Posts from May, 2013

The Role of Contractors in Military Operations, and More from CRS

The Pentagon’s reliance on contractors to support military operations has now become so extensive that some argue it should be… even more extensive!

These advocates “believe that DOD should be prepared to effectively award and manage contracts at a moment’s notice, anywhere in the world, in unknown environments, and on a scale that may exceed the total contract obligations of any other federal agency,” according to a new report from the Congressional Research Service.

As of March 2013, there were approximately 108,000 DoD contractor personnel in Afghanistan, CRS reports, representing 62% of the total force.

“Contractors provide a wide range of services, from transportation, construction, and base support, to intelligence analysis and private security,” CRS notes. “The benefits of using contractors include freeing up uniformed personnel to conduct combat operations; providing expertise in specialized fields, such as linguistics or weapon systems maintenance; and providing a surge capability, quickly delivering critical support capabilities tailored to specific military needs.”

But “Just as the effective use of contractors can augment military capabilities, the ineffective use of contractors can prevent troops from receiving what they need, when they need it, and can lead to the wasteful spending of billions of dollars. Contractors can also compromise the credibility and effectiveness of the U.S. military and undermine operations, as many analysts believe have occurred in recent operations in Iraq and Afghanistan.”

The new CRS report sifts through the implications of this situation, and proposes an oversight agenda for Congressional consideration.  See Department of Defense’s Use of Contractors to Support Military Operations: Background, Analysis, and Issues for Congress, May 17, 2013.

Other new and updated CRS reports that Congress has directed CRS not to release to the public include the following.

Compounded Drugs, May 23, 2013

Financial Stability Oversight Council: A Framework to Mitigate Systemic Risk, May 21, 2013

Federal Research and Development Funding: FY2014, May 23, 2013

SBA Assistance to Small Business Startups: Client Experiences and Program Impact, May 22, 2013

501(c)(4)s and Campaign Activity: Analysis Under Tax and Campaign Finance Laws, May 17, 2013

Restrictions on Itemized Tax Deductions: Policy Options and Analysis, May 21, 2013

The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Policymakers, May 21, 2013

Ukraine: Current Issues and U.S. Policy, May 24, 2013

Congressional Primer on Major Disasters and Emergencies, May 24, 2013

Severe Thunderstorms and Tornadoes in the United States, May 22, 2013

Surveillance Court Orders Govt to Respond to EFF Motion

The Foreign Intelligence Surveillance Court issued an order on Friday directing the Department of Justice to respond no later than June 7 to a motion filed on May 23 by the Electronic Frontier Foundation (EFF).  The order was signed by Judge Reggie B. Walton, presiding judge of the surveillance court.

EFF had asked the Court to formally consent to the release of records in which the Court found government surveillance activities to be inconsistent with the Fourth Amendment to the Constitution.  In response to a prior Freedom of Information Act request, the Justice Department had asserted that Court rules did not permit such disclosure, though that position is not explicitly stated in Court rules.  To overcome this impasse, EFF asked the Court to affirmatively consent to disclosure of the requested records.

The case was first reported in Group wants special court to release ruling on unlawful U.S. surveillance by Ellen Nakashima, Washington Post, May 22.

For further background, see EFF Takes FOIA Fight Over Secret Wiretaps to the Foreign Intelligence Surveillance Court by Mark Rumold, May 22.

Government Monitoring of Journalists, Then and Now

When the Central Intelligence Agency prepared its famous 1973 compilation of dubious and illegal Agency activities known as the “Family Jewels,” it included several instances in which reporters were tracked or monitored in order to identify their sources.  While these activities were technically “approved” by senior Agency officials, they also “conflict[ed] with the provisions of the National Security Act of 1947,” presumably since they exceeded CIA’s charter and jurisdiction.

But now, in the wake of recent developments involving seizure of Associated Press telephone records and the identification of Fox News reporter James Rosen as a purported co-conspirator in a leak of classified information, such once disreputable tracking of journalists threatens to become the new normal.

“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,” the Family Jewels document stated. “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.”

Likewise, “At the direction of the DCI, surveillance was conducted of Jack Anderson and at various times his ‘leg men,’ Brit 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.” (“Surveillance of Journalists: A Look Back,” Secrecy News, September 19, 2012).

Those were seemingly rare and isolated incidents.  Although “DOJ and the FBI receive numerous media leak referrals each year, the FBI opens only a limited number of investigations based on these referrals,” the FBI told Congress in 2010 answers to questions for the record.  That is due in part to the fact that the FBI deliberately avoided investigations of news media organizations.

“We have interpreted DOJ’s formal policy on obtaining information from members of the news media, codified at 28 C.F.R. §50.10, as requiring that such leak investigations focus on potential leakers rather than reporters,” FBI Director Robert Mueller told the Senate Judiciary Committee. “While this policy appropriately balances the importance of First Amendment freedoms with the strong national security interest in keeping classified information from disclosure, it necessarily limits the prosecutor’s access to the reporter who received the sensitive information. In the rare case in which DOJ issues a subpoena to a reporter for information about the source of a leak, the information is not necessarily produced.” (“FBI Found 14 Intel Leak Suspects in Past 5 Years,” Secrecy News, June 21, 2010).

But today, any news organization that successfully “solicits” disclosure of classified information evidently must consider the possibility that the records of its communications will be subject to government review, contemporaneously or even long after the fact.  In the absence of congressional intervention to restore the previous status quo, the mere prospect of such monitoring will induce a dramatic change in the landscape of national security reporting, and in the character of all contacts between government officials and members of the public.

One thin line that has not yet been crossed is the prosecution of journalists for violating the Espionage Act by reporting classified information.

A Wall Street Journal editorial yesterday suggested oddly that such a prosecution had already occurred:  “We can recall only a single such prosecution of a journalist under the Espionage Act in 95 years,” the Journal editors wrote (“A Journalist ‘Co-Conspirator’,” May 20).  But this appears to be an error, and the editors did not identify the case they had in mind.

The nearest approach to the prosecution of a reporter or a news organization for violating the Espionage Act seems to have occurred during World War II when the Chicago Tribune published a story concerning Japanese war plans based on classified intelligence.  In 1942, a grand jury was convened at the request of the U.S. Navy to weigh charges against the Tribune or its reporter, Stanley Johnston, but the grand jury was soon disbanded. No charges were brought, and no prosecution ensued.  The episode was vividly recounted by Gabriel Schoenfeld in chapter 6 of his 2010 book Necessary Secrets.  Mr. Schoenfeld indicated via email today that he was not aware of any actual prosecutions of journalists under the Espionage Act.

A timeline of leak investigations involving journalists from 2003 to the present was presented by Shane Harris of the Washingtonian’s Dead Drop blog.

The possibility of indicting reporter Seymour Hersh in 1975 was raised by then-deputy White House chief of staff Dick Cheney, as described by PBS Frontline (h/t Ryan Goodman).  It was not pursued.

Historian William Z. Slany, RIP

William Z. Slany, the former Historian of the Department of State and a champion of efforts to declassify the secret history of U.S. foreign policy, passed away earlier this month.

Dr. Slany served in the State Department’s Office of the Historian for 42 years, and was The Historian for the last 18 of those years, until his retirement from the Department in September 2000, according to a notice circulated by David H. Herschler, the Deputy Historian of the State Department.

In his capacity as Historian of the Department, Dr. Slany helped prepare 16 volumes of the Foreign Relations of the United States series, the official documentary record of U.S. foreign policy, and he oversaw the publication of 125 FRUS volumes.  He led an interagency study to prepare a two volume account of “Nazi gold” and other stolen assets from World War II.  He participated in the development and implementation of the 1991 statute that formally required the State Department to present a “thorough, accurate, and reliable” record of U.S. foreign policy and diplomatic history.

Though dignified and softspoken, Dr. Slany could be combative in defense of an open and honest historical record. And while it is unusual for a senior official of one agency to criticize the conduct of another agency publicly and on the record, he was willing to do so when he thought it was justified.

In 1999, for example, he berated the Central Intelligence Agency for making what he termed “unreasonable” excisions in its declassified records of Cold War covert actions.

“What has become apparent and obvious is the Agency’s unwillingness to acknowledge amounts of money, liaison relationships, and relationships with organizations, information that any ‘reasonable person’ would believe should be declassified,” Dr. Slany said, according to the minutes of a September 1999 meeting of the State Department Historical Advisory Committee. “The process has revealed the bare bones of CIA’s intransigence,” he said.

“Bill Slany was one of the good guys in the declassification/secrecy game,” said Rutgers historian Warren Kimball, a former chair of the State Department Historical Advisory Committee.

“He played a key role in the maneuvers that, in 1991, created the landmark legislation that forced open CIA, Energy Department (AEC) and other long-secret files so they could be declassified and published in the State Department series, Foreign Relations of the United States.  His quiet, firm mantra was simple: in a democracy, the citizenry must have access, even if it came thirty years after the fact.  The State Department he loved was not always as idealistic as he wished, but he never stopped pushing the institution, and the U.S. Government, toward openness,” Prof. Kimball wrote via email.

Reporter Deemed “Co-Conspirator” in Leak Case

In a startling expansion of the Obama Administration’s war on leaks, a federal agent sought and received a warrant in 2010 to search the email account of Fox News correspondent James Rosen on grounds that there was probable cause the reporter had violated the Espionage Act by soliciting classified information from a State Department official.

This previously undisclosed development was first reported in “A rare peek into a Justice Department leak probe” by Ann E. Marimow, Washington Post, May 19.

“I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to the SUBJECT ACCOUNT [the gmail account of Mr. Rosen] are evidence, fruits and instrumentalities of criminal violations of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate,” wrote FBI agent Reginald B. Reyes in a May 28, 2010 application for a search warrant.

The search warrant was issued in the course of an investigation into a suspected leak of classified information allegedly committed by Stephen Jin-Woo Kim, a former State Department contractor, who was indicted in August 2010.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime.  (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)

The affidavit also highlights the government’s ability to monitor activity within classified networks with a fine mesh, and to correlate document downloads with external communications.

“So far, the FBI’s investigation has revealed in excess of 95 individuals, in addition to Mr. Kim, who accessed the Intelligence Report [containing the information reported by Mr. Rosen] on the date of the June 2009 article and prior to its publication. To date, however, the FBI’s investigation has not revealed any other individual, other than Mr. Kim, who both accessed the Intelligence Report and who also had contact with the Reporter on the date of publication of the June 2009 article,” the affidavit noted.

Some of the contacts between Mr. Kim and Mr. Rosen could be expeditiously uncovered because both of them were using desk telephones within the Department of State. Likewise, their comings and goings could be readily tracked because both used official ID badges to enter and exit the State Department building.

As evidence of Mr. Rosen’s purported culpability, the Reyes affidavit notes that Rosen and Kim used aliases in their communications (Kim was “Leo” and Rosen was “Alex”) and in other ways sought to maintain confidentiality.

“From the beginning of their relationship, the Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information…. The Reporter did so by employing flattery and playing to Mr. Kim’s vanity and ego.”

“Much like an intelligence officer would run an [sic] clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan… to facilitate communication with Mr. Kim and perhaps other sources of information.”  And so forth.

What makes this alarming is that “soliciting” and “encouraging” the disclosure of classified information are routine, daily activities in national security reporting.  The use of pseudonyms and discreet forms of communication are also commonplace.

But for today’s FBI, these everyday reporting techniques are taken as evidence of criminal activity and grounds for search and seizure of confidential email.

“Based on the foregoing, there is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. 793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an insider, abettor and/or co-conspirator of Mr. Kim,” Mr. Reyes wrote.

The affidavit says that the FBI had exhausted all alternatives to a search warrant for collecting the desired evidence, except for asking Mr. Rosen to voluntarily produce his own email.

“Because of the Reporter’s own potential criminal liability in this matter, we believe that requesting the voluntary production of the materials from Reporter would be futile and would pose a substantial threat to the integrity of the investigation and of the evidence we seek to obtain by the warrant.”

The warrant application was approved and signed by U.S. Magistrate Judge Alan Kay on May 28, 2010.  It was sealed until November 7, 2011 but went unnoticed until the Washington Post reported on it late yesterday.

Subpoena of AP Phone Records Said to Damage Press Freedom

The government seizure of Associated Press telephone records in the course of a leak investigation undermined freedom of the press in the United States, congressional critics said yesterday.

“It seems to me the damage done to a free press is substantial,” said Rep. Zoe Lofgren at a hearing of the House Judiciary Committee.

Pursuant to subpoena, the government captured call records for 20 telephone lines of Associated Press reporters and editors over a two month period last year.  The records are logs of calls made and received, but do not include their contents.  It was a “massive and unprecedented intrusion” into newsgathering activities, wrote the AP’s president Gary Pruitt in a May 13 letter.

The Justice Department denied that the action deviated from established policy.

“We understand your position that these subpoenas should have been more narrowly drawn, but in fact, consistent with Department policy, the subpoenas were limited in both time and scope,” wrote Deputy Attorney General James M. Cole in a May 14 reply.

The  move arose from an AP story about a disrupted bomb plot originating in Yemen that led to the revelation of a classified counterterrorism operation and the existence of a valued agent. “This is among the top two or three serious leaks that I’ve ever seen” said Attorney General Eric Holder. He did not elaborate.

Meanwhile, the upshot is that any presumption of confidentiality in the source-reporter relationship has been compromised across the board, especially but not only in national security reporting.

“Reporters who might have previously believed that a confidential source would speak to them would no longer have that level of confidence, because those confidential sources are now going to be chilled in their relationship with the press,” Rep. Lofgren said yesterday.

Last year, congressional leaders harshly criticized the Obama Administration for supposedly failing to aggressively combat leaks of classified information, including in the present case.

“The Administration’s disregard for the Constitution and rule of law not only undermines our democracy, it threatens our national security,” said Rep. Lamar Smith, at a hearing of the House Judiciary Committee last year. “The Justice Department has not taken the initiative to prosecute leaks of national security secrets. Recent leaks about a foiled bomb plot out of Yemen and a cyberattack against Iran are, in the words of Senate Intelligence Chairwoman Dianne Feinstein, quote, ‘very detrimental, very concerning, and hurt our country,’ end quote.”

The irony was not lost on Rep. Jerrold Nadler.

“I think we should put this in context, and remember that less than a year ago this committee’s Republican leadership demanded aggressive investigation of press leaks, accusing the administration itself of orchestrating those leaks,” he noted. “Then, members of this committee wanted the reporters subpoenaed, put in front of grand juries and potentially jailed for contempt. Now, of course, it is convenient to attack the attorney general for being too aggressive or the Justice Department for being too aggressive.”

“But this inconsistency on the part of my Republican colleagues should not distract us from legitimate questions worthy of congressional oversight, including whether the Espionage Act has been inappropriately used looking at leakers, whether there is a need for a greater press shield,… and Congress’ broad grants of surveillance authority and immunity,” Rep. Nadler said.

Rep. Lofgren said that the damage done to freedom of the press by the clandestine seizure of AP phone records “will continue until corrective action is taken.”

GPO Suspends Public Access to Some NASA Records

The Government Printing Office is blocking public access to some previously released records of the National Aeronautics and Space Administration, while the records are reviewed to see if they contain export-controlled information.  The move follows the controversial disabling and partial restoration of the NASA Technical Reports Server (NTRS) (NASA Technical Report Database Partly Back Online, Secrecy News, May 9.)

“GPO has been asked to suspend any activity related to making these documents available if they have not been reviewed,” GPO said in a notice today.

“During this time, PURLs that GPO has created for the electronic versions of NASA Technical Reports found in cataloging records accessed through the Catalog of U.S. Government Publications (CGP) may not link to the documents that the catalog record describes.” (h/t Full Text Reports, infoDOCKET)

U.S.-China Motor Vehicle Trade, and More from CRS

“In 2009, China overtook the United States to become both the world’s largest producer of and market for motor vehicles,” a new report from the Congressional Research Service notes.

That is not altogether bad news. “Every year since 2010, General Motors has sold more cars in China (through exports and its joint ventures there) than in the United States,” CRS said. “On the other hand, China maintains a number of trade and investment barriers that affect trade flows in autos and auto parts.”

See U.S.-Chinese Motor Vehicle Trade: Overview and Issues, May 13, 2013

Other new and updated reports from the Congressional Research Service that Congress has declined to make publicly available include the following.

Regulation of Fertilizers: Ammonium Nitrate and Anhydrous Ammonia, May 9, 2013

Haiti Under President Martelly: Current Conditions and Congressional Concerns, May 10, 2013

Women in Combat: Issues for Congress, May 9, 2013

The Peace Corps: Current Issues, May 10, 2013

Proposals to Eliminate Public Financing of Presidential Campaigns, May 10, 2013

The Federal Budget: Issues for FY2014 and Beyond, May 9, 2013

Sequestration at the FAA, and More from CRS

The latest reports from the Congressional Research Service include the following.

The Chained Consumer Price Index: What Is It and Would It Be Appropriate for Cost-of-Living Adjustments?, May 8, 2013

Sequestration at the Federal Aviation Administration (FAA): Air Traffic Controller Furloughs and Congressional Response, May 7, 2013

Proposed Cuts to Air Traffic Control Towers Under Budget Sequestration: Background and Considerations for Congress, May 7, 2013

Status of Federal Funding for State Implementation of Health Insurance Exchanges, May 8, 2013

The DHS S&T Directorate: Selected Issues for Congress, May 3, 2013

Judge Mosman Named to Foreign Intelligence Surveillance Court

Chief Justice John Roberts has appointed Judge Michael W. Mosman of the District of Oregon to serve as a judge on the United States Foreign Intelligence Surveillance Court.

The appointment was effective May 4, 2013, and will extend through May 3, 2020, said Mr. Sheldon Snook, a spokesman for the Court.

Judge Mosman replaces Judge Roger Vinson, whose term on the surveillance court expired on May 3, 2013.

Judge Mosman, who was appointed to the bench by President George W. Bush, is generally considered a conservative.  But last March he drew criticism from some on the political right after he granted bail to one Reaz Qadir Khan, who was charged with conspiracy to provide material support to terrorists. Judge Mosman ordered Khan’s release over the government’s objections after he determined that the defendant was not a flight risk or a danger to the community.

“Incredibly, the judge, Michael Mosman, a George W. Bush appointee, allowed Khan to walk free from the federal courthouse pending trial,” complained the conservative watchdog group Judicial Watch in a March 11 posting.

The eleven-member Foreign Intelligence Surveillance Court reviews applications from government agencies for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act.

In 2012, the Court approved 1,788 applications for electronic surveillance and denied none, as noted in a report to Congress last month.