Posts from January, 2013

Drone Programs Spark Budgetary, Privacy, Legal Concerns

The development of unmanned aerial systems (or drones) for military and civilian applications appears to be accelerating faster than the normal policy process can adapt to it.  Aside from festering doubts about the legality, propriety and wisdom of their routine use in targeted killing operations, drone programs are beset by budgetary confusion, and a host of privacy and other legal problems are poised to emerge with the expanded use of drones in domestic airspace.

Already there is a bewildering multiplicity of drone development programs, said Sen. Tom Coburn (R-OK) on the Senate floor yesterday.

“There is no question in terms of our warfighting and our intelligence services that our unmanned capability has been a tremendous asset to us,” Sen. Coburn said. “But somebody needs to ask the question, Why do we have 15 different sets of programs run from 5 different agencies costing us $37 billion over 5 years? Where is the explanation for that? Where is the idea that we might concentrate expertise in one or two areas or three areas or four? But to have 15 separate programs means we are wasting money and getting less out of the research and less out of the dollars we invested than if we were to streamline those programs and limit them to targeted objectives. But we refuse to do that.”

Meanwhile, “Perhaps the most contentious issue concerning the introduction of drones into U.S. airspace is the threat that this technology will be used to spy on American citizens,” said a new report from the Congressional Research Service.

“With the ability to house high-powered cameras, infrared sensors, facial recognition technology, and license plate readers, some argue that drones present a substantial privacy risk. Undoubtedly, the government’s use of drones for domestic surveillance operations implicates the Fourth Amendment and other applicable laws.”

“Additionally,” CRS said, “there are a host of related legal issues that may arise with this introduction of drones in U.S. skies. These include whether a property owner may protect his property from a trespassing drone; how stalking, harassment, and other criminal laws should be applied to acts committed with the use of drones; and to what extent federal aviation law could preempt future state law.”

A copy of the CRS report was obtained by Secrecy News.  See Integration of Drones into Domestic Airspace: Selected Legal Issues, January 30, 2013.

See also Unmanned Aircraft Systems (UAS): Manufacturing Trends, January 30, 2013.

Additional resources on drone policy issues are available from the Electronic Privacy Information Center here.

Stealing Trade Secrets, and More from CRS

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

Stealing Trade Secrets and Economic Espionage: An Overview of U.S.C. 1831 and 1832, January 28, 2013

Cybersecurity: Cyber Crime Protection Security Act (S.2111) — A Legal Analysis, January 28, 2013

Unemployment Insurance: Legislative Issues in the 113th Congress, January 25, 2013

The Temporary Assistance for Needy Families (TANF) Block Grant: Responses to Frequently Asked Questions, January 22, 2013

Latin America and the Caribbean: Fact Sheet on Leaders and Elections, January 29, 2013

Mexico and the 112th Congress, January 29, 2013

U.S. Sanctions on Burma: Issues for the 113th Congress, January 11, 2013

Trans-Pacific Partnership (TPP) Countries: Comparative Trade and Economic Analysis, January 29, 2013

Rise in Federal Prison Population is “Unprecedented,” Says CRS

“Since the early 1980s, there has been a historically unprecedented increase in the federal prison population,” a new report from the Congressional Research Service observes.

“The number of inmates under the Bureau of Prisons’ (BOP) jurisdiction has increased from approximately 25,000 in FY1980 to nearly 219,000 in FY2012. Since FY1980, the federal prison population has increased, on average, by approximately 6,100 inmates each year. Data show that a growing proportion of inmates are being incarcerated for immigration- and weapons-related offenses, but the largest portion of newly admitted inmates are being incarcerated for drug offenses.”

“Changes in federal sentencing and correctional policy since the early 1980s have contributed to the rapid growth in the federal prison population,” CRS explained. “These changes include increasing the number of federal offenses subject to mandatory minimum sentences; changes to the federal criminal code that have made more crimes federal offenses; and eliminating parole.”

A number of secondary problems are attributable to the rapid growth in incarceration, CRS said, including rising financial costs, overcrowding, and deteriorating prison infrastructure.

“Should Congress choose to consider policy options to address the issues resulting from the growth in the federal prison population, policymakers could choose options such as increasing the capacity of the federal prison system by building more prisons, investing in rehabilitative programming, or placing more inmates in private prisons.”

Alternatively, CRS said, “Policymakers might also consider whether they want to revise some of the policy changes that have been made over the past three decades that have contributed to the steadily increasing number of offenders being incarcerated. For example, Congress could consider options such as (1) modifying mandatory minimum penalties, (2) expanding the use of Residential Reentry Centers, (3) placing more offenders on probation, (4) reinstating parole for federal inmates, (5) expanding the amount of good time credit an inmate can earn, and (6) repealing federal criminal statutes for some offenses.”

A copy of the new report was obtained by Secrecy News. See The Federal Prison Population Buildup: Overview, Policy Changes, Issues, and Options, January 22, 2013.

Some other noteworthy new and updated CRS reports that Congress has not made publicly available include the following.

The Increase in Unemployment Since 2007: Is It Cyclical or Structural?, January 24, 2013

Can Contractionary Fiscal Policy Be Expansionary?, January 11, 2013

First-Term Members of the House of Representatives and Senate, 64th-113th Congresses, January 25, 2013

American Jihadist Terrorism: Combating a Complex Threat, January 23, 2013

Armenia, Azerbaijan, and Georgia: Political Developments and Implications for U.S. Interests, January 24, 2013

The Endangered Species Act and “Sound Science”, January 23, 2013

ODNI Budget Justifications, 2011-2013 (Redacted)

“Integrating intelligence will continue to be the organizing principle for the future,” according to the FY2013 Congressional Budget Justification Book for the Office of the Director of National Intelligence.  “The takedown of Usama Bin Ladin provided a prime example of what can be accomplished when the IC [intelligence community] works together toward a single goal, but every day the benefits of integration are visible throughout the IC.”

Unclassified portions of the FY 2013 ODNI budget book, which was submitted to Congress in February 2012, were released by ODNI last week under the Freedom of Information Act.

While most programmatic information and almost all quantitative data were withheld, the redacted document still contains a few points of interest.  For example:

“While we can never eliminate all risk of unauthorized release of classified information,” it states, “structural reforms have been implemented to improve technical security capabilities and information access policies” (p. 2).

ODNI support to the Nuclear Command and Control System is noted (p. 83), as is its support to continuity of government activities (p. 84).

This year the IC Inspector General expects to “develop an IC-wide Whistleblower Protection process and program as required under the National Security Act” (pp. 99-100).

ODNI will “develop and implement an enterprise approach to foreign intelligence liaison relationships” (p. 109) and will “continue to leverage trade associations, key industry partners, NGOs, and academic institutions to improve lines of communication to the IC” (p. 110).

In addition to the FY 2013 document, ODNI also released heavily redacted versions of its budget justification books for FY 2011 and FY 2012.

In his capacity as Security Executive Agent, the DNI is preparing a policy to govern the use of polygraph testing throughout the intelligence community. Judging from an October 2012 draft obtained by Marisa Taylor of McClatchy Newspapers, the new policy consolidates existing practices more than it charts a new course.  See “After criticism, Obama officials quietly craft new polygraph policy,” January 24.

As Security Executive Agent, the DNI is also now responsible for classified information non-disclosure agreements, foreign travel reporting requirements, and other security clearance-related matters.  Last week, ODNI invited public comment on the contents of Standard Form 714, the Financial Disclosure Report which government employees and contractors must submit as a condition of access to certain types of classified information.

Maritime Disputes in East Asia, and More from CRS

New and updated reports from the Congressional Research Service that Congress has declined to make broadly available to the public include the following.

Maritime Territorial Disputes in East Asia: Issues for Congress, January 23, 2013

Algeria: Current Issues, January 18, 2013

Malawi: Recent Developments and U.S. Relations, December 11, 2012

Kosovo: Current Issues and U.S. Policy, January 23, 2013

Air Quality: EPA’s 2013 Changes to the Particulate Matter (PM) Standard, January 23, 2013

Department of Defense Food Procurement: Background and Status, January 24, 2013

Presidential Appointments to Full-Time Positions in Independent and Other Agencies During the 111th Congress, January 22, 2013

An Analysis of Where American Companies Report Profits: Indications of Profit Shifting, January 18, 2013

Former CIA Officer Kiriakou Sentenced for Leak

Updated below

Former CIA officer John Kiriakou was sentenced today to 30 months in prison for a violation of the Intelligence Identities Protection Act after he pleaded guilty to one count of identifying a covert agent.

Although the sentence is less than that prescribed by federal sentencing guidelines, the government said that it considers the reduced penalty “reasonable.”

In a presentencing memorandum for the defense, Mr. Kiriakou’s attorneys said that his offense should be seen in the context of his lifelong commitment “to public service and the defense of America’s national security.”

“In the course of his service to the United States and the Central Intelligence Agency, Mr. Kiriakou placed himself in harm’s way on countless occasions, earning the CIA’s Exceptional Service Award no fewer than ten times,” the defense memorandum said.

Although Mr. Kiriakou accepted full responsibility for his actions, the defense said that he had been duped into making the unauthorized disclosure that led to his prosecution.

“In 2006, Journalist A told Mr. Kiriakou that he was working on a book about the Abu Omar rendition in Milan. That was false. Journalist A has never published a book on that subject and the defense is aware of no evidence that he was ever working on one.” [But see update below].

“In reality, unknown to Mr. Kiriakou, Journalist A was acting as a private investigator on behalf of lawyers representing terrorist detainees in Guantanamo Bay, Cuba, and was forwarding the information he received from Mr. Kiriakou, as well as information he received from many other individuals, to another private investigator working with the detainees’ lawyers. Mr. Kiriakou now realizes that he made a very serious mistake in passing any information to Journalist A, but he would not have done so had he known how Journalist A would make use of that information,” the defense memorandum said.

The defense noted that “Mr. Kiriakou has fully and forthrightly accepted responsibility for his actions and recognizes the seriousness of the crime to which he has pled guilty.  Yet while many will never know Mr. Kiriakou apart from this prosecution, the incident that led to this moment cannot undo the reality of Mr. Kiriakou’s life in full– a life dedicated to the values of freedom, decency, public service, and love of country.  As the government concedes, although Mr. Kiriakou’s crime was unquestionably serious, he was never motivated by any desire to harm the United States, national security, the CIA’s critical mission abroad, or any individual person.”

A petition asking President Obama to pardon Mr. Kiriakou or commute his sentence has already been signed by thousands of supporters.

After Vice Presidential aide Scooter Libby was convicted of perjury in connection with the unauthorized disclosure of the identity of CIA officer Valerie Plame in 2007 and sentenced to 30 months in jail, his sentence was promptly commuted by President George W. Bush.

Update: Although the Kiriakou defense team said it knew of no evidence that Journalist A was working on a book about rendition, Josh Gerstein noted that there is such evidence here and here.

International Tax Havens, 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.

Tax Havens: International Tax Avoidance and Evasion, January 23, 2013

An Overview of the Tax Provisions in the American Taxpayer Relief Act of 2012, January 20, 2013

Receipt of Unemployment Insurance by Higher-Income Unemployed Workers (“Millionaires”), January 23, 2013

Summary Report: Congressional Action on the FY2013 Disaster Supplemental, January 22, 2013

FY2013 Supplemental Funding for Disaster Relief: Summary and Considerations for Congress, January 23, 2013

Congressional Commissions: Overview, Structure, and Legislative Considerations, January 22, 2013

Congressional Careers: Service Tenure and Patterns of Member Service, 1789-2013, January 3, 2013

Global Security Contingency Fund (GSCF): Summary and Issue Overview, January 22, 2013

Bosnia and Herzegovina: Current Issues and U.S. Policy, January 24, 2013

Mexico’s New Administration: Priorities and Key Issues in U.S.-Mexican Relations, January 16, 2013

Reauthorization of the FISA Amendments Act, January 2, 2013

Pentagon Relaxes Censorship of Afghan War Memoir

When U.S. Army Lt. Col. Anthony Shaffer wrote a memoir of his service as an intelligence officer in Afghanistan called “Operation Dark Heart” in 2010, the Department of Defense intervened to block publication, asserting that the manuscript contained classified information.  An initial print run of the book was destroyed, and the work was republished with hundreds of passages redacted.  However, a limited number of uncensored review copies and early sales editions have remained in circulation.

Now the Pentagon has decided that many of the claimed redactions are no longer necessary, and may be disclosed in future editions of the book.

“The U.S. Government has completed its security review of the manuscript, including the 433 passages that were redacted from the Thomas Dunne Books/St. Martin’s Press edition of September 2010,” wrote Mark M. Langerman, Chief of the DoD Office of Security Review, in a January 18, 2013 letter.  “The Government determined that information contained in 198 of the redacted passages has been properly declassified in accordance with Executive Order 13526. The other redacted passages, however, were found to contain classified information” and may not be disclosed.

The current status of each of the original redactions was presented in a chart accompanying Mr. Langerman’s letter.  Those who purchased the censored book can now find out what is behind at least some of the blacked-out sections.

Thus, a formerly classified reference on page 2 to “[deleted], the hub for U.S. operations in country” is now acknowledged to refer to “Bagram Air Base.”

Interestingly, the government does not admit that it overclassified any of this information, or classified it unnecessarily. On the contrary, officials filed sworn declarations in May 2011 indicating that the information was properly classified.  But that was 20 months ago, and times change.

“It is not at all unusual that, as circumstances change, the classification status of information changes,” government attorneys wrote yesterday in a pending lawsuit brought by author Shaffer.  They insisted that the information had now been declassified, not that it was originally misclassified, and they denied any implication of bad faith.

Of equal or greater interest is what remains classified, even today.  The use of the word “Fort” to refer to “NSA headquarters at Fort Meade, Md” on page xvi and elsewhere in the book is still classified, perhaps because the role of signals intelligence in Mr. Shaffer’s account is suppressed.  So is the author’s adopted cover name, “Christopher Stryker.”  A side-by-side comparison of several pages from the book in censored and uncensored form is posted here.

The author, or readers of the book, may agree with the redactions or disagree with them, the government says, but that doesn’t matter! Their perspectives are simply irrelevant to the classification process.

“There is no need to establish procedures by which the plaintiff or his ‘experts’ may submit their opinions regarding the classified information because any declaration or submission disputing the substance of the Government’s classification experts’ proper determinations is due no weight,” the government attorneys wrote in yesterday’s filing.

“Courts have repeatedly, and necessarily, rejected the views of plaintiffs on the question of whether a particular disclosure may harm national security.”

“Instead, the only relevant information that the plaintiff can provide is citations to specific instances in which the Government has officially released the information at issue.” The views of outside experts (or “experts”) don’t count.

In other words, the classification process is a pure expression of executive branch authority. It is not an empirical process or a substantive matter that outsiders can meaningfully participate in or try to rebut.

But to the extent that it is beyond debate or challenge, one may say that the classification process has no intrinsic claim to respect from anyone who has not already signed a non-disclosure agreement.

 

ODNI Releases FY 2009 Budget Book (Redacted)

The Office of the Director of National Intelligence has released a heavily redacted version of its Congressional Budget Justification Book for Fiscal Year 2009 in response to a request under the Freedom of Information Act.

Although most of the substance of the document has been withheld, a number of details of interest (to some) have been preserved.  So, for example, the glossary explains that “CAPNet is a secure private network permitting electronic connectivity between the Legislative Branch of the Federal Government, principally the intelligence oversight committees, and certain intelligence community personnel, primarily in the legislative liaison offices.”

Budget books for several subsequent years have also been released and will be posted in coming days.

Prosecutorial Discretion in Immigration Cases, and More from CRS

“Under the Federal criminal justice system, the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute for apparent violations of Federal criminal law,” says the U.S. Attorneys’ Manual. “The prosecutor’s broad discretion in such areas as initiating or foregoing prosecutions, selecting or recommending specific charges, and terminating prosecutions by accepting guilty pleas has been recognized on numerous occasions by the courts.” (Chapter 9-27).

Although prosecutors enjoy broad discretion concerning whether and whom to prosecute, there are limits, the Manual says, and consequences for prosecutorial overreach:  “Serious, unjustified departures from the principles set forth herein are [to be] followed by such remedial action, including the imposition of disciplinary sanctions, when warranted, as are deemed appropriate.”

(After the execution of Socrates, remorseful Athenians rose up against his three prosecutors, according to the uncorroborated account of Diogenes Laertius.  Meletus was stoned to death, while Anytus and Lycon were banished.)

The exercise of prosecutorial discretion is discussed in a new report from the Congressional Research Service, which focuses particularly on immigration cases.

The report “addresses the constitutional and other foundations for the doctrine of prosecutorial discretion, as well as the potential ways in which prosecutorial discretion may be exercised in the immigration context.” It also considers “potential constitutional, statutory, and administrative constraints upon the exercise of prosecutorial discretion.”

See Prosecutorial Discretion in Immigration Enforcement: Legal Issues, January 17, 2013.

Some other new and updated CRS products that Congress has not authorized CRS to release to the public include these:

Chemical Facility Security: Issues and Options for the 113th Congress, January 14, 2013

Nonstrategic Nuclear Weapons, December 19, 2012

The Protection of Classified Information: The Legal Framework, January 10, 2013

Crisis in Mali, January 14, 2013