Secrecy News

Whatever its archaic publication policy may say, the U.S. Air Force still manages to generate and publicly release documents of significant policy interest.  A new manual on the Open Skies Treaty explores the origins, development, and implementation of the Open Skies regime, which permits the overflight and inspection of member nations’ territory and facilities.  See Air Force Manual 16-604 (pdf) on “Implementation of, and Compliance with, the Treaty on Open Skies,” October 20, 2009.

A summary account of U.S. government programs to combat weapons of mass destruction is provided in the latest annual report from the interagency Counterproliferation Program Review Committee.  See “Report on Activities and Programs for Countering Proliferation and NBC Terrorism,” Volume I, executive summary, July 2009 (published September 2009).

From time to time, publishers send us review copies of new books.  We are glad to receive them, even if we cannot always read the books promptly or produce substantial reviews.  New receipts include these:

“Nuclear Insights: The Cold War Legacy” by Alexander DeVolpi, volume 2: Nuclear Threats and Prospects, 2009.

“Preventing Catastrophe: The Use and Misuse of Intelligence in Efforts to Halt the Proliferation of Weapons of Mass Destruction” by Thomas Graham Jr. and Keith A. Hansen, Stanford University Press, 2009.

“Vanished,” a novel by Joseph Finder, St. Martin’s Press, 2009.

A House Subcommittee is reviving a decade-old debate over the need to expeditiously replace the older security locks on safes for storing classified documents with new, more sophisticated electromechanical locks.

“The secure storage of classified information is a matter of paramount importance to the national security of the United States,” wrote Rep. John F. Tierney (D-MA) earlier this month.  Yet, he complained, government contractors that have possession of classified materials have been slow to upgrade their locks and safes to meet the new government standards.

Rep. Tierney’s House National Security Subcommittee is therefore “conducting an investigation” focusing on  industry’s ability and intention to carry out the mandatory upgrade to improved locks and containers prior to a 2012 deadline.  Almost 20,000 “substandard security containers” are supposed to be replaced in the next three years, according to the Defense Security Service.

“Based on Industry’s slow rate of transition over the past decade, and the substantial number of substandard security containers still in use, it appears that Industry may not have adequate plans in place to complete the transition by October 1, 2012.”  Rep. Tierney described his concerns in an October 7 letter (pdf) to William J. Bosanko, director of the Information Security Oversight Office.  The letter was released at a recent meeting of the NISP Policy Advisory Committee.

Although Rep. Tierney did not mention it, the origins of the requirement to upgrade security locks for storage of classified documents are tainted by parochial financial concerns, and the move is questionable on security policy grounds.

Beginning in the 1990s, the lock conversion requirement was zealously advocated by Senator Jim Bunning (R-KY) whose constituents, not coincidentally, included the manufacturer of the proposed replacement lock.  The manufacturer also enlisted the lobbying support of Douglas Feith, who went on to become the Bush Administration’s controversial Under Secretary of Defense for Policy.  See “Sen. Bunning Pushes Electronic Locks to the Dismay of Industry, DoD” by Hampton Stephens, Defense Information and Electronics Report, August 10, 2001.

But there has never been any known compromise of classified information in government or industry that was attributable to a faulty security container or lock.  For that reason, the cost-benefit ratio of a systematic retrofit does not seem very compelling, particularly when compared to other potential uses for the limited supply of security dollars.

On the other hand, the fact that self-serving financial interests drove the political debate does not mean the security issue is entirely groundless, an independent security consultant told Secrecy News.  Existing mechanical locks “can be penetrated surreptitiously within 20 minutes,” he said, and the older barlock containers that are still in use “can be penetrated surreptitiously within seconds.”

The records of several noteworthy congressional hearings that were held in the past two years have been published in the last few weeks, including these:

“A Report Card on Homeland Security Information Sharing,” House Homeland Security Committee, September 24, 2008.

“Turning Spy Satellites on the Homeland: The Privacy and Civil Liberties Implications of the National Applications Office,” House Homeland Security Committee, September 6, 2007.

“Oversight of the Federal Bureau of Investigation” (pdf), Senate Judiciary Committee, March 27, 2007.

“FISA Amendments: How to Protect Americans’ Security and Privacy and Preserve the Rule of Law and Government Accountability,” October 31, 2007.

Sen. Patrick Leahy and Sen. Charles Grassley of the Senate Judiciary Committee wrote to Attorney General Holder (pdf) on October 20, asking the Department of Justice to comply with outstanding Committee requests for information that have gone unanswered, in some cases for several years.

The DNI Open Source Center has produced a colorful profile of Raymond Wong Yuk-man, a former talk show host who was elected to Hong Kong’s Legislative Council in 2008.

Known as “Mad Dog” for “his virulent criticism of the Communist Party of China,” Wong is a member of the “radical pro-democracy League of Social Democrats (LSD).”  But his flamboyant behavior has raised concerns that he could “divide the Hong Kong opposition and set back the process of democratization,” the OSC report (pdf) said.

Earlier this year, Wong was officially rebuked for using the English phrase “poor guys” to refer to Hong Kong’s citizens. It seems that “poor guys” was a play on “the vulgar Cantonese expression ‘pok kai’” which means, the OSC explained, something like “drop dead.”

Last year, Wong was ejected from the Council chambers after throwing bananas to protest the minimal stipend (known as “fruit money”) given to senior citizens.

To be a radical is “fine,” said one of Wong’s critics. But to be “a loutish, obscene, banana-throwing radical is not.”

See “Profile of ‘Radical’ Hong Kong Legislator Raymond Wong Yuk-man,” Open Source Center, October 2, 2009.

The total number of invention secrecy orders that the U.S. government imposed on patent applications rose again this year, reaching 5,081 by the end of last month, the highest figure since 1996.

Under the Invention Secrecy Act of 1951, U.S. government agencies may restrict the disclosure of a patent application whenever its publication is deemed “detrimental to the national security.”  In Fiscal Year 2009, 103 new secrecy orders were issued, while 45 existing orders were rescinded.  The overall number of orders in effect increased by about 1% over the year before, according to statistics from the U.S. Patent and Trademark Office that were released to Secrecy News under the Freedom of Information Act.

The most vexing secrecy orders, known as “John Doe” secrecy orders, are those that are imposed on private inventors who are not government contractors so that the government has no property interest in the invention.  In Fiscal Year 2009, there were 21 new John Doe secrecy orders, according to the latest statistics.  An argument could be made that secrecy orders in such cases are infringements on an inventor’s First Amendment rights, but such an argument has never been tested in court.

In general, however, challenges or complaints concerning the operation of the patent secrecy system seem to be rare.  Most secrecy orders originate at defense agencies, with the U.S. Navy in the lead this year with 39.  (The National Security Agency issued 12 secrecy orders in FY 2009.)  In such cases, the most likely customers for the inventions are the military agencies themselves, not commercial enterprises, and so the secrecy orders may have no adverse impact on the inventors.    For other resources on invention secrecy, see here.

“Over time, the Supreme Court has become more diverse in some ways and more homogeneous in others,” a recent Congressional Research Service report (pdf) observed.

“When first constituted, and throughout most of its history, no women or minorities served on the Court… The religious affiliations of the Court’s members also have changed over time. For almost the first 50 years of the Court, all Justices were affiliated with protestant Christian churches. [Today], six of the nine current Justices identify as Roman Catholic…. Over time, Justices’ legal educations have become more homogeneous…. In the last 20 years, especially, three Ivy League law schools–Harvard, Yale, and Columbia–have been disproportionately represented on the Court.”

“To date, every Supreme Court Justice has been a lawyer. There is, however, no constitutional requirement regarding the educational background of a Justice or the necessity of a law degree.”  See “Supreme Court Justices: Demographic Characteristics, Professional Experience, and Legal Education, 1789-2009,” September 9, 2009.

Other noteworthy new CRS reports that have not been made readily available to the public include the following (all pdf).

“Presidential Terms and Tenure: Perspectives and Proposals for Change,” October 19, 2009.

“The Debate Over Selected Presidential Assistants and Advisors: Appointment, Accountability, and Congressional Oversight,” October 9, 2009.

“Poverty in the United States: 2008,” October 6, 2009.

“Public Safety Communications and Spectrum Resources: Policy Issues for Congress,” October 14, 2009.

“Managing Electronic Waste: Issues with Exporting E-Waste,” October 7, 2009.

“Iraq: Regional Perspectives and U.S. Policy,” October 6, 2009.

Stewart D. Nozette, who was arrested and charged this week under the Espionage Act, is an unusually gifted and accomplished technologist.  The allegation that he provided classified information to an FBI agent posing as an Israeli intelligence officer in exchange for cash is distressing on several levels.

Among other things, Nozette had exceptionally broad access to a range of classified programs in defense, space and nuclear technology.  According to an FBI affidavit (pdf), Nozette stated that he “held a DOE Q clearance from 1990-2000, which involved insight into all aspects of nuclear weapons programs.  Held TS/SI/TK/B/G clearance 1998-2006,… Held at least 20+ SAP [special access program clearances]… from 1998-2004.”

In fact, however, Nozette’s participation in Department of Defense special access programs dates back even earlier, to 1990 or so.  At that time he was read into an unacknowledged special access program called Timber Wind (pdf), which was an effort by the Strategic Defense Initiative Organization to develop a rocket engine powered by a nuclear reactor.  Dr. Nozette’s name appears on a Timber Wind master access list we obtained which identified the several hundred persons who were authorized to be briefed on that nuclear rocket program.

The discovery of the hyper-classified Timber Wind program was an inspiration for the FAS Project on Government Secrecy, since we considered it a compelling instance of classification abuse.  On a number of occasions I asked Dr. Nozette about the program, but he was always quite scrupulous about rebuffing my inquiries.

Timber Wind was canceled shortly after it became public, and other nuclear rocket initiatives likewise faded away in the 1990s, as the effort to develop nuclear rocketry for military or civilian applications surged and then collapsed, leaving behind only a bunch of good stories.

An idiosyncratic new memoir (pdf) by Tony Zuppero, one of the would-be nuclear rocketeers, tells those stories as he recalls them, with sometimes alarming candor, humor, and disappointment.  Dr. Zuppero had his own concept of a nuclear rocket that would open a path for human expansion into the solar system.  But, he laments, “after all the effort, all the visions, I got old instead of making it happen.”

Dr. Nozette, myself and the Federation of American Scientists make a few cameo appearances in Dr. Zuppero’s new memoir, entitled “To Inhabit the Solar System”.

House and Senate conferees last week approved legislation that would preempt the Freedom of Information Act and permit the Secretary of Defense to withhold from release photographs and other visual media if he determines that their public disclosure “would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.”

The new provision, contained in the 2010 Department of Homeland Security Appropriations Act, was adopted to thwart a successful FOIA lawsuit brought by the American Civil Liberties Union seeking release of certain photographs documenting the abuse of detainees held in U.S. military custody.  A federal appeals court ruled (pdf) last year that the unclassified photographs are not exempt from the FOIA and must be released.

The Obama Administration, prodded by Senators Lieberman and Graham and with the support of some senior military officials, petitioned (pdf) the Supreme Court last August to overturn the ruling.  “The disclosure of those photographs could reasonably be expected to endanger the lives or physical safety of United States military and civilian personnel in Iraq and Afghanistan,” the Administration argued.  But Congress acted first, and Solicitor General Elena Kagan asked the Court (pdf) on October 8 to suspend its consideration of the petition.

From an open government point of view, it is dismaying that Congress would intervene to alter the outcome of an ongoing Freedom of Information Act proceeding.  The move demonstrates a lack of confidence in the Act, and in the ability of the courts to correctly interpret its provisions.  The legislation elevates a speculative danger to forces who are already in battle above demands for public accountability concerning controversial government policies, while offering no alternative avenue to meet such demands.  “The suppression of these photos will ultimately be far more damaging to our national security than their disclosure would be,” suggested Jameel Jaffer of the ACLU.

On the other hand, legislative intervention to block release of the photos might not be the worst possible outcome.  A worse scenario would be if the Supreme Court upheld the sweeping Obama Administration argument that other courts have rejected, and ruled that the FOIA exempts these unclassified photos simply because they may pose an unspecified danger to unspecified persons.  Such a Supreme Court ruling would have left a gaping hole in the Freedom of Information Act even larger than what the Obama Administration and Congress have now created.

Meanwhile, a new military policy prohibits reporters embedded with forces in eastern Afghanistan from photographing U.S. troops killed in action, the Reporters Committee for Freedom of the Press revealed last week.  See “Afghanistan Command Confirms Policy Against Images of U.S. Dead” by John M. Donnelly, CQ Politics, October 14, 2009.

“Kazakhstan, which is second only to Australia in uranium reserves and exceptionally appealing to nuclear nations that require uranium, has entered into agreements or joint ventures with many countries and corporations,” a new analysis (pdf) from the DNI Open Source Center observes.

Kazakhstan has embarked on cooperative civilian nuclear projects with countries including the U.S., Russia, China, Brazil, Canada, France, India, and others, possibly including Iran.

“Some serious issues lurk behind the veneer of the government’s political and commercial success,” the OSC analysis says. These include “an unclear line of power succession,… which could facilitate nuclear deals with international partners with mixed proliferation records.”

“The country is corrupt and has corrupt practices,” the OSC declares. “Kazakhstan’s mineral riches have supplied many a thief with wealth.”  See “Kazakhstan — Opening Up for Nuclear Collaboration,” Open Source Center, October 6, 2009.

Kazakhstan relinquished the nuclear weapons that it inherited from the former Soviet Union in  1995.  It has also accepted IAEA safeguards and the Additional Protocol.

Update: A Kazakhstan government official disputed the conclusions of the OSC analysis. He said that “contrary to recent reports, his country is not looking to do nuclear deals with countries that have a mixed record on proliferation,” the Christian Science Monitor reported October 19.