personally, I read his work and learned from him for many years.  Our condolences to his family and his CRS colleagues.

A new report co-authored by Mr. Daggett, presumably his final contribution, is FY2013 Defense Budget Request: Overview and Context, April 20, 2012

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

Army Drawdown and Restructuring: Background and Issues for Congress, April 20, 2012

Reexamination of Agency Reporting Requirements: Annual Process Under the GPRA Modernization Act of 2010 (GPRAMA), April 18, 2012

Iraq: Politics, Governance, and Human Rights, April 19, 2012

Economic Growth and the Unemployment Rate, April 18, 2012

Multilateral Development Banks: Overview and Issues for Congress, April 18, 2012