Posts from January, 2014

Perjury Under Federal Law, and More from CRS

New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Perjury Under Federal Law: A Brief Overview, January 28, 2014

Perjury Under Federal Law: A Sketch of the Elements, January 28, 2014

Emergency Relief for Disaster Damaged Roads and Transit Systems: In Brief, January 28, 2014

Nuclear Cooperation with Other Countries: A Primer, January 27, 2014

Constitutional Analysis of Suspicionless Drug Testing Requirements for the Receipt of Governmental Benefits, January 29, 2014

Federal Employees’ Retirement System: Benefits and Financing, January 30, 2014

Military Retirement: Background and Recent Developments, January 27, 2014

Crisis in the Central African Republic, January 27, 2014

DNI Clapper: Transparency is the Way Forward

The primary lesson that emerges from the unauthorized disclosures of classified intelligence information by Edward Snowden is that U.S. intelligence agencies must be more transparent in their operations, said Director of National Intelligence James R. Clapper yesterday.

“The major takeaway for us, certainly for me, from the past several months is that we must lean in the direction of transparency, wherever and whenever we can,” DNI Clapper told the Senate Intelligence Committee.

“With greater transparency about these intelligence programs the American people may be more likely to accept them,” he said, promising “further declassification.”

Another possibility, he acknowledged, is that even with greater transparency the American people will choose not to accept certain kinds of intelligence programs.

“If dealing with reduced capacities is what we need to ensure the faith and confidence of the American people and their elected representatives, then we in the intelligence community will work as hard as we can to meet the expectations before us,” DNI Clapper said.

Already, the Snowden disclosures have caused “profound damage” to U.S. intelligence, the DNI said.

“What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners.”

“Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed to prevent even more damage to U.S. security,” the DNI said.

The use of the word “accomplices” appeared to suggest that the DNI views the journalists who possess and report on the Snowden documents as Snowden’s partners in crime, and even as criminals themselves.

“Is it now the official view of the Obama administration that these journalists and media outlets are ‘accomplices’ in what they regard as Snowden’s crimes? If so, that is a rather stunning and extremist statement,” wrote Glenn Greenwald, who first reported on the Snowden releases last June.

But though it has never yet figured in an actual prosecution, the issue of criminal liability for journalists in this area is embedded in the law.

It’s true that there is no general legal prohibition on publication of classified information. (Congress passed such a statute in 2000, but President Clinton vetoed it.)

But there is a clear and specific prohibition on the willful disclosure of classified communications intelligence information. And that prohibition, in 18 U.S.C. 798, extends also to anyone who “publishes” such information.

What is “stunning,” or at least noteworthy, is that the Obama Administration has apparently made a strategic decision not to attempt to enforce this provision of the law against publishers of the Snowden documents. (It was invoked against Snowden himself as one of the three counts in a June 14, 2013 criminal complaint.)

It seems that even what the DNI called “the most massive and most damaging theft of intelligence information in our history by Edward Snowden and the ensuing avalanche of revelations published and broadcast around the world” is not sufficient to trigger the use of the criminal statute against publishers of classified communications intelligence. So that provision is effectively a dead letter, even if it still finds a faint echo in the DNI’s testimony before Congress.

JASON on Enhanced Geothermal Energy Systems

The potential for new technologies to harvest energy from the Earth’s crust was considered in a new report from the elite JASON science advisory board on “Enhanced Geothermal Systems” (EGS).

“EGS offers important opportunities for increasing the contribution of geothermal energy to U.S. power production: by a few-fold over the next few years, according to our estimation, and much more so if this initial success is appropriately leveraged over subsequent years,” the report concluded.

As described in the report, EGS entails drilling deep into the Earth’s crust — 1 to 5 kilometers or more — and forcing a fluid (water or brine) through hot, permeable rock. Energy from the heated fluid can then be extracted.

Of course, the technology is not without hazards. One is the potential for pollution of potable water acquifers. Another more ominous concern is “induced seismicity” — or artificially-generated earthquakes.

“Induced seismicity is a relatively well-documented phenomenon associated with changing fluid pressures at depth,” the report notes. The JASONs assert that “there is a basis for controlling the induced seismicity and therefore for minimizing this potential hazard attributable to EGS.”

The new JASON report is elegantly written and can be at least partially understood by non-specialist readers who may have forgotten their heat and mass transfer equations. A copy was obtained by Secrecy News.

Over the past year, the JASONs completed eight classified studies containing sensitive compartmented information (SCI) that have not been disclosed. Several other unclassified reports were also performed and their release is pending.

In 2012, the Central Intelligence Agency refused to release a JASON report entitled “Metamaterials.”

Update: For more background on enhanced geothermal systems, see this story in Scientific American.

Identity Theft, and More from CRS

Recent reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Identity Theft: Trends and Issues, January 16, 2014

Executive Order 13438: Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq, January 24, 2014

Detention of U.S. Persons as Enemy Belligerents, January 23, 2014

Trends in Discretionary Spending, January 24, 2014

Abortion: Judicial History and Legislative Response, January 24, 2014

Overview of the Federal Tax System, January 23, 2014

International Trade and Finance: Key Policy Issues for the 113th Congress, Second Session, January 23, 2014

“Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits, January 23, 2014

An Overview of Unconventional Oil and Natural Gas: Resources and Federal Actions, January 23, 2014

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, January 17, 2014

The European Union: Questions and Answers, January 15, 2014

North Korea: U.S. Relations, Nuclear Diplomacy, and Internal Situation, January 15, 2014

Iran Sanctions, January 15, 2014

DoD Doctrine on Foreign Humanitarian Assistance

The diverse factors that shape the execution of disaster relief and other foreign humanitarian assistance missions by the US military are described in a newly updated Department of Defense publication on the subject.

See Foreign Humanitarian Assistance, Joint Publication 3-29, January 3, 2014.

“Although US military forces are organized, trained, and equipped to conduct military operations that defend and protect US national interests, their inherent unique capabilities may be used to conduct FHA [Foreign Humanitarian Assistance] activities,” the publication said.

FHA “consists of Department of Defense activities conducted outside the US and its territories to directly relieve or reduce human suffering, disease, hunger, or privation.”

The publication said that DoD FHA operations necessarily include “intelligence collection concerning political, military, paramilitary, ethnic, religious, economic, medical, environmental, geospatial, and criminal indicators…. Intelligence operations during FHA operations are generally conducted in the same manner as in any other military operation.”

At the same time, however, “Information sharing is critical to the efficient pursuit of a common humanitarian purpose… The sharing of information is particularly critical because no single responding entity– whether it is an NGO [nongovernmental organization], IGO [intergovernmental organization], assisting country government or host government– can be the source of all of the required data and information.”

“Tensions between military needs for classification (secrecy) of data, versus the civilian need for transparency… often complicate effective civil-military coordination,” the DoD publication noted.

Privacy Board Urges New Criteria for Secrecy

The public controversy that erupted over NSA bulk collection of Americans’ telephone records was a clear sign, if one were needed, that the boundaries of government secrecy had been drawn incorrectly, and that the public had been wrongly denied an opportunity to grant or withhold its consent in such cases.

To remedy this systemic problem, the Privacy and Civil Liberties Oversight Board said in a new report yesterday that the government needs to develop new criteria for secrecy and openness.

“The Board urges the Administration to commence the process of articulating principles and criteria for deciding what must be kept secret and what can be released as to existing and future programs that affect the American public” (Recommendation 11).

But translating this imperative into practice remains a challenge.

“Generalities about the value of transparency do not go far in answering the hard questions of what can be disclosed and what must remain secret,” the Board properly observed. “Instead, progress may best be achieved by considering specific problems,” such as intelligence surveillance policy.

With that in mind, the Board sketched out illustrative examples and options that could guide future declassification and disclosure decisions. Experience has already shown, the report said, that “it is possible to describe [intelligence] practices and policies publicly, even those that have not been otherwise leaked, without damage to national security or operational effectiveness.”

More specifically, the Board report said the Administration should start to address transparency with a “public articulation of the legal authorities under which it conducts surveillance affecting Americans,” the very point at which the current controversy began (Recommendation 12).

However, a minority of the Board did not endorse this particular recommendation. “I do not believe that an intelligence program or legal justification for it must necessarily be known to the public to be legitimate or lawful,” said dissenting Board member Rachel Brand.

The lack of Board unanimity on this and other points “really weakens its recommendations and undermines the role that we envisioned it would play,” said Sen. Susan Collins in the Wall Street Journal.

But from another point of view, the divided views of Board members are a strength, not a weakness. The fact that thoughtful people reviewing the same factual record can arrive at divergent conclusions is instructive, and the split may accurately reflect larger divisions among members of the public. Advocates and editorial writers seem to be strangers to doubt, but others may not be. Confronting the opposing views of Board members, readers are invited and compelled to think for themselves.

Overall, the Privacy and Civil Liberties Oversight Board demonstrated its utility as a public oversight body, helping to fill the void left by congressional and judicial oversight that sometimes seems cursory by comparison.

The Board (majority) presented an incisive critique of current surveillance practices that is lucid and nuanced, clarifying the legal and policy issues involved without hyperbole or vitriol.

“The Board concludes that Section 215 [of the USA Patriot Act] does not provide an adequate legal basis to support this [bulk collection] program. Because the program is not statutorily authorized, it must be ended,” the report said.

Even in the absence of overt abuse, it was argued, the mere collection of American telephone records in bulk is an infringement on privacy and other civil liberties. “Permitting the government to routinely collect the calling records of the entire nation fundamentally shifts the balance of power between the state and its citizens.”

While there are procedures in place to limit the official use of such records, “in our view they cannot fully ameliorate the implications for privacy, speech, and association that follow from the government’s ongoing collection of virtually all telephone records of every American. Any governmental program that entails such costs requires a strong showing of efficacy. We do not believe the NSA’s telephone records program conducted under Section 215 meets that standard.”

If the bulk collection program were demonstrably effective in saving lives, the report implied, then certain infringements on privacy might well be warranted. But that is not the case, the Board majority concluded.

“Given the limited value this [bulk collection] program has demonstrated to date… we find little reason to expect that it is likely to provide significant value, much less essential value, in safeguarding the nation in the future,” the Board report said.

Of course, that is a judgment, not an empirical fact. Others can and do disagree, including two of the members of the Board itself.

“Whether the [bulk collection] program should continue boils down to whether its potential intrusion on privacy interests is outweighed by its importance to protecting national security,” wrote Rachel Brand, precisely. This too is a judgment, and it explains why disagreement over the program persists.

But on the need to rethink current secrecy practices, at least, there is consensus, among members of the Board and beyond.

John C. Inglis, in his final days as deputy director of the National Security Agency, told National Public Radio that he now realized that existing public disclosure practices were “insufficient.”

Did he wish NSA had made an effort years ago to disclose the bulk collection program in a way that the public could debate it?  “In hindsight, in hindsight,” he told NPR’s Steve Inskeep.

The task now is to apply the lessons of hindsight to present-day national security secrecy policies, and not only with regard to NSA surveillance activities.

“What we’re going to have to do as a nation, and particularly as an agency, is to rebalance, right, the balance that we have struck between security, secrecy and transparency,” Mr. Inglis said, in an NPR interview published January 10.

 

Defense Science Board Urges Expanded Global Monitoring

While others speak of curbing intelligence surveillance activities, the Defense Science Board argues in a new report that the U.S. government should expand and accelerate global monitoring for purposes of detecting nuclear proliferation as “a top national security objective.”

Intelligence techniques and technologies that are used to combat terrorism should also be harnessed to address the threat of proliferation, said the new DSB report, entitled “Assessment of Nuclear Monitoring and Verification Technologies,” January 2014.

“The advances in persistent surveillance, automated tracking, rapid analyses of large and multi-source data sets, and open source analyses to support conventional warfighting and counterterrorism have not yet been exploited by the nuclear monitoring community…. New intelligence, surveillance, and reconnaissance (ISR) technologies, demonstrated in recent conflicts, offer significant promise for monitoring undesirable nuclear activity throughout the free world.”

The National Security Agency, among others, has pointed the way, the report suggested. A newly integrated global awareness system for counterproliferation should “build on lessons and experiences of successful national security capabilities, such as… NSA’s counterterrorism capabilities….”

“The ‘big data’ technologies for extracting meaning from vast quantities of data that are being developed commercially in the information technology (IT) industry, and for other purposes in DoD and the IC, need to be extended and applied to nuclear monitoring.”

In particular, “Exploiting the cyber domain should certainly be a big part of any nuclear monitoring effort. Both passive, depending on what is sent voluntarily, and active sources should be considered. Data gathered from the cyber domain establishes a rich and exploitable source for determining activities of individuals, groups and organizations needed to participate in either the procurement or development of a nuclear device…. Many of the new technology advances in data exfiltration, covert implantation, etc., hold promise for successful multi-INT collection and exploitation in non-permissive environments.”

“Monitoring for proliferation should be a top national security objective — and one that the nation is not yet organized or fully equipped to address.”

At the same time, the DSB report emphasized the need for increased openness and transparency, both to strengthen international confidence and stability and to simplify the challenge of global monitoring of proliferation. (As used by the DSB — and the USG — the term transparency in this context seems to mean the exchange of data among interested governments, and does not necessarily imply release of information to the public.)

The DSB authors recommend “a comprehensive, sustained, policy-based diplomatic approach coordinated across the U.S. Government and with other nations devoted expressly to advance the cause of openness and transparency writ large…. This situation should be addressed with the highest priority.”

“The Task Force envisions a multi-year effort, which can pay large dividends in terms of a universal transparency that would improve strategic and tactical stability against nuclear war among all nuclear weapons states, as well as achieve enhanced confidence building for nonproliferation efforts.”

“All parties would benefit from the national security stability that would ensue from having transparent knowledge of the numbers/types of other nations’ nuclear arsenals, while each nation in turn makes the knowledge of their own SNM [special nuclear material] and/or nuclear weapons inventories available to the others.”

(The report does not mention the case of Israel, whose policy of nuclear opacity — not transparency — is supported at least tacitly by the U.S. government.)

“The Task Force does believe that the times are now propitious to move forward on a path to develop universal transparency regimes that can simultaneously fulfill these goals and requirements through an international process for achieving universal knowledge of nuclear weapon inventories and SNM inventories, and that the U.S. should lead in such an effort.”

“Indeed, the U.S. has already declassified the size of its current nuclear arsenal.”

Unfortunately, that last assertion is not correct.  In May 2010, the U.S. government did declassify the size of the U.S. nuclear arsenal as of September 2009.  (At that time, there were 5,113 warheads.) But if you ask how big the arsenal is today, it turns out that the answer is once again classified. The Federation of American Scientists has petitioned the Department of Energy to revise that judgment in favor of public disclosure.

The new DSB report contains several other incidental observations of interest.

*    To date, the U.S. has entered into roughly 25 agreements on nuclear cooperation with other countries (known as 123 Agreements).

*    Of the nearly 1,000 active satellites in earth orbit, there are 200 engaged in earth observation.

*    Some non-governmental analysis of commercial satellite imagery is of poor quality and “may introduce additional noise into U.S. and international monitoring systems. Some experts are concerned that bad data and bad analysis could increasingly tarnish or mask more reliable data…. There have already been major analytical errors made by untrained imagery analysts who have published openly.”

*    The efficient analysis of big data can be undermined by the “transmission latency” (or delayed transfer) of data stored in a cloud-based architecture. Therefore, the DSB says that when it comes to nuclear monitoring, “the analytics need to stay near the data.” Similar concerns concerning prompt access are said to arise in the context of NSA analysis of telephony metadata.

GAO to Issue Report on Intelligence Contractors

The Government Accountability Office will issue a long-awaited report on intelligence community contractors in the next few weeks, a congressional official said.

The GAO report is an unclassified version of a classified assessment that was completed last year.  According to a statement of work obtained by Secrecy News in 2012, the GAO project was to address the following issues:

“(1) To what extent do civilian intelligence agencies rely on and strategically review their reliance on contractors to perform critical professional and management support services? (2) To what extent do these agencies have policies and guidance that address the use of contractors for these services? (3) What steps have these agencies taken to manage the risks associated with using contractors for these services? (4) To what extent have these agencies addressed challenges with retaining federal personnel?”

The new contractor study is not the only GAO activity related to intelligence; it is one of “several, maybe half a dozen” GAO projects that are underway. By its nature, GAO tends not to deal with intelligence operations, or with sources and methods, the congressional official said. Rather, it is mainly concerned with workforce management, human capital, and similar issues in which it has particular expertise.

The official said that GAO now has a “constructive” relationship with intelligence agencies, particularly after the adoption in 2011 of Intelligence Community Directive 114, which established a common understanding of GAO’s role and authorities.

“We’re on the right path,” the official said. “There are occasional bumps in the road, but you deal with the bumps.”

A new appreciation for the potential utility of GAO audits and investigations of intelligence agency performance seems to be developing.

Multiple bills have been introduced in the current Congress that would employ GAO in congressional oversight of intelligence.

Rep. Rush Holt’s “Surveillance State Repeal Act” (HR 2818) would require the GAO to evaluate government compliance with foreign intelligence law.

The “NSA Accountability Act” (HR 3882) introduced by Rep. John Carney would require GAO to analyze the effectiveness of NSA programs, to report on the conduct of surveillance programs, and to describe any violations of law.

Another bill (HR 3900) introduced just last week by Rep. Michael McCaul is intended to facilitate GAO access to information in the intelligence community.

Sen. McCain Blasts Secret Legislation on Drone Policy

In a striking new example of secret lawmaking, a classified provision in the consolidated appropriations bill passed by Congress last week prohibited the transfer of CIA drone operations to the Department of Defense.

“This is outrageous,” said Sen. John McCain of the secret legislative move, “and it should not have happened.”

The secret provision was first reported in the Washington Post. “The provision represents an unusually direct intervention by lawmakers into the way covert operations are run, impeding an administration plan aimed at returning the CIA’s focus to traditional intelligence gathering and possibly bringing more transparency to drone strikes,” wrote Greg Miller in the Post. (“Lawmakers seek to stymie plan to shift control of drone campaign from CIA to Pentagon,” January 15.)

The term “secret law” is most often used to refer to executive branch actions that mandate national policy without public notice, or that reinterpret existing statutes in dubious or counterintuitive ways that are not disclosed to the public.  But in this case, an important national policy measure was literally written into law by Congress in secret.

In his January 16 floor statement, Sen. McCain had this to say:

“…Tucked away in the classified portion of this bill is a policy rider that has serious national security implications and is a prime example of the appropriators overstepping their bounds. This provision will halt the transfer of the U.S. drone counterterrorism operations from the CIA to the Department of Defense. In doing so, it summarily changes a very important policy that guides how we do certain counterterrorism operations abroad from a direction that the President has specifically prescribed. And how did most of us become aware of this major policy change? By reading this morning’s Washington Post; that is how.”

“This is outrageous, and it should not have happened. While there may be differing opinions on who should control drone counterterrorism operations, we should be able to debate these differences in the committees of jurisdiction and eventually on the Senate floor. The fact that a major national security policy decision is going to be authorized in this bill without debate or authorization is unacceptable and should not be the way we legislate on such important national security issues.”

But it is the way that this Congress legislates. And though Senator McCain voted against the measure, the full Senate approved it, 72-26, and the President signed it into law on January 17.