from the FAS Project on Government Secrecy
Volume 2012, Issue No. 85
August 27, 2012
Secrecy News Blog: http://www.fas.org/blog/secrecy/
- GUIDANCE ON NUCLEAR TARGETING IS "TIGHTLY CONTROLLED"
- SCI NONDISCLOSURE AGREEMENT REQUIRES PREPUBLICATION REVIEW
- PRESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE, AND MORE FROM CRS
GUIDANCE ON NUCLEAR TARGETING IS "TIGHTLY CONTROLLED"
U.S. government guidance on the targeting of nuclear weapons is perhaps the most tightly held of all national security secrets, and "fewer than twenty" copies of the President's instructions on the subject are extant within the entire Department of Defense.
Following a November 2011 hearing of the House Armed Services Committee, Rep. Michael Turner (R-OH) asked "How many military and civilian personnel in the executive branch have full or partial access to nuclear employment and targeting guidance?"
In newly published responses to questions for the record, Under Secretary of Defense James N. Miller said the answer was "a very small group of personnel in the executive branch."
"Even within the Department of Defense (DOD), access to this sensitive material is tightly controlled," Dr. Miller added. "Within the Department of Defense, fewer than twenty copies of the President's guidance are distributed in the Office of the Secretary of Defense, the Joint Staff, and U.S. Strategic Command."
The nuclear weapons guidance issued by the Secretary of Defense and the Chairman of the Joint Chiefs to implement the President's instructions is somewhat more broadly disseminated.
"Fewer than 200 copies of the most recent amplifying guidance issued by the Secretary of Defense were produced, and distribution was limited primarily to Office of the Secretary of Defense, the Joint Staff, U.S. Strategic Command, and other Combatant Commanders. The Chairman's guidance is distributed more widely within DOD (fewer than 200 copies), as the document assigns responsibilities to several defense agencies and the intelligence community. Commander, U.S. Strategic Command must issue guidance to his planners and forces in the field, so distribution is somewhat wider because of that need."
What about congressional access? "How many personnel in the legislative branch have full or partial access to each level of guidance?", Rep. Turner asked.
Dr. Miller declined to answer that question directly.
"There is a long history of debate about providing the legislative branch access to this material," he said. "As a result, instances of providing access to a member of Congress and senior staff personnel have been quite limited and under restrictive terms."
In fact, the history of debate over congressional access to nuclear targeting information was never conclusively resolved, as far as is publicly known. In 2000, then-Sen. Robert Kerrey criticized the Department of Defense repeatedly for refusing to provide the information.
"As elected representatives of the people, and with a Constitutional role in determining national security policy, Congress should have an understanding of the principles underpinning our nuclear policy. Both the guidance provided by the President and the details of the SIOP [nuclear weapons targeting plan] are necessary for us to make informed national security decisions," Sen. Kerrey said on the Senate floor on June 30, 2000.
Sen. Kerrey wrote to then-Secretary of Defense William Cohen seeking an explanation of the Department's policy on congressional access to nuclear targeting information.
But no reply was ever received.
In the newly released questions for the record, which address a multiplicity of nuclear policy issues, Rep. Turner also asked "How many military personnel have full or partial access to STRATCOM's OPLAN 8010?", referring to the U.S. Strategic Command nuclear war plan.
"Full access to all portions of OPLAN 8010 is limited to our most senior leadership," replied Gen. C. Robert Kehler, STRATCOM Commander.
For background on OPLAN 8010, see "Obama and the Nuclear War Plan" by Hans M. Kristensen, Federation of American Scientists, February 2010:
SCI NONDISCLOSURE AGREEMENT REQUIRES PREPUBLICATION REVIEW
If the former Navy SEAL who co-authored a new book about killing of Osama bin Laden signed a non-disclosure agreement for access to "sensitive compartmented information" (i.e., classified intelligence information), then he was obliged to submit his manuscript to the government for prepublication review even if he believed that it contained no classified information.
A sample SCI non-disclosure agreement that is used by the Department of Defense is here:
If the book did contain classified information, then the author could conceivably be subject to criminal prosecution under the Espionage Act. But even if it did not contain classified information, its publication without prior review could be deemed a breach of contract, with the proceeds subject to seizure by the government.
The government's authority to enforce a non-disclosure agreement in this way was affirmed by a federal court most recently in the case of USA v. Ishmael Jones. In that case, Jones (the pseudonym of a former CIA officer) published his manuscript without completing the prepublication review process.
Last week, Adm. William H. McRaven of U.S. Special Operations Command condemned the disclosure of classified information by former special operators, as well as other forms of activism that tended to politicize the service.
"While as retired or former service members, they are well within their rights to advocate for certain causes or write books about their adventures, it is disappointing when these actions either try to represent the broader S.O.F. community, or expose sensitive information that could threaten the lives of their fellow warriors," McRaven wrote in an email to all special operation personnel.
"We will pursue every option available to hold members accountable, including criminal prosecution where appropriate," he wrote, as reported by Kimberly Dozier of the Associated Press.
"Today, U.S. Special Operations Forces are in 78 countries around the world supporting U.S. policy objectives," Adm. McRaven told Congress last March.
The SOCOM budget request for FY2013 is $10.4 billion. "The FY 2013 budget includes 21 construction projects in nine states, one overseas, and one at a classified location," Adm. McRaven said in the 2012 SOCOM posture statement.
PRESIDENTIAL CLAIMS OF EXECUTIVE PRIVILEGE, AND MORE FROM CRS
New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.
Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, August 21, 2012:
Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, updated August 17, 2012:
Iraq: Politics, Governance, and Human Rights, updated August 21, 2012:
An Overview of the "Patent Trolls" Debate, August 20, 2012:
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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