Secrecy News

The difficulty that the military has in allocating the efficient use of the electromagnetic spectrum for military operations is aggravated by the fact that some of those uses — involving intelligence platforms and sensors — are secret even from military planners themselves, a new Pentagon doctrinal publication notes.

“Coordination with intelligence units and agencies can be challenging for many reasons, to include classification issues, disparate data formats, and separate technical control or reporting channels,” the publication states.

“In many cases, the JSME [joint spectrum management element] does not have adequate visibility or knowledge of intelligence sensors, platforms, or systems in order to accomplish accurate deconfliction.”

“In order to capture all aspects of intelligence spectrum use, the JSME must understand that intelligence platforms such as UAS/unmanned ground system will have spectrum requirements for both a payload (e.g., imagery or data) and control frequencies to operate the platform.”

“Intelligence is a heavy user of sensors that employ both active and passive techniques. Active sensors are usually accounted for, but the passive sensors will also require spectrum consideration so they perform properly.”

See Joint Electromagnetic Spectrum Management Operations, Joint Publication 6-01, Joint Chiefs of Staff, March 20, 2012 (at page V-12).

Though it does not mention anything about Secret Service agents hiring prostitutes in Colombia last week, a newly updated report from the Congressional Research Service provides a timely discussion of The U.S. Secret Service: An Examination and Analysis of Its Evolving Missions, April 16, 2012

Some other new or newly updated CRS reports obtained by Secrecy News include the following.

An Overview of Tax Provisions Expiring in 2012, April 17, 2012

Private Health Insurance Market Reforms in the Patient Protection and Affordable Care Act (ACA), April 16, 2012

Pension Benefit Guaranty Corporation (PBGC): A Fact Sheet, April 16, 2012

Nanotechnology: A Policy Primer, April 13, 2012

Jesselyn Radack’s memoir “Traitor: The Whistleblower and the American Taliban” presents the moving story of a young attorney’s unexpected encounter with official misconduct, and the excruciating ordeal that ensued when she decided to challenge it.

In 2001, Ms. Radack was a Justice Department attorney and specialist in legal ethics.  In response to an official inquiry, she advised that the newly captured John Walker Lindh, the so-called “American Taliban,” should not be interrogated without an attorney present — which he then was anyway.  When Department officials publicly denied having received any such legal advice, and even destroyed evidence to the contrary, she exposed the deception.

Ms. Radack was not looking for a fight, but only to do the right thing. For her trouble, she was forced out of her Justice Department position, put under criminal investigation, fired from her subsequent job, reported to the state bar, and put on the “no fly” list.

“Traitor” is the story of a young professional whose career is derailed because her ethical compass will not let her be silent in the face of offical dishonesty.  It is also the story of a political system that is seemingly incapable of tolerating honorable dissenting views within the government workforce.

While a handful of “whistleblowers” become figures of popular acclaim, or heroes of movies such as The Insider or Erin Brockovich, they are the exception rather the rule, Ms. Radack writes.

“The media glorifies those who risk everything to expose corruption and illegal activity and rightly so; these lionized individuals deserve every ounce of praise they receive.  But their happy outcomes are not typical– for every success story, there are a hundred stories of professional martyrdom.  Mine is one of them.”

Ms. Radack eventually found a measure of redemption as an attorney with the Government Accountability Project where she has turned her own experience to advantage in promoting whistleblower rights.  She was among the most stalwart and effective defenders of Thomas Drake, the former NSA official and whistleblower whose dubious prosecution under the Espionage Act ended with the dismissal of all felony charges against him.

The Bush administration (in which she worked) was hostile to whistleblowers, according to Ms. Radack, but the Obama administration is even worse.

“The Bush administration harassed whistleblowers unmercifully,” she writes.  “But it took the Obama administration to actually prosecute them.”

I don’t think it is true, however, that the prosecution of Thomas Drake “was a test case for the Justice Department to try a novel legal theory… that the Espionage Act could be used to prosecute leakers” (p. 159).

Far from being novel, the use of Espionage Act to prosecute unauthorized disclosures of classified information predates the Drake case by decades.  At least since the conviction of Samuel L. Morison in the 1980s for providing classified intelligence imagery to Jane’s Defence Weekly — and the Supreme Court’s refusal to review the case — this application of the Espionage Act has been seemingly well established.

And there is some ambiguity about who qualifies for the appellation “whistleblower.”  It is a loaded term both because it presumes the pure intention of the individual challenger, and because it takes for granted the corruption of his target.  These need to be demonstrated, not simply asserted.  It cannot be the case that a strong sense of personal conviction, untethered from legal or ethical constraints, is enough to entitle anyone to be called a whistleblower.  If that were so, then Jonathan Pollard and other disreputable figures could claim the title.

Ms. Radack states twice that the Obama Administration has prosecuted leakers “who more often than not were whistleblowers” (p. 69, 92).  This suggests that she thinks at least some of the six leak defendants to have been prosecuted by the Administration may not have been whistleblowers.  But if so, she does not specify which ones they were, or why she came to that conclusion.

I would say that “whistleblowers” are not a separate category of people in any essential sense.  Anyone can act with integrity under some circumstances.  The whistleblowers that we honor are people who act with integrity under extreme duress and sometimes at great cost.  Jesselyn Radack’s memoir is an eloquent account of one such case.

Newly updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

Millennium Challenge Corporation, April 12, 2012

The G-20 and International Economic Cooperation: Background and Implications for Congress, April 12, 2012

U.S. Trade Deficit and the Impact of Changing Oil Prices, April 13, 2012

Teenage Pregnancy Prevention: Statistics and Programs, April 12, 2012

U.S. Energy: Overview and Key Statistics, April 11, 2012

Former CIA officer John C. Kiriakou is to be arraigned today on charges of leaking classified information to the press in violation of the Espionage Act and the Intelligence Identities Protection Act — charges that he denies.  See The Case of An Accused Leaker: Politics or Justice? by Carrie Johnson, National Public Radio, April 13.

A newly updated report from the Congressional Research Service discusses Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act, April 2, 2012.

Another newly updated CRS report finds that federal agencies spent $750.4 million last year to pay for “advertising services.”  But though non-trivial, it seems that this amount was less than was spent for such purposes in any previous year since 2003.

The term advertising is not strictly defined in budget documents, and may include various forms of public relations, public service notices, and the like. “Government advertising can be controversial if it conflicts with citizens’ views about the proper role of government,” the CRS report stated. “Yet some government advertising is accepted as a normal part of government information activities.”

Federal advertising expenditures have actually decreased over the past two years and haven’t been lower since 2003. The highest level of advertising expenditures in the past decade occurred in 2004, the CRS report found.  See Advertising by the Federal Government: An Overview, April 6, 2012.

Some other updated CRS reports that have not been made publicly available by Congress include these:

Detention of U.S. Persons as Enemy Belligerents, April 11, 2012

Rare Earth Elements in National Defense: Background, Oversight Issues, and Options for Congress, April 11, 2012

The Lord’s Resistance Army: The U.S. Response, April 11, 2012

Kuwait: Security, Reform, and U.S. Policy, April 11, 2012

Pakistan: U.S. Foreign Assistance, April 10, 2012

Last week, the Department of Defense published the 2012 edition of the Manual for Courts-Martial (MCM).

The Manual contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and the Uniform Code of Military Justice.  The latest edition incorporates legislative amendments and other changes introduced since the previous edition was published in 2008.

The Manual details the elements of various crimes such as “Aiding the Enemy” (Article 104), which is among the charges pending against Bradley Manning, who is suspected of having provided classified and other restricted records to WikiLeaks without authorization.

“No unauthorized communication, correspondence, or intercourse with the enemy is permissible,” according to the Manual’s explanation of Article 104 (which has not been amended recently).

“The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly.”

“Giving intelligence to the enemy is a particular case of corresponding with the enemy made more serious by the fact that the communication contains intelligence that may be useful to the enemy for any of the many reasons that make information valuable to belligerents. This intelligence may be conveyed by direct or indirect means.”

See, more generally, Military Justice: Courts-Martial, An Overview from the Congressional Research Service, March 14, 2012.

The elimination of the congressional Office of Technology Assessment in 1995 was a self-inflicted wound that left Congress with diminished capacity to evaluate the challenging scientific and technological issues that continue to confront it.  But the need for such an enterprise to support the legislative process has not gone away, and to a limited extent it is now being addressed by the Congressional Research Service (as well as the Government Accountability Office).

Last month, CRS completed a substantial 139 page report entitled Energy Storage for Power Grids and Electric Transportation: A Technology Assessment. At first glance, it looks like an informative piece of work.

“This report attempts to summarize the current state of knowledge regarding energy storage technologies for both electric power grid and electric vehicle applications. It is intended to serve as a reference for policymakers interested in understanding the range of technologies and applications associated with energy storage, comparing them, when possible, in a structured way to highlight key characteristics relevant to widespread use.”

Two other recent CRS reports discuss the implications of hydraulic fracturing, or “fracking,” the controversial technology for injecting fluids into underground wells to stimulate oil and gas production.  See Hydraulic Fracturing and Safe Drinking Water Act Issues, April 10, 2012, and Hydraulic Fracturing: Chemical Disclosure Requirements, April 4, 2012.

Some other newly updated CRS reports that Congress has declined to make available to the public include the following.

Defining Homeland Security: Analysis and Congressional Considerations, April 3, 2012

Small Business Size Standards: A Historical Analysis of Contemporary Issues, April 10, 2012

Medicare Trigger, April 9, 2012

Western Sahara, April 5, 2012

Yemen: Background and U.S. Relations, April 10, 2012

On April 3, the National Reconnaissance Office successfully launched a classified intelligence satellite into orbit from Vandenberg Air Force Base.  Notwithstanding the usual operations security measures, amateur satellite trackers were able to locate the satellite in orbit within a few hours and even to videotape its passage overhead.

Last week’s launch is the first of four scheduled launches of NRO satellites in the next five months.  Last year, the NRO launched six satellites over a seven month period.

“We are in the middle of a launch campaign with an unprecedented operational tempo across national security space programs,” said Gil Klinger, deputy assistant secretary of defense for space policy, at a March 8 hearing of the House Armed Services Committee.

“Many of our space capabilities have become the ‘dial tone’ of national security,” Mr. Klinger said. “And like the dial tone of our telephones, we take their availability and presence for granted, noticing only when there is an unplanned service interruption.”

By intelligence community standards, the NRO has demonstrated exceptional financial management, said Betty Sapp, NRO principal deputy director.

“For the third year in a row, the NRO received a clean audit opinion on our Financial Statements, a truly unprecedented accomplishment within the IC,” she said at the March 8 hearing.

New reports from the Congressional Research Service that Congress has not made publicly available include the following.

Lean Finely Textured Beef: The “Pink Slime” Controversy, April 6, 2012

Government Procurement in Times of Fiscal Uncertainty, April 9, 2012

An Analysis of STEM Education Funding at the NSF: Trends and Policy Discussion, April 9, 2012

Federal Depository Library Program: Issues for Congress, March 29, 2012

Export-Import Bank: Background and Legislative Issues, April 3, 2012

The Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR): Developments in Trade and Investment, April 9, 2012

It is possible to imagine all kinds of changes in government secrecy policy that would make the secrecy system smaller, more efficient, more susceptible to error correction, and more attuned to shifting security requirements.

Such changes might include, for example, self-cancelling classification markings, numerical limits on classification activity, broadly distributed oversight and declassification authority, new mechanisms for challenging classification decisions, and so on.

But before any such change could be adopted in practice, it would almost certainly need to be tested and validated for use, particularly if it involved a real departure from current procedures.

A classification policy “test bed” in which a variety of new classification policies could be put into practice on a limited scale would therefore be desirable, and would signify a non-rhetorical commitment to policy change.

It is interesting to note that the need to systematically approach change has been recognized in other national security contexts, which might serve as a model for secrecy reform.

The U.S. Army actually has its own Logistics Innovation Agency whose mission is “to provide innovative solutions for improved operational and tactical logistics readiness.”

The Agency “uses well-defined processes of exploration, discovery, demonstration, and transition to integrate logistics solutions that help prepare the Army for uncertain and complex future operating environments,” according to an updated Army regulation published last week.

Similarly, the U.S. Navy has an Office of Innovation that “promotes, fosters, and develops innovative science, technology, processes and policies that support the Department of the Navy.”

These and similar entities might be persuaded or directed to undertake pilot projects on innovations in national security classification.  If successful, such efforts could advance a consensus view of sharply limited secrecy that is more responsive to the public interest in both security and disclosure.