Posts from October, 2012

The Purpose of National Security Policy, Declassified

The most fundamental purpose of national security policy is not to keep the nation safe from physical attack but to defend the constitutional order.  At least, that is what President Reagan wrote in a Top Secret 1986 directive.

“The primary objective of U.S. foreign and security policy is to protect the integrity of our democratic institutions and promote a peaceful global environment in which they can thrive,” President Reagan wrote in National Security Decision Directive 238 on “Basic National Security Strategy,” which was partially declassified in 2005.

In a list of national security objectives, the directive does note the imperative “to protect the United States… from military, paramilitary, or terrorist attack.”

But that is not the primary objective, according to the Reagan directive.  Defense of the Constitution evidently takes precedence.

The first purpose of national security policy is “to preserve the political identity, framework and institutions of the United States as embodied in the Declaration of Independence and the Constitution,” President Reagan wrote.

This is a remarkable statement, for several reasons.  First, it recognizes that the political identity and institutions of the United States are not simply a given, but that they are vulnerable to many types of threats and must be actively defended and sustained.  This task is not normally assigned the urgency or the priority given to “national security.”

Second, the directive distinguishes between constitutional governance and physical security. Not every measure intended to promote security is constitutional.  And not every act in defense of democratic self-governance is likely to promote public safety.  (The American Revolution was not calculated to increase “homeland security.” Quite the opposite.)  Sometimes a choice between the two is required.  President Reagan indicated what he thought the choice should be.

And third, the directive is remarkable because its rhetoric was so imperfectly realized by the Reagan Administration (and egregiously defied in the Iran-Contra Affair) and has been largely abandoned by its successors.

“Defending our Nation against its enemies is the first and fundamental commitment of the Federal Government,” wrote President George W. Bush in his 2002 National Security Strategy, skipping over President Reagan’s “primary” objective.

Likewise, “As President, I have often said that I have no greater responsibility than protecting the American people,” President Obama wrote in his National Strategy for Counterterrorism.

The Reagan directive invites reflection on what U.S. national security policy would look like if it were truly structured above all “to protect the integrity of our democratic institutions.”

In a section of the directive that was only classified Confidential, President Reagan contrasted the U.S. with the Soviet Union, which was described as its polar opposite.

“Our way of life, founded upon the dignity and worth of the individual, depends on a stable and pluralistic world order within which freedom and democratic institutions can thrive.  Yet, the greatest threat to the Soviet system, in which the State controls the destiny of the individual, is the concept of freedom itself.”

“The survival of the Soviet system depends to a significant extent upon the persistent and exaggerated representation of foreign threats, through which it seeks to justify both the subjugation of its own people and the expansion of Soviet military capabilities well beyond those required for self-defense,” President Reagan wrote.

Numerous Presidential directives from the Reagan Administration have been declassified in recent years and have released by the Reagan Library, though others still remain partially or completely classified. Many of the declassified directives provide a fascinating account that enlarges and enriches the public record of events of the time.

Only last year, for example, a 1985 directive (NSDD-172) on “Presenting the Strategic Defense Initiative” was finally declassified.

This year, NSDD 159 on “Covert Action Policy Approval and Coordination Procedures” (1985) was declassified.

NSDD 207 on “The National Program for Combatting Terrorism” (1986) was declassified in 2008.  Among other things, that directive ordered the Attorney General to “Review the Freedom of Information Act (FOIA) and determine whether terrorist movements or organizations are abusing its provisions.”

Job Growth During the Recovery, and More from CRS

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

Job Growth During the Recovery, updated October 16, 2012

The President’s Emergency Plan for AIDS Relief (PEPFAR): Funding Issues After a Decade of Implementation, FY2004-FY2013, October 10, 2012

Statutes of Limitation in Federal Criminal Cases: An Overview, updated October 1, 2012

Venezuela: Issues for Congress, updated October 16, 2012

Georgia’s October 2012 Legislative Election: Outcome and Implications, October 15, 2012

Iran Sanctions, updated October 15, 2012

Kiriakou Not Allowed to Argue Lack of Intent to Harm U.S.

Updated below

A court ruled this month that former CIA officer John Kiriakou, who is charged with unauthorized disclosures of classified information to the media, will not be permitted to argue at trial that he intended no harm to the United States, or that his entire career testifies to a deep commitment to national security.

Instead, the central question at trial will be whether Kiriakou “had reason to believe” that the information he allegedly released would cause injury to the United States.

The court ruling, which favors the prosecution’s conception of the case, was issued during a sealed hearing on October 1.  The hearing transcript has not been released, but the ruling was disclosed in two footnotes in an October 3 defense pleading that was unsealed last week. [See Update below]

The defense said it would have demonstrated at trial “that Mr. Kiriakou had no intent to harm the United States, and that he had no motive to do so had the Court not ruled such arguments inadmissible” (footnote 7).

Similarly, the defense indicated that “this Court’s October 1, 2012 ruling precludes arguments regarding Mr. Kiriakou’s intent to harm the United States or a defense resting on Mr. Kiriakou’s lack of bad faith” (footnote 4).

The defense said it would continue to “note where information would be relevant to such arguments in order to preserve its ability to appeal the issue should that become necessary.”

Meanwhile, two reporters who were subpoenaed by the Kiriakou defense filed motions to quash the subpoenas.

Attorneys for Matthew Cole, designated “Journalist A” in the Kiriakou indictment, said that the information sought by the Kiriakou defense was protected by a reporter’s First Amendment privilege and that there was no basis to overrule the privilege.

Not only that, but Cole attorneys George Doumar and Mark Zaid added that Mr. Cole would assert a Fifth Amendment right to refuse to testify to avoid self-incrimination.  They said that the government’s past move to prosecute unauthorized receipt and transmission of classified information in the AIPAC case (US v. Rosen) raises the possibility that Cole’s testimony “could subject him to a subsequent federal criminal proceeding. Therefore, he will invoke his Fifth Amendment right to remain silent.”

Washington Post researcher Julie Tate also moved to quash a subpoena for her testimony.  She was identified as the “Researcher 1″ sought by the defense in an article by Josh Gerstein of Politico last week.

Ms. Tate possesses exceptional news gathering skills.  But she has nothing to do with the charges against Mr. Kiriakou, her attorneys said in their October 11 motion to quash.

“The testimony defendant seeks from Ms. Tate has no conceivable relevance to this case. Defendant has been charged with unlawfully disclosing classified information to Journalist A and Journalist B–not to Ms. Tate. Ms. Tate is not mentioned in the Indictment, and there is no evidence in the record that Ms. Tate has ever met or communicated with Mr. Kiriakou….  The law places the burden on the defendant to establish that he has a need for Ms. Tate’s testimony that is so compelling that it outweighs the First Amendment interests at stake. That burden has not been met.”

Scott Shane of the New York Times, who is “Journalist B” in the Kiriakou indictment, is also believed to have been subpoenaed.  But that subpoena is said to have been withdrawn for reasons that are unclear.  In any case, Mr. Shane and the New York Times did not file a motion to quash.

The pending motions to quash the subpoenas will be argued before Judge Leonie M. Brinkema at an October 18 hearing.

Update: On October 16, the Court issued a Memorandum Opinion explaining its ruling on the intent requirements of the Espionage Act in this case. The October 18 hearing on the pending motions to quash was postponed by the Court.

Kiriakou Defense Seeks to Depose Reporters

In a new challenge to press independence, attorneys for John Kiriakou, the former CIA officer who is charged with leaking classified information, have asked a court for permission to depose three journalists in support of his defense.

Two of the journalists are cited in the April 2012 Kiriakou indictment as Journalist A and Journalist B.  Based on the description provided, these are understood to be Matthew Cole, formerly of ABC News, and Scott Shane of the New York Times.  The Kiriakou attorneys also asked for court authorization to depose a third journalist designated as Researcher 1, who “has worked in close association with Journalist A.”

“Based upon communications with each of these individuals and their counsel, all are unwilling to submit to on-the-record interviews or otherwise testify voluntarily,” the newly unsealed September 28 defense motion stated.  “It is likely that all may assert a ‘journalist’s privilege’ if compelled to testify.”

“The applicability of this privilege in this case… is likely to be a point of significant debate,” the motion acknowledged.

The Kiriakou defense said the reporters’ testimony was needed because it could be exculpatory for their client, and that the reporters could affirm that Kiriakou lacked any intent to harm the United States or to benefit a foreign power.

“The defense anticipates the likely elicited testimony to speak directly to whether Mr. Kiriakou had the requisite state of mind or was merely induced into disclosing the information by these witnesses.”

The government has objected to the defense proposal, declaring that “It is also impermissible to disclose classified information to unauthorized persons, including the media.”

But this seems to miss the point.  The Kiriakou defense does not seek to provide classified information to the reporters.  Rather, “the defense intends to elicit answers from these witnesses that are expected to include classified information,” though attorneys said they could not specify in advance what classified information the reporters might possess or reveal.

The defense has also filed an expansive list of categories of classified information that it intends to disclose at trial, which was unsealed and released in redacted form this week.  It includes Mr. Kiriakou’s entire personnel file, records describing his role in the capture of Abu Zubaydah, correspondence with the CIA Publications Review Board and quite a few other topics.

Prosecutors objected that the notice was “vague and overbroad” and smacked of “graymail.”

“The filing purports to provide notice of 75 separate categories of information that the defense asserts it intends to disclose at a public trial, including more than 3000 pages of cited examples, all of which refer to entire sets of or excerpts of documents, without designating what part or portion of any given page it wishes to use,” the government said.

In support of the proposed disclosures, the Kiriakou defense firmly reiterated its view of the relevant legal standard at issue in the case.

“To convict Mr. Kiriakou under [the espionage statute], the government must ‘demonstrate the likelihood of [his] bad faith purpose to either harm the United States or to aid a foreign government,’ and Mr. Kiriakou is entitled to discover, and present, evidence that shows the opposite,” the defense said.

“Evidence that Mr. Kiriakou honorably served his country for fifteen years, placed his own life at risk to protect the national security, and received multiple awards and decorations for his service goes to the heart of the very specific mens rea [intent] element of the Espionage Act, and directly rebuts any evidence that Mr. Kiriakou acted with a ‘bad faith purpose to… harm the United States.”

Obama Issues Directive on Intelligence Community Whistleblowers

President Obama yesterday issued Presidential Policy Directive 19 on “Protecting Whistleblowers with Access to Classified Information.”

The directive generally prohibits official reprisals against an intelligence community employee who makes a “protected disclosure” concerning unlawful activity or “waste, fraud, and abuse.” It does not authorize disclosure of classified information outside of official channels to the press or the public.

The directive was occasioned by the ongoing failure of Congress to extend the protections of the Whistleblower Protection Act to intelligence community employees.

The new presidential directive, reported today by Joe Davidson in the Washington Post, was welcomed by whistleblower advocacy organizations.

“While this directive is not a panacea, it begins to fill a large void in whistleblower protections and lays the framework for more government accountability where it is sorely needed,” said Angela Canterbury of the Project on Government Oversight. “Because the President directs agencies to create procedures for internal review of claims, we will be very interested in the rulemaking and strength of the due process rights in practice.”

“For the first time, intelligence community employees have free speech rights to challenge fraud, waste and abuse within agency channels,” said Tom Devine of the Government Accountability Project, while cautioning that “Until agencies adopt implementing regulations, no one whose new rights are violated will have any due process to enforce them.”

“This policy directive represents a significant breakthrough, but it is no substitute for Congress to legislate permanent rights for national security whistleblowers, with third party enforcement the same as for other employees,” Mr. Devine said.

Violent Behavior Cannot Be Reliably Predicted, Panel Says

The outbreak of violence by individuals who seek to harm other persons or institutions cannot be reliably predicted today, the Defense Science Board said in a new report to the Secretary of Defense.  Instead, efforts to counter violence should focus on prevention and mitigation of the threat.

The new DSB study on “Predicting Violent Behavior” was initiated in response to the 2009 Fort Hood shooting in which thirteen people were killed and dozens wounded allegedly by Army Major Nidal Malik Hasan, who had not previously been identified as a threat.

“The state of the art in physiological and neurological sciences today does not provide useful capability for predicting targeted violence,” the DSB report said.

“While there are promising indicators that might predict aberrant behavior, severe personality disorders, addiction, and other anti-social behaviors, the current state of the science is such that the false positives and false negatives are very high. In addition, developing a practical means to observe any useful indicators may present a significant challenge.”

In the wake of the Fort Hood shootings, the Defense Department attempted to develop lists of problematic behaviors that might signal a propensity to violence.  One such list was the behaviors included in the adjudicative guidelines for granting (or denying) security clearances.

But the use of that list was not justified, the DSB said.  “The Task Force found little to no relationship between the adjudicative guidelines and targeted violence.”

Moreover, “the Task Force also found that indicator lists are most effective in the hands of trained professionals and are not an effective substitute for a more nuanced, comprehensive set of factors developed by threat-management practitioners. If not handled properly and by trained personnel, lists can lead to high false-positives with accompanying stigma, lack of trust, and reluctance to report. Lists also tend to be static and unless continually revisited the list of indicators becomes less likely to identify adaptive perpetrators who will purposefully avoid elements of listed behavior to avoid interdiction.”

Overall, the DSB Panel advised, “prevention as opposed to prediction should be the Department’s goal.  Good options exist in the near-term for mitigating violence by intervening in the progression from violent ideation to violent behavior.”

Presidential Elections and National Security, More from CRS

Presidential elections and the possible transition to a new Administration are potentially a period of heightened national security vulnerability, a new report from the Congressional Research Service says.

The report distinguishes five phases of the presidential election period, and proposes concerns relevant to each.  Thre report provides tabulated listings of US military operations during presidential transition period, and terrorist incident that have occurred during such transitions.  See 2012-2013 Presidential Election Period: National Security Considerations and Options, October 5, 2012.

Some other noteworthy CRS products that Congress has not made publicly available include the following.

Sudan and South Sudan: Current Issues for Congress and U.S. Policy, October 5, 2012

U.S. Textile Manufacturing and the Trans-Pacific Partnership Negotiations, October 5, 2012

Presidential Appointments, the Senate’s Confirmation Process, and Changes Made in the 112th Congress, October 9, 2012

Unemployment: Issues in the 112th Congress, October 5, 2012

Antipoverty Effects of Unemployment Insurance, October 4, 2012

Parties Tangle Over Discovery in Kiriakou Leak Case

The trial of former CIA officer John Kiriakou, who is accused of making unauthorized disclosures of classified information, has yet to begin.  But prosecutors and defense attorneys are now locked in a dispute over what classified information must be provided to the defense and can be cleared for disclosure at trial.

The resolution of the current pre-trial arguments may have a decisive effect not only on the outcome of Mr. Kiriakou’s proceeding but on the future use of the Espionage Act to penalize leaks of classified information.  That’s because the pending disagreements involving the nature of the charge will determine the standard by which the defendant will be judged.

“The government has no obligation to prove, and does not intend to prove, that the defendant [Kiriakou] intended to harm the United States,” prosecutors said in a September 26 motion that was unsealed last week.

“The government must prove only that the defendant had a ‘reason to believe’ that the information ‘could be used to the injury of the United States or to the advantage of any foreign nation’…. The defendant’s intent to injure or serve the United States is not at issue.”

Prosecutors rejected the contrary view of the defense that the government must demonstrate an intent by the defendant to harm the United States.  In a separate pleading last week, they said that view reflects a “misplaced” reliance on a 2006 holding in the AIPAC case (US v. Rosen) in which the court imposed a more stringent “intent” requirement on the prosecution, particularly since the defendants there did not hold security clearances and were dealing with information transmitted orally rather than with classified documents.

Rosen is distinguishable from this case… because Kiriakou transmitted the information electronically, not orally, and Kiriakou had a recognized obligation not to divulge classified, national defense information to those not entitled to receive it,” prosecutors said October 2.  (The latest defense argument on the subject is still under seal.)

But whether an email message is more like “documentary” information or like transcribed “oral” information seems to be an open question for the Kiriakou court to decide, along with other fateful questions about the use of the Espionage Act in leak cases.

US Army Doctrine on Religious Support to Soldiers

Military chaplains in the U.S. Army must have at least a Secret clearance. “This allow them access to the unit operations center and ensures that the chaplain is involved in the unit’s operational planning process.”

A newly updated Army doctrinal publication on Religious Support, which describes the functions of chaplains, explains that “Religion plays an increasingly critical role… across the range of military operations.”

“Chaplains and chaplain assistants continue to sustain programs that nurture ethical decision making and facilitate religious formation and spiritual development as an inseparable part of unit readiness.”

“Throughout our history, chaplains and chaplain assistants have served alongside combat Soldiers, enduring the same hardships, and bearing the same burdens.  They are members of the profession of arms.”

“Chaplains have served in the U.S. Army since the first days of the American Revolution and many have died in combat. These chaplains represented more than 120 separate denominations and faith groups from across America.”

“Six chaplains have been awarded the Medal of Honor for heroism above and beyond the call of duty,” the new Army Field Manual 1-05 noted.

However, “chaplains are noncombatants and do not bear arms.  Chaplains do not have command authority.”

Essentially, chaplains are expected to fulfill “three basic core competencies: nurture the living, care for the wounded, and honor the dead.”