Secrecy News

Secretary of Defense Leon Panetta and other officials have warned that if U.S. military spending is cut significantly, the unacceptable result would be a “a hollow force incapable of sustaining the missions it is assigned.”

But a new critique from the Congressional Research Service suggests that the use of the term “hollow force” is inappropriate and unwarranted.

“Historically, there were two periods– post-Vietnam and again in the 1990s– when the term ‘hollow force’ was used to describe the U.S. armed forces.”  It referred to “forces that appear mission-ready but, upon examination, suffer from shortages of personnel and equipment, and from deficiencies in training.”

But a close review of the circumstances that generated a hollow force in the past does not support the use of the term today, the CRS said.  “Most of the conditions that existed in the 1970s do not exist today.”

Among other things, defense procurement spending has surged in recent years to enable significant modernization of military forces.

“Even if modernization funds become more limited in future defense budgets, overall budget data suggest the Services would enter this period after having invested in modernized forces about as substantially as in the weapons-driven buildup of the 1980s.”

“CRS has calculated that when recent amounts for weapons modernization are compared to amounts in the mid-1980s, the total inflation-adjusted dollar value of relatively modern equipment available to forces today (i.e., equipment purchased within the past 10 years) appears relatively robust.”

“Given these conditions, it can be argued that the use of the term ‘hollow force’ is inappropriate under present circumstances,” the CRS report said.

A copy of the new CRS report was obtained by Secrecy News.  See A Historical Perspective on “Hollow Forces,” January 31, 2012.

A House-Senate conference report this week called on the Administration to accelerate the use of civilian unmanned aerial systems (UAS), or “drones,” in U.S. airspace.

The pending authorization bill for the Federal Aviation Administration directs the Secretary of Transporation to develop within nine months “a comprehensive plan to safely accelerate the integration of civil unmanned aircraft systems into the national airspace system.”

“The plan… shall provide for the safe integration of civil unmanned aircraft systems into the national airspace system as soon as practicable, but not later than September 30, 2015.”

The conference bill, which still awaits final passage, also calls for establishment of UAS test ranges in cooperation with NASA and the Department of Defense, expanded use of UAS in the Arctic region, development of guidance for the operation of public unmanned aircraft systems, and new safety research to assess the risk of “catastrophic failure of the unmanned aircraft that would endanger other aircraft in the national airspace system.”

The Department of Defense is pursuing its own domestic UAS activities for training purposes and “domestic operations,” according to a 2007 DoD-FAA memorandum of agreement.  (“Army Foresees Expanded Use of Drones in U.S. Airspace,” Secrecy News, January 19, 2012.)

Over the past decade, the number of U.S. special operations forces (SOF) personnel has nearly doubled, while budgets for special operations have nearly tripled, and overseas deployments have quadrupled, according to a newly updated report from the Congressional Research Service.

“Special Operations Forces are elite military units with special training and equipment that can infiltrate into hostile territory through land, sea, or air to conduct a variety of operations, many of them classified,” the CRS report explains. “SOF personnel undergo rigorous selection and lengthy specialized training. The U.S. Special Operations Command (USSOCOM) oversees the training, doctrine, and equipping of all U.S. SOF units.”

Following an overview of the structure of U.S. special operations forces, the CRS report discusses the implications for special operations of recent legislation including the 2012 defense authorization act.  See U.S. Special Operations Forces (SOF): Background and Issues for Congress, January 11, 2012.

A copy of the new U.S. Special Operations Command Fact Book 2012, prepared by USSOCOM Public Affairs, is available here.

Other noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following:

Arms Sales: Congressional Review Process, February 1, 2012

The Nunn-McCurdy Act: Background, Analysis, and Issues for Congress, January 31, 2012

Immigration-Related Detention: Current Legislative Issues, January 12, 2012

A handful of historical intelligence satellite images were declassified last month to coincide with a new display of the GAMBIT and HEXAGON spy satellites at the National Air Force Museum at Wright-Patterson Air Force Base.

The GAMBIT and HEXAGON satellites were formally declassified last September on the occasion of the fiftieth anniversary of the National Reconnaissance Office.  At that time, the NRO released voluminous documentation on the development of those satellites.  But the associated imagery, which is held by the National Geospatial-Intelligence Agency, was not released.  Now a small number of satellite images have been made public.

However, the newly disclosed images are not originals, but are embedded in “posters” published by the NRO.  As such, they do not lend themselves to detailed analysis, complained Charles P. Vick of GlobalSecurity.org.  Nor are the original negatives of the declassified photos available for public inspection.

There is an annotation on the released images indicating that they were declassified on January 13, 2012 by the Director of National Intelligence, which would be consistent with the provisions of the 1995 executive order 12951.

“The images have undoubtedly been degraded, because GAMBIT and HEXAGON’s best imagery capabilities remain classified,” wrote Dwayne Day in The Space Review. “These photographs are hopefully the first in many yet to come, and will help us better understand the battles in the shadows of the Cold War.”

Among other things, the NRO also released a new edition of the 1973 histories of GAMBIT and HEXAGON written by Robert L. Perry.

“Perry’s histories… serve as exemplars of the art and craft of historians. They are rich in detail, well-sourced, and written with engaging prose,” according to an informative introduction by James D. Outzen of the Center for the Study of National Reconnaissance.

Unfortunately, the new edition, while handsome, is not exemplary because it obscures the redaction of material that is still considered classified:  “With respect to redacted material, we have edited the volumes to smooth the flow of language in the volume, rather than indicate where material was redacted.”  This was a mistake.

Remarkably, the NRO initiative to declassify GAMBIT and HEXAGON program information, including imagery, dates back to 1997.  At that time, a seven-month implementation schedule was optimistically anticipated.

“I would like to hiqhliqht this declassification effort with a National Reconnaissance Office (NRO) ceremony (including the release of selected declassified imagery from both systems) in October 1997,” wrote NRO Deputy Director Keith R. Hall in a March 1997 memorandum that was obtained by Jeffrey Richelson of the National Security Archive.

As it turned out, the declassification process took 14 years, not seven months.

A newly revised U.S. Air Force directive on continuity of operations under emergency circumstances refers matter-of-factly to Raven Rock Mountain Complex, a largely restricted U.S. government facility in Pennsylvania.  See Air Force Continuity of Operations (COOP) Program, Air Force Instruction 10-208, 15 December 2011.

Raven Rock, also known as Site R, has been operational since 1953 for purposes of emergency communications, disaster relocation and recovery.  But most operations at the facility have been classified, and the facility itself was rarely mentioned in official publications during most of the past half century.  A previous edition of the new Air Force Instruction that was issued in 2005 made no reference to Raven Rock.

More than two years ago, President Obama set a December 31, 2013 deadline for completing the declassification processing of a backlog of more than 400 million pages of classified historical records that were over 25 years old.  But judging from the limited progress to date, it now seems highly unlikely that the President’s directive will be fulfilled.

As of December 2011, following two years of operation, the National Declassification Center had completed the processing of only 26.6 million pages of the 400 million page backlog, according to the latest NDC semi-annual report.  If the Center increased productivity by a factor of ten, that would still be insufficient to achieve its goal.

The looming failure to comply with an explicit presidential order is a sign of the growing autonomy of the secrecy system, which to a surprising extent is literally out of control.

One of the obstacles to a more efficient declassification process is a 1999 statute known as the “Kyl-Lott” Amendment, which requires record collections to be certified as “highly unlikely” to contain classified nuclear weapons information known as Restricted Data or Formerly Restricted Data.  In many cases, today’s backlogged records were not certified as required by the originating agencies and therefore they must now undergo an additional review.

“This unexpected review step will certainly impact our ability to complete all declassification processing by the deadline,” according to the new semi-annual report from the National Declassification Center.

The need for interagency cooperation to deal with the backlog of historical records awaiting declassification was anticipated by President Obama.  “The Secretaries of State, Defense, and Energy, and the Director of National Intelligence shall provide the Archivist of the United States with sufficient guidance to complete this task,” he wrote in a December 29, 2009 memo.

And in fact, agencies have devoted increased efforts to declassification.  “Once the enormity of the Kyl-Lott challenge was realized, many participating agencies have stepped up to ensure that their records meet this requirement,” according to NDC Director Sheryl J. Shenberger.

But under current procedures, it is hard to see any trajectory that will lead to elimination of the declassification backlog by December 2013.

One alternative way to proceed would be for the National Archives to seek legislative relief from the certification requirements of the Kyl-Lott Amendment, particularly with respect to so-called Formerly Restricted Data (FRD).  Most of the historical nuclear weapons information in the FRD category is of no special sensitivity and its presence should no longer pose an obstacle to expedited declassification.  In those cases where the information is sensitive, such as weapons design information, the Department of Energy is currently seeking authority to remove it from the FRD category and to redesignate it as Restricted Data.  This would further strengthen the case for amending Kyl-Lott to eliminate screening for FRD, thereby simplifying the declassification problem.

The possibility of increasing U.S. investment in the Middle East as a way to encourage democratic political transitions was examined in a new report from the Congressional Research Service.  See U.S. Trade and Investment in the Middle East and North Africa: Overview and Issues, January 20, 2012.

Other new or updated CRS reports that have not been made readily available to the public include these:

Australia: Background and U.S. Relations, January 13, 2012

European Union Enlargement, January 26, 2012

Updated below

Former CIA officer John Kiriakou this week became the latest person to be charged under the Espionage Act with unauthorized disclosures of classified information.  But unlike the previous defendants, Mr. Kiriakou was also charged with violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert intelligence officer to a journalist.

The Intelligence Identities Protection Act was enacted in 1982 to combat the efforts of Philip Agee and his colleagues to expose CIA personnel around the world.  The Act made it a felony to reveal the names of “covert agents,” i.e. intelligence officers who are under cover and whose identities are classified information.

But until now, the Act has never been used in a contested prosecution.  “There do not appear to be any published cases involving prosecutions under this act, despite some high-profile incidents involving the exposure of U.S. intelligence agents,” according to a Congressional Research Service report on the subject from last year.

(There has, however, been one conviction under the Act.  In 1985, former CIA clerk Sharon Scranage pleaded guilty to providing classified information in violation of the Act concerning U.S. intelligence operations in Ghana.  She served two years in jail.)

The Intelligence Identities Protection Act is one of the very few classification-related statutes that purport to apply to anyone, not only to government officials who possess authorized access to classified information.  The language of the Act explicitly indicates that it also applies to private individuals — reporters, researchers, or anyone else — who expose covert agents, if they do so as part of a “pattern of activities” and with the requisite knowledge and intent.

In the present case, Mr. Kiriakou is charged with providing the name of a “covert agent” in response to inquiries from a reporter, “Journalist A,” who then passed that information on to defense attorneys at Guantanamo.  (The attorneys used the information in a classified pleading that they filed in 2009, which is what first brought the unauthorized disclosure to official attention.)

An FBI affidavit attached to the criminal complaint against Kiriakou states repeatedly that no laws were broken by the defense team that received the classified information.  The FBI notably does not volunteer the same assurance concerning Journalist A (whose name is not yet on the public record), who actively solicited the proscribed information from Kiriakou and forwarded it to the defense attorneys.

But Journalist A would presumably not be subject to the Intelligence Identities Protection Act because his efforts were not part of a systematic effort to expose classified identities. (The name of the covert agent that he allegedly elicited and conveyed to the defense team at Guantanamo has not been publicly disclosed.)

According to the Congressional Research Service report, the Act “would appear to preclude the prosecution of a recipient of covered information, whether solicited or not, who publishes the information but has not engaged in a prohibited ‘pattern of activities’ intended to disclose the names of covert agents.”

The CRS report also makes the curious observation that “It is not an offense for… a covert agent to disclose his or her own identity.”  See Intelligence Identities Protection Act, January 28, 2011.

Mr. Kiriakou is the sixth individual to be charged in the Obama Administration’s unprecedented campaign against leaks of classified information to the media, following Shamai Leibowitz, Jeffrey Sterling, Thomas Drake, Bradley Manning and Stephen Kim.  Among other things, the Administration’s aggressive pursuit of leaks represents a challenge to the practice of national security reporting, which depends on the availability of unauthorized sources if it is to produce something more than “authorized” news.

Update: The Intelligence Identities Protection Act was criticized in a April 6, 1982 op-ed by then-Senator Joseph Biden entitled “A Spy Law That Harms National Security.” (h/t Historiographic Anarchy)

The use of unmanned aerial systems (UAS) within the United States is certain to increase in the years to come, as a new Army policy has recently made clear.  (“Army Foresees Expanded Use of Drones in U.S. Airspace,” Secrecy News, January 19.)  But in fact the use of unmanned aircraft or drones within U.S. airspace has already advanced to a degree that is not widely recognized.

As of 2010, the Federal Aviation Administration had already issued hundreds of “certificates of authorization” (COAs) for the domestic use of drones.

“Right now, today as we sit here, we have 251 certificates of authorization for unmanned aircraft, 140 of them are DOD related,” said Hank Krakowski of the FAA at an informative Senate hearing in September 2010.  “We have not rejected or denied any DOD COAs in 2010, and we keep moving forward.”

On the other hand, Mr. Krakowski cautioned, “While UASs offer a promising new technology, the limited safety and operational data available to date does not yet support expedited or full integration into the NAS [National Airspace System]. Because current available data is insufficient to allow unfettered integration of UASs into the NAS–where the public travels every day– the FAA must continue to move forward deliberately and cautiously, in accordance with our safety mandate.”

“Unmanned aircraft systems [were] originally and primarily designed for military purposes,” he noted. “Although the technology incorporated into UASs has advanced, their safety record warrants caution. As we attempt to integrate these aircraft into the NAS, we will continue to look at any risks that UASs pose to the traveling public as well as the risk to persons or property on the ground.”

See “The Integration of Unmanned Aircraft Systems (UASs) Into the National Airspace System (NAS): Fulfilling Imminent Operational and Training Requirements,” Senate Committee on Commerce, Science and Technology, September 13, 2010 (published September 2011).

In the 2012 National Defense Authorization Act, Congress included language requiring a report on “the integration of unmanned aerial systems into the national airspace system” (h/t Emptywheel).

The legality of the use of drones in CIA targeted killing programs is among the topics that is explored in the brand new issue of the Journal of National Security Law and Policy on the subject of covert war.

President Obama has used “signing statements” to take exception to provisions of law enacted by Congress with significantly less frequency than did President George W. Bush.  He has also abandoned reference to the “unitary executive” concept that was favored by the Bush Administration.

In most other respects, however, the Obama Administration’s use of signing statements is consistent and continuous with recent past practice, according to a newly updated report from the Congressional Research Service.  The report reviewed the basis for signing statements, their legal implications, and the controversy that has surrounded them.  See Presidential Signing Statements: Constitutional and Institutional Implications, January 4, 2012.

Some other new or newly updated CRS reports that have not been made readily available to the public include the following (all pdf).

Legal Issues Associated with the Proposed Keystone XL Pipeline, January 23, 2012

“Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits, January 23, 2012

Federal Aid to Roads and Highways Since the 18th Century: A Legislative History, January 6, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, January 6, 2012

Iran Sanctions, January 6, 2012