Posts from April, 2013

Journal of National Security Law & Policy

The latest issue of the Journal of National Security Law & Policy has just been published.

Titles of likely interest include Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information by Heidi Kitrosser, and Unknotting the Tangled Threads of Watergate Lore, a review of Max Holland’s book Leak written by M.E. (Spike) Bowman, among others.

Defense Support of Civilian Law Enforcement Agencies

In last Friday’s Federal Register the Department of Defense published a final rule on Defense Support of Civilian Law Enforcement Agencies. The rule specifies and defines the support that DoD may provide to federal, state and local law enforcement agencies, “including responses to civil disturbances.”

“The President is authorized by the Constitution and laws of the United States to employ the Armed Forces of the United States to suppress insurrections, rebellions, and domestic violence under various conditions and circumstances,” the new rule states.

“Planning and preparedness by the Federal Government, including the Department of Defense, for civil disturbances is important due to the potential severity of the consequences of such events for the Nation and the population. The employment of Federal military forces to control civil disturbances shall only occur in a specified civil jurisdiction under specific circumstances as authorized by the President, normally through issuance of an Executive order or other Presidential directive authorizing and directing the Secretary of Defense to provide for the restoration of law and order in a specific State or locality.”

The new rule, which forms part of the Code of Federal Regulations, is almost identical to DoD Instruction 3025.21 on “Defense Support of Civilian Law Enforcement Agencies” that was issued on February 27, 2013 (noted by Public Intelligence on April 11).

Number of Security Cleared Personnel Grew in 2012

The number of people who are cleared for access to classified information continued to rise in 2012 to more than 4.9 million, according to a new annual report from the Office of the Director of National Intelligence.  This is only the third official tally of government-wide security clearance activity ever prepared, and it is the largest reported to date.

The total number of cleared personnel as of October 1, 2012 was 4,917,751.  Although the number of contractors who held a clearance declined in 2012, the number of eligible government employees grew at a faster rate, yielding a net increase of 54,199 clearances, or 1.1 percent, from the year before.

It is possible that there were more security-cleared Americans at some points during the Cold War, when there was a larger standing military with more cleared military personnel than there are today.  But until 2010, no comprehensive account of the size of the security clearance system had ever been produced.  So the new 4.9 million figure is the largest official figure ever published.

A 2009 report from the Government Accountability Office had estimated that 2.4 million people held clearances, excluding some intelligence agency employees.  But even allowing for one or two hundred thousand cleared intelligence personnel, this turned out to underestimate the case by nearly 50%.  A 1995 GAO report presented an estimate of 3.2 million persons as of 1993.

(Strictly speaking, the new ODNI report does not present data on the number of clearances but rather on the number of people who have been investigated and deemed “eligible” for a clearance, regardless of whether or not they have been granted access to classified information in fact. In addition to a security clearance, an individual is also supposed to have a “need to know” particular classified information in order to gain access to it.)

During 2012, the CIA denied 4.9% of the clearance applications that it reviewed, the report indicated, while NRO denied 5.9% and NSA denied 5.7%.  Several of the intelligence agencies reported that they had individual security clearance investigations that had remained open in excess of one year.

“The IC faces challenges in clearing individuals with unique or critical skills — such as highly desirable language abilities — who often have significant foreign associations that may take additional time to investigate and adjudicate,” the new report said.

The report notes that it was prepared in fulfillment of a requirement in the 2010 intelligence authorization act.  It does not mention the fact that the DNI asked Congress to cancel that requirement last year.

The DNI’s request to eliminate the report was initially approved by the Senate Intelligence Committee (as first noted by Marcy Wheeler of the Emptywheel blog). But then several public interest groups wrote to ask the House and Senate Intelligence Committees to preserve the annual reporting requirement, arguing that it provided unique public insight into the size and operation of the security clearance system. The Committees concurred, and the reporting requirement was retained.

In the absence of similar public attention and intervention, another intelligence community report to Congress on proliferation of weapons of mass destruction was discontinued at the DNI’s request, to the dismay of students of arms control.

A pending change to the security clearance process is intended to encourage mental health counseling, but some say it may generate new confusion, reported Josh Gerstein in Politico today.

U.S. Aid to Pakistan, and More from CRS

Some lightly updated reports produced lately by the Congressional Research Service include the following.

Direct Overt U.S. Aid Appropriations for and Military Reimbursements to Pakistan, FY2002-FY2014, April 11, 2013

Sensitive Covert Action Notifications: Oversight Options for Congress, April 10, 2013

Covert Action: Legislative Background and Possible Policy Questions, April 10, 2013

Navy Ship Names: Background For Congress, April 8, 2013

Navy Littoral Combat Ship (LCS) Program: Background and Issues for Congress, April 5, 2013

Intelligence Budget Requests for 2014 Disclosed

Some $4 billion is being cut from the National Intelligence Program this year as a result of sequestration, Director of National Intelligence James Clapper told the House Intelligence Committee at a hearing today. He said that the consequences will be severe. Acquisition programs will be “wounded,” ongoing programs will have to be curtailed, and the ensuing degradation of intelligence capabilities will be “insidious” with unforeseeable effects, he said.

Meanwhile, the Office of the Director of National Intelligence disclosed yesterday that the FY 2014 budget request for the National Intelligence Program (NIP) is $48.2 billion.  However, this figure excludes the pending funding request for Overseas Contingency Operations (OCO), so it cannot be directly compared to previous budget allocations, such as the $53.9 billion that was appropriated in FY 2012, or the $52.6 billion that was requested for FY 2013. A summary of the FY 2014 budget request is here.

The Secretary of Defense also disclosed the FY 2014 budget request for the Military Intelligence Program (MIP) yesterday, which was $14.6 billion. It also did not include the funding request for Overseas Contingency Operations.  This is a slight decline from the $14.7 billion base request for the MIP last year.  (An additional $4.5 billion was known to have been requested for OCO in the past fiscal year.)

Total intelligence spending (NIP plus MIP) peaked in Fiscal Year 2010, and has been on a downward slope since then. Intelligence budget disclosures from the last several years are tabulated here.

The NIP intelligence budget request was publicly disclosed for the first time in February 2011, in response to a requirement enacted by Congress in the FY 2010 intelligence authorization act. The MIP intelligence budget request was disclosed for the first time in February 2012, even though there was no specific statutory requirement to do so.

Foreign Ownership of U.S. Financial Assets, and More from CRS

New and updated reports from the Congressional Research Service include the following.

Foreign Ownership of U.S. Financial Assets: Implications of a Withdrawal, April 8, 2013

Foreign Investment and National Security: Economic Considerations, April 4, 2013

Financial Market Supervision: Canada’s Perspective, April 4, 2013

The European Union: Foreign and Security Policy, April 8, 2013

The Berne Union: An Overview, April 5, 2013

Japan’s Possible Entry Into the Trans-Pacific Partnership and Its Implications, April 8, 2013

El Salvador: Political and Economic Conditions and U.S. Relations, April 5, 2013

Latin America: Terrorism Issues, April 5, 2013

U.S. Policy Towards Burma: Issues for the 113th Congress, March 12, 2013

Congressional Authority to Regulate Firearms: A Legal Overview, April 5, 2013

Procedural Analysis of Private Laws Enacted: 1986-2013, April 9, 2013

U.S. Natural Gas Exports: New Opportunities, Uncertain Outcomes, April 8, 2013

Fluoride in Drinking Water: A Review of Fluoridation and Regulation Issues, April 5, 2013

State Legalization of Recreational Marijuana: Selected Legal Issues, April 5, 2013

Pentagon Manual Urges Precision in Classifying Information

The Department of Defense is not particularly concerned with “openness” in the abstract, but it is strongly motivated to conserve resources and reduce discretionary expenditures.  That imperative dictates the discriminating use of national security secrecy — at least in theory — because of the costs incurred by classification.

“Precise classification guidance is prerequisite to effective and efficient information security and assures that security resources are expended to protect only that which truly warrants protection in the interests of national security,” according to a newly reissued Department of Defense manual that provides Instructions for Developing Security Classification Guides (DoD Manual 5200.45, April 2, 2013).

The Manual presents a framework for classifying information, beginning with a series of questions for determining whether information is eligible for classification in the first place.  (“Can the unauthorized disclosure of the information reasonably be expected to cause identifiable or describable damage to the national security? If the answer is no, the information cannot be classified.”)

Then it details the considerations that may arise in the classification of information concerning military hardware, military operations, intelligence and foreign relations.  Exactly which aspects of a hardware system provide the U.S. with a technological advantage?  Precisely which operational information requires protection in order for the operation to succeed?

The Manual discourages broad, sweeping classification of information.  Through an extended questionnaire for classifiers, it seeks “to systematically bound and refine the scope of the analysis needed to determine which items warrant protection through security classification.”

As detailed and helpful as this guidance is, it cannot decisively resolve all classification questions in advance.  “The outcomes specified in the flow chart are not absolute; judgment must be applied in all cases,” the Manual says.

Some decisions regarding what to classify are easy.  Information about “a foreign official speaking in a highly critical manner of his own government’s policy” or “suggesting how pressure might effectively be brought to bear on another part of his own government” would typically be classified.  Likewise, the fact of ongoing intelligence cooperation between the United States and a country “with which the United States is not allied should always be classified.” Also, “intelligence identifying a sensitive source or method should always be classified.”

On the other hand, the Manual says, classification can be dispensed with in certain areas.  “Intelligence that reveals the identity of a conventional source or method [i.e., one that is not "sensitive"] normally does not require classification.”

And “in general, [intelligence budget] resource information should not be classified unless it reveals some aspect of the intelligence mission, and its revelation would jeopardize the effectiveness of a particular function. An example of classifiable resource information is the intelligence contingency fund.”

At this point, the realization will dawn on some readers that this Manual, which was originally issued in 1999, does not accurately describe — or effectively regulate — DoD classification policy.

It is simply not the case that “in general, resource information [is] not classified unless it reveals some aspect of the intelligence mission.”  To the contrary, the Department’s default position is that intelligence resource information is classified.  That is why the individual budget total of each DoD intelligence agency — and not simply intelligence contingency funds — is not disclosed.  And beyond the total budget for the Military Intelligence Program (MIP), “no other MIP budget figures… will be released,” DoD said last October, “as they remain classified for national security reasons.”

Nor does the Pentagon clearly distinguish between sensitive intelligence sources and methods, which are classified, and “conventional” intelligence sources and methods, which are not.  Doing so sounds like a good idea, but it is hard to detect any sign of it in Pentagon practice.

The Manual notes that all classification guidance should be reviewed at least every five years by the original classification authority that issued it.  But it fails to mention that all guidance is also subject to a broader periodic assessment known as the Fundamental Classification Guidance Review.  It is through such a broader review that changes in classification policy are more likely to come about.

Prosecutors Rebut Defendant’s Challenge to Espionage Act Statute

Last month, attorneys for Navy linguist James Hitselberger, who was charged under the Espionage Act with unlawful retention of classified documents, filed a motion arguing that the Espionage Act is unconstitutionally vague and unenforceable.  Last week, prosecutors replied and said that’s not so.

“Prosecuting Mr. Hitselberger under this statute violates the fair notice requirements of the Due Process clause because multiple terms contained in [the statute] are so vague that they fail to provide him with notice of what conduct is criminal and what conduct is not,” Hitselberger’s public defenders wrote in their March 1 motion.

Last Friday, prosecutors rebutted the defense motion, which they said was without merit.  “Every court that has considered similar challenges to [the Espionage Act statutes] has rejected them and found the provisions to pass constitutional muster,” they wrote.

The prosecutors cited rulings from past and present prosecutions involving charges under the espionage statutes to bolster their argument  — including those of State Department contractor Stephen Kim, former NSA official Thomas Drake, former CIA officer John Kiriakou, and former naval intelligence analyst Samuel L. Morison.  Like Hitselberger, none of those individuals was accused or suspected of espionage on behalf of a foreign power, but rather of unlawfully retaining or disclosing national defense information.

“Recently, the defendant in Drake made the same faulty argument as Hitselberger makes here,” prosecutors wrote. “The district court rejected the defendant’s claim that the term willfulness is unconstitutionally vague.”

“Although Hitselberger admittedly was not a career intelligence professional, he has more in common with defendants such as Morison, Kiriakou, and Kim than he lets on,” the prosecutors asserted.  It was not meant as a compliment.

Prosecutors filed additional responses to several other pre-trial defense motions to suppress evidence, to require a bill of particulars, to eliminate “multiplicious” charges, and to find sections of the Classified Information Procedures Act unconstitutional.

North Korean Nukes, Domestic Drones, and More from CRS

An updated summary of open source reporting on the North Korean nuclear weapons program was produced this week by the Congressional Research Service. See North Korea’s Nuclear Weapons: Technical Issues, April 3, 2013

Other new or newly updated CRS reports include the following.

Integration of Drones into Domestic Airspace: Selected Legal Issues, April 4, 2013

Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, April 3, 2013

Super PACs in Federal Elections: Overview and Issues for Congress, April 4, 2013

“Amazon” Laws and Taxation of Internet Sales: Constitutional Analysis, April 3, 2013

FutureGen: A Brief History and Issues for Congress, April 3, 2013

Congressional Redistricting and the Voting Rights Act: A Legal Overview, April 2, 2013

The Temporary Assistance for Needy Families (TANF) Block Grant: A Primer on TANF Financing and Federal Requirements, April 2, 2013

The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications, March 27, 2013

Overview of Health Care Changes in the FY2014 Budget Proposal Offered by House Budget Committee Chairman Ryan, March 22, 2013

Cuba: U.S. Policy and Issues for the 113th Congress, March 29, 2013

Defense Doctrine Offers Insight into Military Operations

“Reconnaissance assets, like artillery assets, are never kept in reserve,” according to U.S. Army doctrine.

In other words, whatever means you may have to gather information about the activities and capabilities of an adversary should be fully deployed, not held back.

“Reconnaissance units report exactly what they see and, if appropriate, what they do not see…. Reports of no enemy activity are as important as reports of enemy activity. Failing to report tells the commander nothing.”

That bit of practical wisdom, which may indeed be relevant beyond the battlefield, is contained in a new Army field manual on the subject. See Reconnaissance, Security, and Tactical Enabling Tasks, Volume 2, Field Manual 3-90.2, March 2013. It is a companion to Offense and Defense, Volume 1, Field Manual 3-90.1, March 2013.

The vast corpus of U.S. military doctrine offers a point of entry into military thought that may be of interest even — or especially — to a reader who is not a member of “the profession of arms.” Some noteworthy doctrinal publications that have recently been published or updated are cited below.  While they have a tendency to be jargon heavy and pedestrian, they are never frivolous or less than professional. Occasionally they offer impressive subtlety and sophistication or unexpected literary merit.

The distinctive vocabulary of military affairs is presented with authoritative definitions in a 500-page Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1-02, updated March 15, 2013.

The conceptual framework of the U.S. military is outlined in Joint Publication 1, Doctrine for the Armed Forces of the United States, reissued on March 25.  It “provides overarching guidance and fundamental principles” for the employment of the U.S. military. “War is socially sanctioned violence to achieve a political purpose,” it explains. “The basic nature of war is immutable, although warfare evolves constantly.”

The various functions of the military in humanitarian assistance are elaborated in Multi-Service Techniques for Civil Affairs Support to Foreign Humanitarian Assistance, ATP 3-57.20, February 2013.

A reference guide for initial assessment and response to an accidental or deliberate release of biological pathogens, radioactive material or other hazardous substances is given in Multi-Service Tactics, Techniques, and Procedures for Chemical, Biological, Radiological, and Nuclear Reconnaissance and Surveillance, ATP 3-11.37, March 2013.

The potential use of biological agents in war and the diagnosis and treatment of the resulting casualties are described in Multi-Service Tactics, Techniques and Procedures for Treatment of Biological Warfare Casualties, ATP 4-02.84, March 2013.

The intersection of law and Army operations is delineated in Legal Support to the Operational Army, Field Manual 1-04, updated March 2013.