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Kenneth Wainstein Named to Public Interest Declassification Board

Kenneth L. Wainstein, the former head of the Justice Department National Security Division, was named to the Public Interest Declassification Board by Senate Minority Leader Mitch McConnell.

Mr. Wainstein is a smart guy and an honorable public servant. But he is not the first or second person most people might think of to help advance “public interest declassification.” In fact, the records that he classified as a Justice Department official or as President Bush’s Homeland Security Advisor might well be the object of such declassification.

But then the Public Interest Declassification Board itself, which advises the White House on declassification policy, is dominated by former government officials, including several intelligence agency leaders.  That has not prevented the Board from producing an important critique of declassification policy (Improving Declassification, 2008) and a more ambitious, somewhat less satisfactory report on classification policy (Transforming the Security Classification System, 2012).

“The members of the PIDB look forward to working with Mr. Wainstein as they continue their efforts to support a transformation of the security classification system,” the Board said in a blog posting.

A deeper problem is that the Obama White House appears to be incapable of acting on the recommendations from the Board, even though it requested them.  Nearly a year has passed since the Board’s last report, and no response from the White House has been forthcoming.  It’s not even clear who would be expected to respond– the National Security Advisor? the Homeland Security Advisor? the Director of National Intelligence (who also serves as “Security Executive Agent”)?

In the absence of effective White House action, Senators Jeanne Shaheen (D-NH) and James E. Risch (R-ID) have introduced legislation that builds on the 2012 PIDB report “to facilitate and enhance the declassification of information that merits declassification” (S. 1464).

William Arkin’s “American Coup”

In its endless pursuit of national security, the United States has compromised core Constitutional values including civilian control of the military and states’ rights, writes William M. Arkin in his new book “American Coup” (Little, Brown, 2013).

Since 9/11, a growing fraction of the population been mobilized and credentialed in support of homeland security — whether as law enforcement, first responders, or those who simply “see something and say something.”

“What is military and what is civilian is increasingly obscured,” Arkin writes. “The state and local police forces are militarized and networked into one; states have their own intelligence establishments; the big cities make their own foreign policies.”

What concerns Arkin, and what his book helps to illuminate, is what he describes as a parallel apparatus of executive authority that has developed outside of Constitutional norms (and beyond public awareness) to respond to national emergencies– catastrophic acts of terrorism, nuclear disasters, threats to presidential survival, or other extraordinary events.

Some of this is familiar ground, and has been previously described under the rubric of Continuity of Government, or Continuity of Operations, dating back to the Eisenhower Administration. But it has expanded and been formalized, Arkin says, in a series of classified Presidential Emergency Action Documents (PEADs) that assert all but unchecked executive power.  And while those administrative instruments are technically dormant most of the time, they exercise a baleful influence on the normal conduct of political life, he argues.

Despite its garish and off-putting title (and subtitle: “How a Terrified Government is Destroying the Constitution”), “American Coup” is not a manifesto, nor a call to action.

What makes the book interesting and valuable, rather, is its close reading of official documents in search of clues to undisclosed power structures. Arkin is a careful student and a subtle analyst of military doctrine, a neglected genre rich with insights waiting to be discovered.  For some readers, the 100 pages of endnotes will be the most rewarding part of the book.

Arkin observes, for example, that an official U.S. Army history states that martial law has only been declared once in United States history. But an Army field manual reports that martial law has been imposed four times. The Justice Department said there had been two such cases.  All of these are in error, he concludes, and reflect inconsistent definitions of the term. Meanwhile, he reports that the Army issued a new official definition of martial law in 2010 “for the first time in years.”

Arkin is the co-author (with Dana Priest) of “Top Secret America,” and many other works of research into national security policy.

“American Coup” was written prior to the revelations by Edward Snowden of unsuspected bulk collection of American telephone records by the National Security Agency, and such practices are not specifically discussed in the book. But Arkin would likely argue that the Snowden revelations are a special case of a more general phenomenon, in which national security is invoked to justify secret actions that exceed the bounds of public consent.

Arkin does not propose any kind of policy response to the political problems he perceives.  In fact, beyond some marginal steps that might be taken, he says that “bigger changes are blocked” by the powers that be.  Those who believe otherwise will need to look elsewhere.

Intelligence Agency Budgets Revealed in Washington Post

Secret intelligence agency budget information was abundantly detailed in the Washington Post yesterday based on Top Secret budget documents released by Edward Snowden.  See “U.S. spy network’s successes, failures and objectives detailed in ‘black budget’ summary” by Barton Gellman and Greg Miller, Washington Post, August 29.

The newly disclosed information includes individual agency budgets along with program area line items, as well as details regarding the size and structure of the intelligence workforce.  So one learns, for example, that the proposed budget for covert action in FY2013 was approximately $2.6 billion, while the total for open source intelligence was $387 million.

Some of the information only confirms what was already understood to be true. The budget for the National Security Agency was estimated to be about $10 billion, according to a recent story in CNN Money (“What the NSA Costs Taxpayers” by Jeanne Sahadi, June 7, 2013). The actual NSA budget figure, the Post reported, is $10.8 billion.

And the involuntary disclosure of classified intelligence budget information, while rare, is not unprecedented.  In 1994, the House Appropriations Committee inadvertently published budget data for national and military intelligence, the size of the CIA budget, and other details. (“$28 Billion Spying Budget is Made Public by Mistake” by Tim Weiner, New York Times, November 5, 1994)

But the current disclosure of intelligence budget information dwarfs all previous releases and provides unmatched depth and detail of spending over a course of several years, based on original documents.  The disclosure is doubly remarkable because the Post chastely refrained from releasing about 90% of the Congressional Budget Justification Book that it obtained.  “Sensitive details are so pervasive in the documents that The Post is publishing only summary tables and charts online,” Post reporters Gellman and Miller wrote.

This is not a whistleblower disclosure; it does not reveal any illegality or obvious wrongdoing. On the contrary, the underlying budget document is a formal request to Congress to authorize and appropriate funding for intelligence.

But the disclosure seems likely to be welcomed in many quarters (while scorned in others) both because of a generalized loss of confidence in the integrity of the classification system, and because of a more specific belief that the U.S. intelligence bureaucracy today requires increased public accountability.

Though it has never been embraced as official policy, the notion of public disclosure of individual intelligence agency budgets (above and beyond the release of aggregate totals) has an honorable pedigree.

In 1976, the U.S. Senate Church Committee advocated publication of the total intelligence budget and recommended that “any successor committees study the effects of publishing more detailed information on the budgets of the intelligence agencies.”

In a 1996 hearing of the Senate Intelligence Committee, then-Chair Sen. Arlen Specter badgered DCI John Deutch about the need for intelligence budget secrecy.

“I think that you and the Intelligence Community and this committee have got to do a much better job in coming to grips with the hard reasons for this [budget secrecy], if they exist. And if they exist, I’m prepared to help you defend them. But I don’t see that they exist. I don’t think that they have been articulated or explained,” the late Sen. Specter said then.

Committee Vice Chair Sen. Bob Kerrey added: “I would concur in much of what the Chairman has just said. I do, myself, believe not only the top line, but several of the other lines of the budget, not only could but should, for the purpose of giving taxpayer-citizens confidence that their money is being well spent.”

In 2004, the 9/11 Commission itself recommended disclosure of intelligence agency budgets: “Finally, to combat the secrecy and complexity we have described, the overall amounts of money being appropriated for national intelligence and to its component agencies should no longer be kept secret” (at page 416, emphasis added).

These are clearly minority views.  They could have been adopted at any time — as disclosure of the aggregate total was — but they haven’t been.  (And even these voices did not call for release of the more detailed budget line items that are now public.)  And yet they are not totally outlandish either.

The initial response of the executive branch to the Washington Post story will be to hunker down, to decline explicit comment, and to prohibit government employees from viewing classified budget documents that are in the public domain.  Damage assessments will be performed, and remedial security measures will be imposed.  These are understandable reflex responses.

But in a lucid moment, officials should ponder other questions.

How can public confidence in national security secrecy be bolstered?  Is it possible to imagine a national security secrecy system that the public would plausibly view not with suspicion but with support, much as the strict secrecy of IRS tax returns is broadly understood and supported?  What steps could be taken to reduce national security secrecy to the bare minimum?

Looking further ahead, is it possible to devise an information security policy that is based on “resilience” to the foreseeable disclosure of secrets rather than on the fervently pursued prevention of such disclosure?

US Cyber Offense is “The Best in the World”

The subject of offensive cyber action by the U.S. government was classified for many years and was hardly discussed in public at all.  Then several years ago the possibility of U.S. cyber offense was formally acknowledged, though it was mostly discussed in the conditional mood, as a capability that might be developed and employed under certain hypothetical circumstances.

Today, however, U.S. offensive cyber warfare is treated as an established fact.  Not only that but, officials say, the U.S. military is pretty good at it.

“We believe our [cyber] offense is the best in the world,” said Gen. Keith B. Alexander, director of the National Security Agency and Commander of U.S. Cyber Command. His comments appeared in newly published answers to questions for the record from a March 2013 hearing of the House Armed Services Committee (at p. 87).

“Cyber offense requires a deep, persistent and pervasive presence on adversary networks in order to precisely deliver effects,” Gen. Alexander explained in response to a question from Rep. Trent Franks (R-AZ). “We maintain that access, gain deep understanding of the adversary, and develop offensive capabilities through the advanced skills and tradecraft of our analysts, operators and developers. When authorized to deliver offensive cyber effects, our technological and operational superiority delivers unparalleled effects against our adversaries’ systems.”

“Potential adversaries are demonstrating a rapidly increasing level of sophistication in their offensive cyber capabilities and tactics. In order for the Department of Defense to deny these adversaries an asymmetric advantage, it is essential that we continue the rapid development and resourcing of our Cyber Mission Forces.”

In response to another question for the record from Rep. James R. Langevin (D-RI), Gen. Alexander said that “Over the next three years we will train the Cyber Mission Forces that will perform world-class offensive and defensive cyber operations as part of our Cyber National Mission Teams, Cyber Combat Mission Teams and Cyber Protection Forces. We do not require additional authorities or resources to train the currently identified cyber professionals” (at page 85).

See Information Technology and Cyber Operations: Modernization and Policy Issues to Support the Future Force, hearing before the House Armed Services Committee, Subcommittee on Intelligence, Emerging Threats and Capabilities, March 13, 2013 (published July 2013).

At the time of his confirmation hearing before the Senate Armed Services Committee in 2010, Gen. Alexander was asked in a pre-hearing question, “Has the U.S. ever ‘demonstrated capabilities’ in cyberspace in a way that would lead to deterrence of potential adversaries?”  He replied (Question 15p):  “Not in any significant way.”

This seems to have been an incomplete response. Committee Chairman Sen. Carl Levin noted in questions for the record of Gen. Alexander’s confirmation hearing in 2010 that in fact offensive cyber capabilities had already been demonstrated: “Unfortunately, we also learned, after asking a specific question following the appearance of a Washington Post article reporting on an apparent offensive cyber operation, that DOD has undertaken a number of offensive cyber operations in the last several years, none of which was reported to the Armed Services Committees….”

On the vital question of oversight, Senator Levin asked:  “Lieutenant General Alexander, do you agree that it is appropriate that the Armed Services Committees be informed of all U.S. offensive cyber operations?”

Gen. Alexander provided an affirmative response, but in a way that altered the terms of the question:  “Yes, I agree that in almost all circumstances the Armed Services Committees should be informed in a timely manner of significant offensive cyber operations conducted by CYBERCOM.”

 

IG Says Homeland Security Secrecy Program is in Good Shape

The Department of Homeland Security “is streamlining classification guidance and more clearly identifying categories of what can be released and what needs to remain classified,” according to a new report from the DHS Inspector General.

The Reducing Over-classification Act of 2010 required the Inspector General at each executive branch agency that classifies information to evaluate the agency’s classification practices and to report on the results by the end of September 2013.  The new DHS report is the first of the bunch to be published.  See Reducing Over-classification of DHS’ National Security Information, DHS Office of Inspector General Report OIG-13-106, August 2013.

The report sheds new light on DHS classification practices and provides some useful criticism, but it has a serious conceptual flaw.

The flaw lies in the report’s definition of the problem:  “Over-classification is defined as classifying information that does not meet one or more of the standards necessary for classification under Executive Order 13526.”

The problem is that this is a definition of misclassification, not over-classification.  If information does not meet the standards for classification — for example, if it is not government information — then its classification is simply a mistake, not an act of over-classification.  By using such a definition, the DHS IG fails to recognize the real dimensions of over-classification and overlooks its most vexing aspect:  the classification of information that arguably does meet the standards of the Executive Order but that need not or should not be classified.

Over-classification in this deeper sense is at the center of many current controversies over government secrecy policy.  Can the role of the CIA in targeted killing operations be acknowledged?  Should the fact of bulk collection of telephone metadata records by NSA have been admitted before it was leaked?  Though such information was eligible for classification under the Executive Order, the decision to classify it now appears questionable.

But such issues are unfortunately beyond the scope of the DHS IG report, which does not allow for the possibility that information could both “meet the standards necessary for classification under the Executive Order” and still be over-classified.  Not a single instance of such over-classification was identified.  Rather, the IG concluded that DHS has “successfully implemented all policies and procedures required” and thus “DHS has a strong [classification] program.”

Despite its limited conception of the problem, the IG report found some significant areas for improvement.  Notably, DHS classifiers have been using obsolete software to apply classification markings.  As a result, “59 of the 372 DHS we reviewed contained declassification, sourcing, and marking errors.”  A new Classification Marking Tool is currently being acquired by DHS.  Still, “eighty interviewees noted that they would like more hands-on training to ensure they could classify information properly.”

Curiously, the IG report found that DHS officials had an equivocal attitude towards efforts to challenge classification decisions.

“All persons interviewed knew and were trained on the process of formally or informally challenging a classification, but some stated that they would be reluctant to disagree with the originator’s classification.  They did not fear retribution from senior management, but they did not believe that they were experts in challenging classification” (p. 16).

However, DHS employees resisted the possibility of offering incentives to challenge classification decisions.  “When asked, 90 out of 100 DHS derivative classifier interviewees said that they believed offering incentives may lead to unnecessary challenges, and challenges will be raised not in the spirit of reducing classification but for incentive reasons” (p. 10).

Such skepticism is totally speculative, and ought to be tested in practice.  But instead of proposing a pilot program to validate or discredit the use of incentives for classification challenges, the DHS Inspector General unfortunately just dropped the subject.

The IG report found that DHS had successfully performed the Fundamental Classification Guidance Review, leading to a 39 percent reduction in the number of security classification guides.

The report also noted that the classification statistics reported by DHS to the Information Security Oversight Office “may not be accurate,” and DHS officials acknowledged that there are “long-standing issues associated with the reliability and accuracy” of the reported numbers.

Despite its limitations, the DHS IG review seems to have been a useful exercise that focused new attention on the Department’s classification activities.  Additional reports from other agencies that conduct much larger classification programs are expected shortly.

Leaks Inspire GAO Review of “Classification Inflation”

“The recent disclosure of classified information regarding U.S. national security programs requires a thorough assessment of the current classification system,” wrote Rep. Duncan Hunter in a letter to the Government Accountability Office, the investigative arm of Congress.

The leaks by Edward Snowden, in other words, are a sign that there are serious problems in government secrecy policy.

In his June 19, 2013 letter, Rep. Hunter asked GAO to perform the desired assessment, and his request was endorsed by Rep. Martha Roby, chair of the House Armed Services Committee Subcommittee on Oversight and Investigations.  In a July 30 reply, GAO accepted the request and said it would “begin the work shortly.”

For Rep. Hunter, the starting point is a concern that unnecessary secrecy may put legitimate secrets at risk.  Overclassification is bad security policy.

“With access to classified information contingent on the issuance of security clearances, overclassification stands to dangerously expand access to material that should ordinarily be limited,” he wrote.  He therefore posed a series of questions that cover a range of classification policy issues.

He asked GAO to determine “the degree to which material is classified that does not materially impact national security.”  This is one definition of overclassification, though it is not one that is used or recognized by the executive branch.

Under the executive order on classification, a national security secret need not “materially impact national security.”  It is enough if its unauthorized disclosure could reasonably be expected to cause damage to national security in the judgment of a person who is authorized to classify.  If the authorized classifier’s judgment reflects bias, inertia, erroneous or incomplete information– well, the executive order has nothing to say about that.

The result, Rep. Hunter said in a news release, is that “There’s real classification inflation going on, putting information that should be available to the public out of view and creating a degree of exposure by widening access to sensitive information that should be limited.”

Rep. Hunter also asked GAO to review “the degree to which material is classified in excess of current security procedures,” which is another form of overclassification.  It refers to information that is be classified Top Secret when it should only be classified Secret, for example.

Rep. Hunter asked “Whether narrowing classification requirements would reduce the need for nearly 5 million individuals to hold security clearances, and whether reducing that number would limit security disclosures.”

It stands to reason that less classification would likely entail the need for fewer clearances and that a leaner secrecy and security system would be easier to manage with improved quality control.  But there is no particular reason to suppose that the number of leakers is directly proportional to the number of clearances.

Crucially, Rep. Hunter asked GAO to investigate “if there are accountability systems in place to review agency and employee classification decisions to identify persistent instances of overclassification.”  There aren’t!

While classification guidance is supposed to be reviewed by the classifying agency itself every five years, and there are isolated mechanisms for challenging specific classification decisions, there is no systemic procedure for independent review and correction of classification judgments.  There should be.  (An extended argument for impartial review of classification decisions is here.)

For good measure, Rep. Hunter asked GAO to consider “the degree to which excessive classification harms information sharing” and “the effectiveness of the process to declassify information.”

Though his request letter was broadly framed with respect to classification policy generally, it appears that the GAO response will focus on classification activity within the Department of Defense.  Rep. Hunter is a member of the House Armed Services Committee and Rep. Roby is a HASC subcommittee chair, and so DoD secrecy policy is clearly within their jurisdiction.

The unauthorized disclosures of classified information by Edward Snowden have presented numerous important issues of public policy.  Is bulk collection of telephone and email records an acceptable practice, or should it be categorically proscribed?  How did congressional oversight fail to accurately gauge and to effectively represent conflicted public sentiment concerning domestic surveillance?  What is to be done with the Foreign Intelligence Surveillance Court?

But Rep. Hunter identified secrecy policy as a deeper systemic problem that also requires a constructive response.  With the GAO’s new engagement, and with the ongoing work of agency Inspectors General under the Reducing Over-classification Act, secrecy policy is now receiving some long overdue attention that may yet yield corrective action.

The pending GAO review of secrecy policy was previously reported in “Manning, Snowden Trigger First-of-its-Kind Secrecy Review” by Shane Harris, Foreign Policy, July 31;  “‘Classification inflation’ at Pentagon under investigation: GAO” by Shaun Waterman, Washington Times, July 31;  “Too many classified papers at Pentagon? Time for a secrecy audit” by Anna Mulrine, Christian Science Monitor, August 2.

Army Establishes Insider Threat Program

On July 30, a military judge found Army Pfc. Bradley Manning guilty of multiple violations of the Espionage Act and other laws because of his unauthorized disclosure of restricted government records to the WikiLeaks website.

On July 31, the Secretary of the Army formally established the Army Insider Threat Program. Remarkably, this is still a pending initiative rather than an accomplished fact.

The program “will ensure the security and safety of Army computer networks by establishing an integrated capability to monitor and audit user activity across all domains to detect and mitigate activity indicative of insider threat behavior,” wrote Army Secretary John M. McHugh in Army Directive 2013-18.

The directive requires development and implementation of “a technical capability to monitor user activity on the Secure Internet Protocol Router Network” used by Manning as well as on the Joint World Intelligence Communication System.

In order to facilitate the identification of insider threats, the directive authorizes the sharing of counterintelligence and a variety of other sensitive information, including personal medical information.  (“The Surgeon General will provide information from medical sources, consistent with privacy laws and regulations, to authorized personnel to help them recognize the presence of an insider threat.”)

The new Army directive was issued in response to a November 21, 2012 Obama White House memorandum on “National Insider Threat Policy and Minimum Standards for Executive Branch Insider Threat Programs.”

Some government insider threat programs go beyond encouraging sensible security practices, and seem to promote free-ranging suspicion in the workplace.

A slide prepared by the Defense Information Systems Agency for an online training module on insider threats suggests that an employee who “speaks openly of unhappiness with U.S. foreign policy” may represent a risk.  (The only thing more troubling might be someone who speaks openly of happiness with U.S. foreign policy.)  See “Unhappy With U.S. Foreign Policy? Pentagon Says You Might Be A ‘High Threat’” by Matt Sledge, Huffington Post, August 7.

On June 21, 2013 the Director of National Intelligence issued Intelligence Community Directive 703 on “Protection of Classified National Intelligence, Including Sensitive Compartmented Information.”

The directive summarizes and re-states classified information security policy, including little-known facts such as: “The Director of the Central Intelligence Agency (CIA) provides SCI access determinations and Sensitive Compartmented Information Facility (SCIF) accreditation for the legislative and judicial branches of the U.S. Government.”

Military Tests Data Mining of Social Media for Special Ops

Updated below, Updated again, 8/9/13

The U.S. military has been investigating the use of sophisticated data mining tools to probe social media and other open sources in order to support military operations against money laundering, drug trafficking, terrorism and other threats.  But the window for doing so may be closing as the social media landscape changes, according to an internal assessment.

U.S. Special Operations Command (SOCOM) National Capital Region (NCR) conducted a series of experiments over the past year under the rubric “QUANTUM LEAP” that was intended to test “non-traditional” tools and techniques to advance the SOCOM mission. [In fact, only the first experiment was carried out; see update below.]

An after-action report on the first experiment said it “was successful in identifying strategies and techniques for exploiting open sources of information, particularly social media, in support of a counter threat finance mission.”  Counter threat finance refers to efforts to disrupt an adversary’s finances.  A copy of the SOCOM NCR report was obtained by Secrecy News.  See “Project QUANTUM LEAP: After Action Report,” 12 September 2012.

“Major lessons learned were the pronounced utility of social media in exploiting human networks, including networks in which individual members actively seek to limit their exposure to the internet and social media…,” the report said.

The QUANTUM LEAP project, which did not utilize classified intelligence, relied heavily on participation by private sector firms identified in the report, who demonstrated tools they had developed “to enhance the ability to discover relationships, human networks, and geospatial features” from open source data.

A tool called Social Bubble permitted the search of Twitter-related content “to explore human networks associated with the [counter threat finance] scenario and enabled identification of various entities… associated with the moneylaundering network.”  A tool called Recon was used to reconstruct source documents from a raw data stream.  Another tool served to “collect large quantities of data from the ‘deep web’, or sources which are accessible via the internet but not necessarily indexed or linked via a world wide web page.”  And another called Semantica “is capable of ingesting structured and semi-structured data and displaying it in a ‘triplet’ format, e.g. two entities and a relationship, such as [A is owned by B].”

“More than 200 additional open-source tools and sources were identified relevant to counter threat finance,” the SOCOM report said.

The report said that as valuable as the opportunity created by new techniques for data mining of open sources appears to be, it may prove to be transient.

“We are currently in a ‘window’ of opportunity for exploitation of social media sources for application to CTF [counter threat finance] or other SOCOM NCR missions. This window could be as narrow as 18-24 months before the social media phenomenon transforms. This future transformation is unknown and could offer additional opportunities, or existing opportunities could be closed, but the only thing that is certain is that there will continue to be rapid change.”

There are also unresolved legal issues.

“Legal review of the appropriate use and application of social media data is in its infancy. Social media is transforming notions of privacy and distinctions between personally identifiable information (PII) and self-reported public information will have to be established by precedent in case law,” the report said.

“Almost all information relevant to the QUANTUM LEAP experiment has a locative context [revealing the location of the source]. Location based services (LBS) are becoming integrated into every facet of our lives and are becoming much more accepted. There is a cultural/generational component to acceptance of LBS in social media,” the report said.

SOCOM Public Affairs did not respond to requests for comment or further information about the project, and the report describing the effort (labeled “draft”) has not been formally released.  However, the report was kept unclassified, facilitating its dissemination and discussion among the interested public.

Meanwhile, the future of SOCOM National Capital Region is itself uncertain, as Congress has thus far declined to authorize or appropriate funds that were requested for it in the coming fiscal year.

“The Committee remains unclear about the function, purpose, and costs associated with the operations, infrastructure, and facilities for this entity [SOCOM National Capital Region] both in the interim phase and the final end-state,” according to a June 2013 report of the House Appropriations Committee. “Further, the Committee has received conflicting information over the course of the last year as to the purpose of this entity.”

Project QUANTUM LEAP derives its name and inspiration from an initiative in the late 1990s to incorporate advanced technologies into Naval Special Warfare capabilities.  That earlier Project QUANTUM LEAP was described in “Stimulating Innovation in Naval Special Warfare by Utilizing Small Working Groups” by Thomas A. Rainville, Master’s Thesis, March 2001.

Update (Aug. 6, 4:30 pm): Ken McGraw of U.S. Special Operations Command advised as follows: “We cannot confirm the validity of any of the information listed in the After Action Report. The only information we have received so far is the program is no longer in existence and the people who worked on the program are no longer there. We will provide you additional information when we get it.”

Update 2 (Aug. 9, 11:00 am): Ken McGraw of U.S. Special Operations Command provided the following information:

Quantum Leap was a small, little known experiment that was defunded some time ago so it took us a while to get answers to peoples’ questions.

Question: What is the current status of Project QUANTUM LEAP?
Answer: Quantum Leap was defunded and is no longer in existence.

Question: Were all of the planned six parts of the project carried out?
Answer: No. Only one of the six parts was completed.

Question: Is it possible to briefly summarize the utility of the Project to date?
Answer: As I stated above, Quantum Leap was a very small, little-known, inconsequential experiment that was defunded. The reason it took us so long to get any information on it was because it was so small and inconsequential. The people who worked on the experiment are no longer even in the headquarters. The real focus of Quantum Leap was creating an environment and a process that would improve collaboration with interagency organizations.

It is unfortunate that people took a draft after action report that was filled with incorrect information, as best we can determine, and made quantum leaps in judgment about the importance of the experiment. The experiment was so inconsequential the after action report was never finalized.

Question: Will it have any continuing legacy for SOCOM (or SOCOM-NCR)?
Answer: Quantum Leap will not have a continuing legacy.

Ken McGraw
Public Affairs Officer
US Special Operations Command

Publishing Secrets is a Crime, OLC Said in 1942

Newspapers can be held criminally liable for publishing secret information, according to a newly disclosed Office of Legal Counsel (OLC) opinion dating from World War II.  A reporter who writes a story based on defense secrets could be found to have violated the Espionage Act for revealing secret information, as could his editor and publisher.

“A reporter who kept or copied a Navy dispatch containing a list of Japanese ships expected to take part in an upcoming naval battle, and later submitted for publication a newspaper article with information from the dispatch, appears to have violated… the Espionage Act,” the 1942 OLC opinion said.

“Whether the managing editor and publisher of the newspaper that published the article might also be criminally liable under the Espionage Act depends on their intent and knowledge of the facts.”  See “Criminal Liability for Newspaper Publication of Naval Secrets,” Office of Legal Counsel, June 16, 1942.

Under the authority of the Attorney General, the Office of Legal Counsel provides authoritative legal advice to the President and to executive branch agencies. The 1942 OLC opinion has no binding legal force, and it does not necessarily represent executive branch views today. But it fills in a gap in the legal genealogy of leak prosecutions.  It also highlights the latent possibility under the Espionage Act of criminalizing not just leaks but also news reports based on them.

Although not named by OLC, the reporter whose actions prompted the opinion was Stanley Johnston of the Chicago Tribune. Based on a classified document that was shared with him by a naval officer, Johnston wrote a front-page story in the Tribune on June 7, 1942 identifying the Japanese order of battle and implicitly revealing that U.S. intelligence had been able to decrypt Japanese military communications. A grand jury was convened to investigate the matter but was disbanded at the request of the Secretary of the Navy in order to avoid further publicizing the disclosure.  (Gabriel Schoenfeld recounted the episode in his 2010 book Necessary Secrets.)

“The reporter’s conduct in taking and copying a dispatch of immense importance — as this one seems obviously to have been — is characterized by real turpitude and disregard of his obligations as a citizen,” the OLC opinion said. “It is hard to believe that any jury or judge would take a sympathetic view of his case, or seek to free him on any narrow view of the facts of the law. He thoroughly deserves punishment.”

In an assessment that may resonate in some quarters in the networked world of the following century, the OLC opinion said that the newspaper’s broad distribution aggravated the original offense to the point of evil.

“In this case, the vast circulation of the newspapers involved puts the reporter in a position where he must pause and consider the consequences of his act. At best, his conduct was reckless and negligent, rather than specifically intended to do harm. Yet the negligence and recklessness were of such magnitude as to be fairly characterized as criminal and evil…,” the OLC opinion said.

*    *    *

The Office of Legal Counsel opinion on potential criminal liability for newspapers appeared this month in an extraordinary new collection of previously unpublished OLC opinions written between 1933 and 1977. (Formal publication of OLC opinions did not begin until 1977.)

“This volume begins what the Office of Legal Counsel intends to become a continuing supplement to its primary series of published opinions, covering all years during which the Office has been in existence,” according to the Foreword by Virginia Seitz, the current head of OLC, and Nathan A. Forrester.

The contents of the volume are wonderfully rich and interesting.

A 1937 OLC opinion concludes, with evident regret, that there is no legal basis for censoring the broadcast of a speech by Leon Trotsky. “The Federal Communications Commission does not have statutory authority to censor the telephone transmission from Mexico into the United States of a speech by Leon Trotzky.”

A 1974 opinion recommends that the FBI exercise its discretion to release files concerning a New Left figure even though it may have a legal right to withhold the files:

“In the last analysis, the only policy reason for withholding most of the requested documents is to prevent a citizen from discovering the existence of possible misconduct and abuse of government power directed against him. In my view, this is not only no reason for asserting the exemption; it is a positive reason for declining to use it, even where other reasons for asserting it exist. The obtaining of information of this sort is perhaps the most important reason for which the Freedom of Information Act exists.” The opinion was signed by then-OLC head Antonin Scalia.

The “legality and practical consequences” of a U.S. blockade of Cuba are considered in a 1962 opinion, and the use of federal marshals to protect civil rights workers in Mississippi is discussed in a 1964 opinion.

Other OLC opinions treat the invasion of Cambodia during the Vietnam War, Watergate, and many other topics.  The whole collection is an unexpected feast of historical and legal scholarship that is surprisingly accessible to non-specialist readers.

“Notwithstanding that some of these opinions may no longer be good law, our hope is that all will prove to be of value to legal practitioners and legal historians. This volume was a labor of love and respect for the history, traditions, and people of OLC and the Department of Justice,” the OLC editors wrote.

Marine Corps Commandant Accused of Improper Classification

Marine Corps Commandant Gen. James Amos exercised “unlawful command influence” in an attempt to punish Marines who allegedly urinated on enemy corpses in Afghanistan in 2011, attorneys for the Marine defendants said.  And then Gen. Amos improperly classified information in an effort to conceal his own misconduct, the attorneys said.

“The evidence shows that the CMC [Commandant, Marine Corps] could not resist the temptation and decided to further the concealment of his unlawful intentions by ordering…, without proper authority or basis, the imposition of a secret classification upon the testimony and materials disclosed by the previously unclassified investigations of the alleged desecration cases,” defense attorneys said in a motion filed last week.

It’s a sordid story all around. What makes it interesting here is that a Marine Corps official warned in 2012 that the classification action was a mistake that could backfire against the Marine Corps if it ever became public.

“If this goes to the next level of administration or judicial action, there are some additional considerations that a lawyer, versed in classification issues, might be able to use to shoot holes in our whole process and bring the whole decision making process into question,” wrote William Potts in an internal email quoted in last week’s motion.

Improbably enough, he then cited the FAS Project on Government Secrecy and me (at page 19). A potential court-martial of the defendants would “spread us all over the media; would probably get Steven Aftergood, Project on Government Secrecy, involved…. He’d make us look silly if he supported a defense contention that the video was improperly classified.”

There is a creaky old saying to the effect that you should not do (or say or write or email) anything “if you wouldn’t want to see it on the front page of the Washington Post.” A similar principle might be applicable in the world of national security classification.  If you couldn’t justify the classification of information to an outside reviewer, then you probably shouldn’t classify it.

Unfortunately, in the normal course of business, there are few occasions on which any official is ever called upon to justify his classification action to an impartial, independent observer.  That’s just not the way the classification system is currently structured.  But it could be.  Increasing the number of opportunities for independently evaluating classification actions would quickly serve to improve the quality and legitimacy of classification activity.

For more background on the Marine Corps case, see these stories in Military Times and CNN.