Posts from June, 2012

Some Unauthorized Disclosures of Classified Info Are Routine

The brewing controversy over leaks of classified information presumes that disclosures of classified information to unauthorized persons are always impermissible and undesirable.  But that presumption does not correspond precisely to the reality of government operations as they are conducted in practice.

The leaders of the House and Senate Intelligence Committees said last week that they would work “to ensure that criminal and administrative measures are taken each time sensitive information is improperly disclosed.”

In fact, however, classified information is frequently disclosed at the interface between national security agencies and the news media.  This is not necessarily a surreptitious or underhanded process.  Rather, though it is not often discussed, it is how the system normally functions.

“I refer to classified information a lot,” admitted then-Pentagon press secretary Kenneth Bacon at a November 2000 press briefing, when asked whether all of his statements from the podium were unclassified.

“There are certain questions that I can only answer by referring to classified information,” Mr. Bacon said at that time, adding that “I do this carefully, after consultation with our intelligence authorities, to make sure that I don’t answer questions in a way that causes any problems.”

This type of routine public discussion of classified information would have been obstructed if there were a law that categorically prohibited all unauthorized disclosures of classified information.  When Congress passed such a measure in 2000, Mr. Bacon and other executive branch officials quietly opposed it, and it was ultimately vetoed by President Clinton.

“There are certain types of questions that can only be answered with references to classified information,” Mr. Bacon told reporters following the presidential veto.  “One of the concerns that I and other spokespeople had [about the vetoed provision was that] it would prevent reference to classified information in answering everyday questions.”

Thus, the peculiar reality is that certain officials routinely take it upon themselves to discuss classified information with unauthorized persons.  They do so not to subvert policy but to explain it, to defend it and to execute it.  Though it may seem counterintuitive (and may in fact violate formal procedures), sometimes officials will even reveal currently classified information in order to enhance security.

Veteran aerospace journalist Craig Covault wrote an article last week in which he recalled once such incident in the 1970s.  At that time Mr. Covault was the space technology editor at Aviation Week, which was sometimes referred to as “Aviation Leak” because of the prevalence of (actual or purported) classified information in its pages.  In the course of his reporting, Mr. Covault learned some details about the KH-11 intelligence satellite shortly following its first launch in December 1976.  After he queried Air Force public affairs about the matter, he received an urgent summons to discuss it that afternoon with the Chairman of the Joint Chiefs of Staff.  As he described it:

“I showed up at the Pentagon at the appointed time and was taken up to the suite of offices used by Joint Chiefs Of Staff, then ushered into the office of Air Force General David Jones, a four star that had commanded the Strategic Air Command before becoming Chairman. My escort then departed and it was just Jones and myself left to discuss this issue.”

“He said he was familiar with my coverage then asked ‘what have you got?’ I explained in significant detail what sources had told me about the new reconnaissance system.”

“‘You are exactly right’ said Jones, ‘and now I am going to give you the reasons why we request that you not publish’.”

“He then cited specific examples where the Soviets were not taking any measures to conceal what they were doing as this first KH-11 approached and passed overhead. Unlike the KH-9s, they did not realize yet that this was a high resolution imaging spacecraft that could see people, and tell if they were carrying a lunchbox or not.”

“Jones said the Soviets were leaving missile silo doors open allowing us to ‘look right in’ and keeping their own new secret aircraft in the open.  If I published, it would ruin a major U. S. intelligence advantage. Jones had clearly demonstrated that no articles on the KH-11 should be written at that time so I agreed to his request to hold.”

“And on the way out he asked. ‘Now is there anything I can do for you?’”

“There was certainly no quid pro quo in my mind for this discussion, so his question was a surprise. But when he asked that, I told him I had not received any consistent backgrounders on the Soviet space program. ‘You will have them now,’ Gen. Jones said, and for the next two years I received classified backgrounders on the Soviet space program at the Defense Intelligence Agency.”

This is a remarkable anecdote in several respects.  Significantly, General Jones did not declassify the information about the KH-11 satellite, which remained highly classified.  Instead, he simply revealed it to Mr. Covault, an uncleared reporter, even though this was technically inconsistent with procedures in effect then and now.  Gen. Jones did not insist that Mr. Covault sign a non-disclosure agreement, or that he submit his work to some kind of prepublication review.  Rather, he simply argued the case for secrecy on the merits, and he succeeded in persuading Mr. Covault not to publish the information in question, to the presumptive benefit of national security.  (On another occasion described by Mr. Covault in the same article, he found the government’s request not to publish unpersuasive and disregarded it.)

Was General Jones guilty of “leaking” information to Mr. Covault?  Should the Chairman of the Joint Chiefs of Staff have been fired or sent to prison for his actions?  He certainly disclosed highly classified information to an unauthorized person, and he did so not once but repeatedly through the ongoing classified briefings that he arranged for Mr. Covault.

In other respects, though, this story is quite unremarkable.  Many national security reporters who write about classified government activities and seek a response from a government spokesman will have a similar (though perhaps less dramatic) tale to tell.

If members of Congress are determined to impose punitive measures “each time” that classified information is disclosed, then they will be confusing means (secrecy) and ends (security).  They run the risk of turning an already sluggish classification system into one that is so rigid as to be self-defeating.

There is no doubt such a thing as a wrongful and unlawful disclosure of classified information, but it seems that there are also wise, prudent and appropriate disclosures of classified information.  The actions of General Jones — or of Kenneth Bacon or innumerable others who have acknowledged or revealed classified information in similar circumstances — were not those of a criminal, and it would almost certainly be counterproductive to try to designate them categorically as crimes.

Some of the challenges involved in prosecuting a leak case were discussed in “For U.S. Inquiries on Leaks, a Difficult Road to Prosecution” by Charlie Savage, New York Times, June 10, 2012.

Loophole in Law May Allow Warrantless Surveillance of Americans

Members of the Senate Intelligence Committee are divided over whether there is a loophole in current law which would permit government agencies to monitor the communications of American citizens without any kind of warrant or other judicial authorization.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

It is unclear from the public record which of these conflicting positions is more likely to be correct.

Senators Wyden and Udall offered an amendment to explicitly prohibit searches of U.S. persons’ communications that are incidentally gathered in the course of FISA surveillance of foreign persons abroad unless there is a warrant or other authorization permitting surveillance of that specific person, but their amendment was voted down in Committee by 13-2.

“We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number,” Sens. Wyden and Udall wrote.  An Inspector General review is now underway to determine whether it is feasible to estimate the number, Sen. Feinstein noted.

See FAA Sunsets Extension Act of 2012, Senate Report 112-174, June 7, 2012.

The first three semi-annual reports on compliance with the procedures of Section 702 of the FISA Amendments Act were recently released in redacted form by the Office of the Director of National Intelligence.

Those reports generally found no evidence of “any intentional or willful attempts to violate or circumvent the requirements of the Act.”  On the other hand, “certain types of compliance incidents continue to occur, indicating the need for continued focus on measures to address underlying causes, including the potential need for additional measures.”

Senate: Drones Need to Operate “Freely and Routinely” In U.S.

The integration of drones or unmanned aerial systems (UAS) into the National Airspace System (NAS) needs to be expedited, the Senate Armed Services Committee said in its report on the FY2013 defense authorization bill last week.

“While progress has been made in the last 5 years, the pace of development must be accelerated; greater cross-agency collaboration and resource sharing will contribute to that objective,” the Committee said.

A provision of the bill would encourage greater collaboration on drone integration among the Department of Defense, the Federal Aviation Administration, and NASA.

“Large number of UASs now deployed overseas may be returned to the United States as the conflict in Afghanistan and operations elsewhere wind down in coming years, and new UASs are under development.”

“Without the ability to operate freely and routinely in the NAS, UAS development and training– and ultimately operational capabilities– will be severely impacted,” the Committee report said.

Meanwhile, the House of Representatives yesterday approved an amendment to the 2013 Department of Homeland Security Appropriations bill that would prohibit DHS from acquiring or flying drones that have weapons onboard.

“None of the funds made available by this Act may be used for the purchase, operation, or maintenance of armed unmanned aerial vehicles,” says the provision sponsored by Rep. Rush Holt (D-NJ).

This prohibition, which is limited to DHS, is likely to be of no practical significance.  “Has there ever been any plan to buy armed drones by Homeland Security?” asked Rep. Norm Dicks on the House floor yesterday.  “No,” replied Rep. Robert Aderholt.

Also yesterday, Rep. Scott Austin (R-GA) introduced a bill (HR 5925) “to protect individual privacy against unwarranted governmental intrusion through the use of the unmanned aerial vehicles commonly called drones.”

McCain Promotes Offensive Cyber Capabilities

The U.S. military is placing too much emphasis on defense against cyber attacks when it should be developing offensive cyber capabilities, according to Sen. John McCain.

“”I am very concerned that our strategy is too reliant on defensive measures in cyber space, and believe we need to develop the capability to go on the offense as well,” Sen. McCain wrote in remarks appended to the Senate Armed Services Committee report on the FY 2013 defense authorization bill.

“I believe that cyber warfare will be the key battlefield of the 21st century, and I am concerned about our ability to fight and win in this new domain.

“I authored a provision in the bill that requires the commander of U.S. Cyber Command to provide a strategy for the development and deployment of offensive cyber capabilities.”

“This provision to craft a comprehensive strategy should spur U.S. Cyber Command to develop this offensive capability effectively and at a reasonable cost to the taxpayer,” Sen. McCain wrote.

The Leak Wars

“The Department of Justice has not taken the initiative to prosecute leaks of national security secrets,” said Rep. Lamar Smith (R-TX) at a House Judiciary Committee hearing yesterday.

Considering that the Justice Department in the Obama Administration has initiated an unprecedented number of leak prosecutions, Rep. Smith had it exactly wrong.  But his remark illustrates the rampant confusion and the growing antagonism that surrounds the topic of leaks of classified information.

For some of the latest coverage, see:

“The ‘Leak’ Wars” by Josh Gerstein, Politico, June 8

“Toobin: Obama has been ‘very tough’ on leakers” by Ashley Hayes, CNN, June 7

“U.S. Attacks, Online and From the Air, Fuel Secrecy Debate” by Scott Shane, New York Times, June 7

McCain Calls for Special Counsel to Investigate Leaks

Updated below

Sen. John McCain asked the Obama Administration to appoint a special counsel to investigate recent leaks of classified information to the news media.  He condemned the disclosure of classified information in several recent news stories involving U.S. cyber attacks on Iran’s nuclear program and the use of drones in targeted killing programs, among others.  And he accused the Obama Administration of willfully promoting the disclosures.

The leaks appear to be part of “a broader effort by the administration to paint a portrait of the President of the United States as a strong leader on national security issues,” Sen. McCain said on the Senate floor yesterday.

Sen. Saxby Chambliss echoed that assessment.  “From kill lists and bin Laden movies to cyber warfare, it appears nothing is off-limits, nothing is too secret, no operation is too sensitive, and no source is too valuable to be used as a prop in this election year posturing.”

Sen. McCain therefore demanded an urgent investigation into the leaks.

“I call on the President to take immediate and decisive action, including the appointment of a special counsel, to aggressively investigate the leak of any classified information on which the recent stories were based and, where appropriate, to prosecute those responsible,” he said.

Sen. McCain indicated that Sen. Carl Levin, chair of the Senate Armed Services Committee, had agreed to hold hearings on the subject.

Beyond the expression of outrage, Sen. McCain’s statement had a number of other interesting features.

He noted the “unacceptable” incongruity of prosecuting lower-level personnel such as Bradley Manning, Jeffrey Sterling or John Kiriakou for allegedly leaking classified information while holding senior officials blameless for what appear to be comparable offenses.

“The fact that this administration would aggressively pursue leaks perpetrated by a 22-year-old Army private in the Wikileaks matter and former CIA employees in other leaks cases but apparently sanction leaks made by senior administration officials for political purposes is simply unacceptable,” Sen. McCain said.

Sen. Chambliss added that “This administration reminds us repeatedly that they are prosecuting more people for leaking classified information than ever before, and I support that effort. But just as we hold ordinary government employees accountable for violating their oaths to protect our Nation’s secrets, we must also hold the most senior administration officials accountable.”

Sen. McCain also made the complicating observation that leaks of classified information are normal, to be expected, and sometimes positively desirable.

“As my colleague well knows, the leaks are part of the way the environment exists in our Nation’s capital, and leaks will always be part of the relationship between media and both elected and appointed officials. I understand that. I think my colleague would agree there have been times where abuses have been uncovered and exposed because of leaks…, and we have always applauded that,” Sen. McCain said.

Further, he noted, “There has also continuously been a problem of overclassification of information so government officials don’t have to–be it Republican or Democratic administrations–discuss what is going on publicly.”  But he did not call for a special counsel to investigate overclassification or propose other measures to address that problem.

Sen. Dianne Feinstein also issued a statement yesterday condemning leaks.  She noted her intention to include new provisions in the pending intelligence authorization bill to require “more forceful investigations of unauthorized disclosures” and “additional authorities and resources for the U.S. government to identify and prosecute” those who leak classified information.

Update: The White House Press Secretary said today that “We are not going to comment on any of the specific information contained in the articles referenced by Senator McCain. This administration takes all appropriate and necessary steps to prevent leaks of classified information or sensitive information that could risk ongoing counterterrorism or intelligence operations. Any suggestion that this administration has authorized intentional leaks of classified information for political gain is grossly irresponsible.”

Defense Department Energy Needs, and More from CRS

The Department of Defense is by far the largest government consumer of energy, having spent around $17 billion on fuel last year, according to a new report from the Congressional Research Service.

“DOD’s reliance on fuel can lead to financial, operational, and strategic challenges and risks,” which are explored in the report.  See Department of Defense Energy Initiatives: Background and Issues for Congress, June 5, 2012.

Other new and updated CRS reports that Congress has barred CRS from publishing online include the following.

Federal Research and Development Funding: FY2013, June 1, 2012

Reaching the Debt Limit: Background and Potential Effects on Government Operations, May 31, 2012

The U.S. Postal Service’s Use of Contractors to Deliver Mail: Background and Recent Developments, May 29, 2012

Department of Homeland Security Appropriations: A Summary of the House- and Senate-Reported Bills for FY2013, June 1, 2012

Health Care Flexible Spending Accounts, June 5, 2012

Ability to Repay, Risk-Retention Standards, and Mortgage Credit Access, June 5, 2012

Bill to Strengthen Whistleblower Protections Advances

Last week the House Oversight Committee reported out the Whistleblower Protection Enhancement Act, a bill that is intended to increase protections for government employees and contractors who “blow the whistle” and disclose illegal or improper government activity.  Among other things, the bill would require intelligence agency heads to advise employees on how to make lawful disclosures of classified information without retribution.

“Whistleblowers are crucial in helping to expose waste, fraud, abuse, mismanagement and criminal activity across the Federal government,” the May 30 House Committee report stated. “Their disclosures can save billions of dollars, and even human lives. It is vital that Congress encourage–not discourage–these well-intentioned individuals from coming forward.”

The pending bill would bolster the comparatively flimsy provisions of the Intelligence Community Whistleblower Protection Act.  Establishing improved channels for lawful disclosures of illegal activity could serve to diminish incentives for unauthorized disclosures of classified information, the Committee suggested.

“These modifications are intended to reduce the often destructive disclosures that occur through anonymous leaks by providing an alternative in which institutional channels can be used by whistleblowers assured of certain safeguards,” the report said.

The House Committee did not approve a provision that would have allowed whistleblowers who have suffered retaliation for their actions to request a jury trial.

Last month, the Senate passed its version of the Whistleblower Protection Enhancement Act by unanimous consent.

“Approximately 450 whistleblower cases and around 2,000 complaints about prohibited personnel practices (including engaging in reprisals against whistleblowers) are filed against the federal government each year,” according to a Senate report on the bill.

Leibowitz Leak Case Said to be Unrelated to Israeli Embassy

Shamai Leibowitz was the first person in the Obama Administration to be charged under the Espionage Act with leaking classified information to the press.  He pleaded guilty and was sentenced to a jail term that he completed last year. (“Jail Sentence Imposed in Leak Case,” Secrecy News, May 25, 2010).

Leibowitz, an Israel-American who has been a vocal, even radical critic of Israeli government policies, was employed as a contract linguist and translator for the Federal Bureau of Investigation.  He was charged with disclosing secret documents concerning “communication intelligence activities of the United States.”  The precise nature of those documents was not disclosed even to the judge who sentenced Mr. Leibowitz.

Last September, the New York Times reported that Mr. Leibowitz had “passed on secret transcripts of conversations caught on FBI wiretaps of the Israeli Embassy in Washington.  Those overheard by the eavesdroppers included American supporters of Israel and at least one member of Congress,” the Times reported, based on information from blogger Richard Silverstein.  See “Leak Offers Look at Efforts by U.S. to Spy on Israel” by Scott Shane, New York Times, September 6, 2011.

But that’s not true, Mr. Leibowitz wrote in his blog today.

“Unfortunately, many people consider whatever they read on the web or in the newspapers as the truth set in stone. What can you do against it? Not much!” he wrote. By the terms of his plea agreement, he is not permitted to publicly discuss the contents of the leaked documents.

“All I can say is that my work had nothing to do with the Israeli Embassy and I certainly never listened to wiretaps of the Israeli Embassy.”

“I never did anything against the State of Israel, as I am a proud Israeli citizen… I have no problem – as was falsely alleged – with Israelis lobbying Congress.”

“Rather, my actions involved a situation when I came across documents that showed the FBI is committing illegal and unconstitutional acts, and instead of following the chain of command, I showed it to a journalist. And for that mistake I paid a price…,” he wrote.

In other respects, Mr. Leibowitz seems to have endured the ordeal of prison with extraordinary equanimity.

“It’s been nearly a year since I was released from a minimum-security prison after spending there one year,” Mr. Leibowitz wrote. “When I was released I did not feel that I regained my freedom because I never lost my freedom in the first place.”

Judicial Vacancies on the Rise, and More from CRS

President Obama began the fourth year of his presidency with more vacant circuit and district court judgeships than when he took office, a new report from the Congressional Research Service observed.

The growing number of vacancies in the federal judiciary and the factors that increasingly impede the successful nomination and confirmation of new judges were examined by CRS.

“District court vacancies have grown in number over the course of the Obama presidency, from 42 judgeships vacant when President Obama took office to 59 at present,” the CRS report said.  During that period 150 district court judges were nominated but only 117 of them were confirmed.

“During the Obama presidency thus far,… fewer Obama district court nominees have been confirmed by the Senate than were confirmed during the first terms of the four preceding Presidents,” CRS found.

A copy of the new CRS report was obtained by Secrecy News. See Nominations to U.S. Circuit and District Courts by President Obama During the 111th and 112th Congresses, June 1, 2012

Other new and updated CRS reports that have not been made readily available to the public include the following.

What Is Systemic Risk? Does It Apply to Recent JP Morgan Losses?, May 24, 2012

SEC Climate Change Disclosure Guidance: An Overview and Congressional Concerns, May 24, 2012

Cybercrime: Conceptual Issues for Congress and U.S. Law Enforcement, May 23, 2012

Mexico’s 2012 Elections, May 23, 2012

Pakistan-U.S. Relations, May 24, 2012

Pakistan: U.S. Foreign Aid Conditions, Restrictions, and Reporting Requirements, June 1, 2012

U.S.-China Diplomacy Over Chinese Legal Advocate Chen Guangcheng, May 29, 2012

Countering Violent Extremism in the United States, May 31, 2012