Posts from September, 2012

Has Iran Violated the NPT? And More from CRS

Has Iran violated the Nuclear Nonproliferation Treaty?  The answer is “unclear,” says the Congressional Research Service in a newly updated report.  “The treaty does not contain a mechanism for determining that a state-party has violated its obligations.  Moreover, there does not appear to be a formal procedure for determining such violations.”

The CRS report reviews the specific allegations that Iran’s nuclear activities are in violation of its obligations under the NPT, and examines the legal framework for evaluating such allegations.  See Iran’s Nuclear Program: Tehran’s Compliance with International Obligations, September 18, 2012.

Some other new CRS reports that Congress has not made available to the public include the following.

Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues, September 17, 2012

Unemployment Insurance: Programs and Benefits, September 19, 2012

Medical Loss Ratio Requirements Under the Patient Protection and Affordable Care Act (ACA): Issues for Congress, September 18, 2012

Marine Corps Amphibious Combat Vehicle (ACV) and Marine Personnel Carrier (MPC): Background and Issues for Congress, September 11, 2012

Production of [DELETED] Weapons, 1981

For decades, President Reagan’s 1981 National Security Decision Directive (NSDD) 7 remained entirely classified.  According to a 1999 listing of Reagan NSDDs issued by the National Security Council, even the title of NSDD 7 was classified.

In 2008, the document was partially declassified, bearing the title “[deleted] Weapons.”  It stated:  “The production and stockpiling of [deleted] weapons is authorized with stockpiling being restricted to the United States [deleted].”

What is this all about?  What mysterious weapons were to be produced and stockpiled that could not be acknowledged three decades later?

In all likelihood, said Hans Kristensen of FAS, the deleted term describing the weapons is “enhanced radiation.”  Two enhanced radiation weapons started production in August/September 1981, he noted: the W70 (Lance warhead) and the W79 (artillery shell).

That likelihood is actually a certainty, said our colleague Allen Thomson, who pointed to the 1991 Bush directive NSD 59.  The Bush directive, declassified in 1996, listed the title of NSDD 7 with no redactions:  Enhanced Radiation Weapons.

Surveillance of Journalists: A Look Back

“The Department of Defense does not conduct electronic or physical surveillance of journalists,” Pentagon press spokesman George E. Little wrote in a September 6 response to reporters who had questioned the scope of official monitoring of their work.

The DoD disavowal of active surveillance is almost certainly true, as far as it goes.  Even if there were surveillance to be done, it would probably not be performed by DoD.  But the reporters’ question was not a frivolous one.  There is an historical basis for their concern.

The celebrated CIA “family jewels” report on illegal Agency activities prior to the mid-1970s that was finally released in full in 2007 included descriptions of CIA operations to surveil reporters in order to identify their confidential sources.

The operation known as CELOTEX I was summarized as follows:  “At the direction of the DCI, a surveillance was conducted of Michael Getler of the Washington Post during the periods 6-9 October, 27 October – 10 December 1971 and on 3 January 1972. In addition to physical surveillance, an observation post was maintained in the Statler Hilton Hotel where observation could be maintained of the building housing his office. The surveillance was designed to determine Getler’s sources of classified information of interest to the Agency which had appeared in a number of his columns.”

CELOTEX II was described this way:  “At the direction of the DCI, surveillance was conducted of Jack Anderson and at various times his ‘leg men,’ Britt Hume, Leslie Whitten, and Joseph Spear, from 15 February to 12 April 1972. In addition to the physical surveillance, an observation post was maintained in the Statler Hilton Hotel directly opposite Anderson’s office. The purpose of this surveillance was to attempt to determine Anderson’s sources for highly classified Agency information appearing in his syndicated columns.”

The results of these surveillance activities were not reported in the CIA document.

Government attorneys this week reiterated their argument that New York Times reporter James Risen “does not have a ‘reporter’s privilege’ to refuse to identify his source” in the prosecution of former CIA officer Jeffrey Sterling, who is accused of disclosing classified information to Risen.  The attorneys cited a new ruling in another Circuit that rejected a similar claim of privilege, and they urged the Fourth Circuit Court of Appeals to affirm their position.

Poverty in the United States, and More from CRS

“In 2011, 46.2 million people were counted as poor in the United States, the same number as in 2010 and the largest number of persons counted as poor in the measure’s 53-year recorded history,” according to a timely new report from the Congressional Research Service.  See Poverty in the United States: 2011, September 13, 2012.

Other new and newly updated CRS reports that have not been made publicly available include the following.

Intelligence Authorization Legislation: Status and Challenges, updated September 18, 2012

Latin America and the Caribbean: Fact Sheet on Leaders and Elections, updated September 17, 2012

Carbon Tax: Deficit Reduction and Other Considerations, September 17, 2012

Energy Tax Incentives: Measuring Value Across Different Types of Energy Resources, updated September 18, 2012

Congressional Responses to Selected Work Stoppages in Professional Sports, updated September 17, 2012

Length of Time from Nomination to Confirmation for “Uncontroversial” U.S. Circuit and District Court Nominees: Detailed Analysis, September 18, 2012

Whistleblower Protections Under Federal Law, and More from CRS

New reports from the Congressional Research Service that have not been made available to the public include the following.

Whistleblower Protections Under Federal Law: An Overview, September 13, 2012

Post-Employment, “Revolving Door,” Laws for Federal Personnel, September 13, 2012

The Corporate Income Tax System: Overview and Options for Reform, September 13, 2012

Iran Sanctions, updated September 13, 2012

Egypt: Background and U.S. Relations, updated September 13, 2012

An Army Introduction to Open Source Intelligence

A new U.S. Army publication provides an introduction to open source intelligence, as understood and practiced by the Army.

“Open-source intelligence is the intelligence discipline that pertains to intelligence produced from publicly available information that is collected, exploited, and disseminated in a timely manner to an appropriate audience for the purpose of addressing a specific intelligence and information requirement,” the document says.

“The world is being reinvented by open sources. Publicly available information can be used by a variety of individuals to [achieve] a broad spectrum of objectives. The significance and relevance of open-source intelligence (OSINT) serve as an economy of force, provide an additional leverage capability, and cue technical or classified assets to refine and validate both information and intelligence.”

See “Open-Source Intelligence,” Army Techniques Publication (ATP) 2-22.9, July 2012.

The new manual is evidently intended for soldiers in the field rather than professional analysts, and it takes nothing for granted.  At some points, the guidance that it offers is remedial rather than state of the art.

For example, “if looking for information about Russian and Chinese tank sales to Iraq, do not use ‘tank’ as the only keyword in the search. Instead, use additional defining words such as ‘Russian Chinese tank sales Iraq’.”

But the manual reflects the ongoing maturation of open source intelligence (OSINT), and it contains several observations of interest.

“The reliance on classified databases has often left Soldiers uninformed and ill-prepared to capitalize on the huge reservoir of unclassified information from publicly available information and open sources,” the manual states.

Classification can also be a problem in open source intelligence, however, and “concern for OPSEC [operations security] can undermine the ability to disseminate inherently unclassified information.”

“Examples of unclassified information being over-classified [include] reported information found in a foreign newspaper [and a] message from a foreign official attending an international conference.”

Therefore, pursuant to Army regulations, “Army personnel will not apply classification or other security markings to an article or portion of an article that has appeared in a newspaper, magazine, or other public medium,” although the resulting OSINT analysis might be deemed “controlled unclassified information.”

Curiously, the new manual itself is blocked from access by the general public on Army websites (such as this one). But an unrestricted copy was released by the Army on request.

Somewhat relatedly, the Department of Defense this week published a new Instruction on DoD Internet Services and Internet-Based Capabilities, DODI 8550.01, September 11, 2012.

House Votes to Reauthorize FISA Amendments Act

The House of Representatives voted yesterday to renew the Foreign Intelligence Surveillance Act (FISA) Amendments Act for five years.

The Act generally authorizes electronic surveillance of non-U.S. persons and U.S. persons who are believed to be outside the United States, while prohibiting the “intentional” targeting of persons in the U.S. without an individualized warrant, seemingly leaving a wide opening for unintentional or incidental collection.  This and other features of the Act prompted concerns about the expansion of surveillance authority and the erosion of constitutional protections.

But such concerns, however eloquently expressed by a few dissenting Members, gained little traction.  The House rebuffed efforts to increase reporting on implementation of the law or to shorten the duration of its renewal, and approved the measure by a vote of 300-118.

In the Senate, Sen. Ron Wyden has placed a hold on the bill in an attempt to compel disclosure of the current scale of government interception of U.S. communications, which the Administration says it cannot provide.

The Congressional Research Service has produced a new report on Reauthorization of the FISA Amendments Act, dated September 12, 2012.

The ACLU is challenging the constitutionality of the Act in a case that will be heard by the U.S. Supreme Court on October 29.

Court Lifts Gag Order on Former Secrecy Czar

A federal judge this week granted permission to J. William Leonard, the former director of the Information Security Oversight Office, to discuss three documents that were at issue in the trial of former National Security Agency official Thomas Drake.

Mr. Leonard, an expert witness for the Drake defense, had sought permission to publicly challenge the legitimacy of the classification of one of the documents cited in the indictment against Mr. Drake, which was ultimately dismissed.

The government had opposed the motion to lift the non-disclosure obligations in the protective order that bound Mr. Leonard.  Government attorneys argued that Mr. Leonard had no standing to make such a request, which was filed by Mr. Drake’s public defenders James Wyda and Deborah L. Boardman.  The government also said the request should be denied in order “to prevent a flood of similar claims by non-parties in other completed cases.”  Instead, prosecutors suggested, Mr. Leonard could file a Freedom of Information Act request for the records in question.

But Judge Richard D. Bennett said that “the government’s arguments in this case are inapposite.” Even if the documents were made available to Mr. Leonard under FOIA, “he would not have been permitted to discuss them as he would remain bound by this Court’s Protective Order.”

Judge Bennett therefore formally lifted the Protective Order and granted Mr. Leonard permission to publicly discuss his concerns.

The documents themselves, and the complaint that Mr. Leonard submitted to the Information Security Oversight Office, were released by the National Security Agency under FOIA in July.  (“Defense, Critique of NSA Classification Action Released,” Secrecy News, July 30.)

The complaint itself is still pending, and is awaiting a formal response from the Department of Justice, said the current ISOO director, John P. Fitzpatrick.

The challenge presented by Mr. Leonard extends well beyond the Drake case or the secrecy practices of the National Security Agency.  Essentially, the question posed by the former ISOO director’s complaint is whether there is any threshold beyond which classification of information is so completely unjustified as to trigger third-party intervention to correct the problem.  As of today, such corrective mechanisms are weak or nonexistent.

Kim Leak Prosecution Hits a Bump in the Road

Prosecutors in the pending leak case of former State Department contractor Stephen Kim said they had discovered that the classified information Mr. Kim is accused of disclosing to a reporter without authorization had been circulated within the government more broadly than they had realized.

That discovery requires further investigation and disclosure to the defense, prosecutors said in a recent status report to the court.

“In short, the undersigned prosecutors have learned that the intelligence report identified in the Indictment had been used for purposes of drafting a separate intelligence product, which product was never finalized prior to the unauthorized disclosure at issue,” the status report said. “Some of the drafting occurred within the time period deemed relevant by the Parties.”

“The undersigned prosecutors are investigating this drafting process to determine its scope and what discoverable material may arise from it. The undersigned prosecutors have advised that their review of this additional information could take two additional months to complete before any materials related thereto are produced to the defense. While counsel for the defendant have not been informed of the content of this new information, counsel reasonably expect that it could have a material impact on their understanding of the government’s case, and likely will prompt additional discovery requests.”

Limited Data Make Secrecy Harder to Measure, Manage

A new annual report on government secrecy discusses the quantitative and qualitative obscurity of government secrecy policy which makes secrecy hard to evaluate and to control.

The report was published by OpenTheGovernment.org, a coalition of some 80 organizations concerned with government transparency.

“Measuring what it is we actually know about the openness of the American government is not a straightforward endeavor,” the report says. “Information available to the public provides inconsistent and partial indicators about whether our government is becoming more, or less, open. In some areas, the information needed to know what the Executive Branch is doing and to hold it accountable to the public is not available at all.”

Even where quantitative data are available, as in the case of the number of classification decisions published annually by the Information Security Oversight Office, their qualitative significance is unclear, the report said.

“Having information about the quantity of secrets kept by the federal government tells us nothing about their quality.”

The OpenTheGovernment.org report assembled the quantitative indicators of government secrecy and disclosure that could be obtained, and also discussed several categories that should be available but are not.

“Good information is essential for the public to know what interests are influencing government policies, and more,” said Patrice McDermott, executive director of OpenTheGovernment.org. “Partial and mis- information, however, erodes accountability and prevents the public from having an informed debate about critical national issues.”