Secrecy News

Much of the doctrinal literature concerning Army special operations is restricted from public disclosure, often for good reasons and sometimes for reasons that are hard to understand.

But one new special operations manual has been approved for unrestricted public disclosure.

As the title indicates, “Airdrop of Supplies and Equipment: Rigging Loads for Special Operations” (FM 4.20-142, September 2007) deals with the proper packaging of military supplies for aerial delivery via parachute. A copy is available here (in a very large 28 MB PDF file).

Also on the subject of new military publications, the Congressional Research Service updated its report “Defense: FY2008 Authorization and Appropriations” on September 28, 2007.

The disclosure of a clandestine network of U.S. military officers that diverted classified documents from military agencies and illegally provided them to law enforcement agencies serves as a vivid reminder that improved information sharing within the government is a goal that has still not been achieved.

“Marine Gunnery Sgt. Gary Maziarz said patriotism motivated him to join a spy ring, smuggle secret files from Camp Pendleton and give them to law enforcement officers for anti-terrorism work in Southern California,” the San Diego Union-Tribune reported last Saturday.

Sgt. Maziarz and his men acted like Robin Hood in the forest of national security information, taking classified documents from the cleared and giving them to the uncleared.

“He knew his group was violating national security laws,” the Union-Tribune reported. “But he said bureaucratic walls erected by the military and civilian agencies were hampering intelligence sharing and coordination, making the nation more vulnerable to terrorists.”

This is of course a self-serving story, and it doesn’t explain the stolen weapons or steroids found along with the pilfered documents by military investigators.

But neither is there any evidence so far of espionage on behalf of a foreign power, or any indication of a financial motive in stealing the records.

Taken at face value, the rise of the interagency document smugglers points to a continuing defect in government information policy. It also suggests that the national security classification system may break before it bends. In other words, it may fail catastrophically before it can be substantially reformed.

See “Marine Took Files as Part of Spy Ring” by Rick Rogers, San Diego Union-Tribune, October 6.

The story was also picked up today by the Los Angeles Times.

The failure to achieve optimal information sharing is not in dispute.

“Institutional rules and legacy culture continue to hamper effective information sharing,” a report (pdf) from the Office of the Director of National Intelligence admitted yesterday.

“There are outdated policy, customs, and technical constraints on information access and dissemination that impede the production of finished products our customers require.”

See “500 Day Plan: Integration and Collaboration,” Office of Director of National Intelligence, October 2007.

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following.

“China-U.S. Relations: Current Issues and Implications for U.S. Policy,” updated October 1, 2007.

“North Korean Refugees in China and Human Rights Issues: International Response and U.S. Policy Options,” September 26, 2007.

“Saudi Arabia: Terrorist Financing Issues,” updated September 14, 2007.

“Terrorism in Southeast Asia,” September 11, 2007.

“Bangladesh: Background and U.S. Relations,” updated August 2, 2007.

“Cuba: Issues for the 110th Congress,” updated August 21, 2007.

“Presidential Directives: Background and Overview,” updated August 9, 2007.

For better or worse, contractors are now an indispensable part of the U.S. intelligence workforce, and greater attention is needed to manage them effectively, argues a recent study by a military intelligence analyst (pdf).

The author presents criteria for evaluating contractor support to various intelligence functions, and applies them in a series of case studies.

“This study assesses the value of current commercial activities used within DoD elements of the Intelligence Community, particularly dealing with operational functions such as analysis, collection management, document exploitation, interrogation, production, and linguistic support.”

In the best case, interactions with contractors can serve as a spur towards modernization of the intelligence bureaucracy itself, suggests the author, Glenn R. Voelz, a U.S. Army Major.

“Collaborative effort with nongovernmental entities offers a powerful mechanism to diversify and strengthen the IC’s collection and analytical capabilities, but to fully realize the benefit of these resources the management and oversight of commercial providers must become a core competency for all intelligence organizations.”

A copy of the study, published by the Joint Military Intelligence College, was obtained by Secrecy News.

See “Managing the Private Spies: The Use of Commercial Augmentation for Intelligence Operations” by Maj. Glenn J. Voelz, Joint Military Intelligence College, June 2006.

Also on the general subject of contractors, there is a January 2003 U.S. Army Field Manual entitled “Contractors on the Battlefield” (pdf), FM 3-100.21.

Among the more or less successful intelligence collaborations with industry that were examined by Maj. Voelz, there is nothing quite like the Bush Administration’s use of telephone companies to support the warrantless interception of domestic communications, a probable violation of the law for which the Administration is now urgently seeking retroactive immunity.

If foreign terrorists set out to undermine confidence in the American legal system as an arbiter of justice, they could hardly do more damage than the Bush Administration has done by its use of the “state secrets” privilege.

Khaled el-Masri, who alleged that he was abducted and tortured by the Central Intelligence Agency, will not be permitted to argue his case in a U.S. court because the Bush Administration asserted that “state secrets” would be compromised, and the U.S. Supreme Court this week concurred, rejecting el-Masri’s appeal.

This means that even if all of el-Masri’s allegations are true, there is no legal remedy available to him. The courthouse doors are closed in the United States. That is bad law and bad policy.

It also seems to be unnecessary, since courts have long demonstrated an ability to securely handle highly classified information, and have frequently done so in espionage trials and certain other criminal cases.

Recently, a group of law professors, scholars and activists urged Congress to confront the executive branch’s use of the state secrets privilege, and to establish new constraints on the privilege.

“Congress has a duty to examine how the state secrets privilege is being invoked by the executive branch and interpreted by federal courts. There is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process,” they wrote (pdf).

“Congress possesses the constitutional authority to act, and it should do so.”

The October 4 letter, coordinated by the nonprofit Constitution Project, may be found here.

At the end of Fiscal Year 2007, there were a total of 5,002 invention secrecy orders in effect under the Invention Secrecy Act of 1951, up from 4,942 the year before.

U.S. government agencies imposed secrecy orders on 53 patent applications filed by private inventors in FY 2007, prohibiting their disclosure or export, according to statistics obtained by Secrecy News this week from the U.S. Patent and Trademark Office.

The so-called “John Doe” secrecy orders imposed on private inventors are a constitutional anomaly since they appear to infringe on private speech. But their constitutionality has never been successfully challenged in court.

See the latest invention secrecy statistics here. Related background on invention secrecy is here.

The Information Security Oversight Office has published an expanded guide explaining how to properly mark classified documents. See “Marking Classified National Security Information” (pdf), October 2007.

A 1972 monograph prepared at the National Archives reviews the history of information control markings on military documents back to the 19th century and traces their development up to World War II. Such markings represent part of the pre-history of today’s national security classification system.

See “Origins of Defense-Information Markings in the Army and Former War Department” (pdf) by Dallas Irvine, National Archives Staff Information Paper, 1972.

A sizable collection of old military regulations relating to protection of confidential information is presented in a series of annexes to the paper (pdf).

Last week the House of Representatives passed a bill to extend federal legal jurisdiction to crimes committed abroad by U.S. contractors in war zones such as Iraq, so that such crimes could be prosecuted in U.S. courts.

But before the bill (H.R. 2740) was passed, it triggered alarms by those who were concerned that its provisions could undermine U.S. intelligence activities.

“The bill would have unintended and intolerable consequences for crucial and necessary national security activities and operations,” the White House said without elaboration in an October 3 statement (pdf) outlining its opposition to the bill.

Congressman J. Randy Forbes (R-VA) spelled out those intelligence agency concerns in more detail on the House floor.

For example, he said, “If a clandestine asset was implicated in a crime, investigating and arresting that asset under traditional criminal procedures could expose other assets and compromise critical intelligence activities.”

More fundamentally, he complained, the new bill “applies the entire criminal code to the new category of potential offenders and could implicate the authorized business of the intelligence community employees and contractors.”

Rep. Forbes therefore introduced a motion stating that “Nothing in this Act shall be construed to affect intelligence activities that are otherwise permissible prior to the enactment of this Act.”

The motion was approved, but not without some critical commentary.

“The [Forbes] amendment raises serious questions about the activities its proponents may be seeking to protect,” said Rep. David Price (D-NC), who authored the new bill.

“Given that my bill only targets activities that are unlawful, why do my colleagues feel the need to clarify that it does not affect activities that are permissible?”

“What activities are contractors carrying out that are permissible but not lawful?” Rep. Price wondered aloud.

“If there are private, for-profit contractors tasked with duties that require them to commit felony offenses, Congress needs to know about it. Such a revelation would point to a need for a serious debate about whether we are using contractors appropriately,” he said.

See the October 4 House debate on the new bill, the “Military Extraterritorial Jurisdiction Act Expansion and Enforcement Act of 2007,” which was passed by a large majority.

The awkward fact is that intelligence collection operations are routinely conducted in violation of established laws, including international legal norms to which the United States Government is formally committed.

“The CS [clandestine service] is the only part of the IC [intelligence community], indeed of the government, where hundreds of employees on a daily basis are directed to break extremely serious laws in counties around the world in the face of frequently sophisticated efforts by foreign governments to catch them,” according to a 1996 House Intelligence Committee staff report called IC21 (chapter 9, at page 205).

“A safe estimate is that several hundred times every day (easily 100,000 times a year) DO [Directorate of Operations] officers engage in highly illegal activities (according to foreign law) that not only risk political embarrassment to the US but also endanger the freedom if not lives of the participating foreign nationals and, more than occasionally, of the clandestine officer himself.”

A decade ago Congress established an advisory committee to examine the very issues of contractor liability in war zones abroad that have recently been in the headlines again.

The Overseas Jurisdiction Advisory Committee spent a year analyzing the state of the law, found “significant jurisdictional gaps” in the government’s ability to prosecute crimes committed abroad by contractors, and recommended legislative remedies.

The Committee’s extensive report (pdf) laid the foundation for the 2000 Military Extraterritorial Jurisdiction Act, which applied to defense contractors, and which would be extended by now-pending legislation to non-defense contractors as well.

Up to now, the Committee’s report has not been available online, rendering it practically inaccessible. A copy of the report obtained by Secrecy News is now available on the Federation of American Scientists web site.

See the Report of the Advisory Committee on Criminal Law Jurisdiction Over Civilians Accompanying the Armed Forces in Time of Armed Conflict (Overseas Jurisdiction Advisory Committee), April 1997.

A federal appeals court on Friday granted a temporary injunction blocking implementation of a policy that would require scientists at the Jet Propulsion Laboratory to undergo intrusive background investigations as a condition of continued employment.

The requirement stems from President Bush’s Homeland Security Presidential Directive 12, under which all federal employees and contractors are obliged to obtain secure forms of federal identification.

As interpreted by NASA, this provision means that JPL employees must not only provide verifiable proof of identity, which all are willing to do, but must also accept an open-ended background investigation into their personal conduct.

Under the NASA standard, according to critics, “any investigator” from “any federal agency” would be permitted to collect “any information” regarding the employee.

Dozens of JPL scientists said no.

A lower court rejected their request for an injunction against the policy on October 3. But the appeals court granted it on October 5, until further proceedings can be held. For background on the case see here.

“We cannot drive scientists into our laboratories,” said President Truman in a September 13, 1948 speech to the AAAS, “but, if we tolerate reckless or unfair attacks, we can certainly drive them out.”