Secrecy News Blog: http://www.fas.org/blog/secrecy/
CONGRESS WANTS BETTER LOCKS FOR SECRET DOCS
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 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 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 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 in use within industry "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."
SOME RECENT CONGRESSIONAL HEARING VOLUMES
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," 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 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.
OSC VIEWS HONG KONG'S "MAD DOG" WONG
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 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.
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
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"USEFUL BUT PROHIBITED": AIR FORCE OPENNESS LAGS
Some of the steps that are favored by the Obama Administration to open up government to public access and participation may be "useful" but they are nevertheless "prohibited" on U.S. Air Force web sites, according to a new Air Force policy instruction.
In a January 21, 2009 memorandum on transparency and open government, President Obama directed that "Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public.... Executive departments and agencies should solicit public feedback to assess and improve their level of collaboration and to identify new opportunities for cooperation."
The U.S. Air Force has a different vision, however.
A new Air Force policy on public communications observed that "web-based message boards, threaded chat rooms, and guest books... allow users to post opinions, messages, or information openly on a web site. They provide a useful means of creating two-way communication but are prohibited as part of public web site services" (sec. 10).
Instead of the "unprecedented level of openness" promised by the President, the Air Force prefers to follow precedent in other ways as well.
Only content that "is intended for a wide public audience" will be considered by the Air Force for publication online. All other materials "should be posted on the [password-protected] Air Force Portal web site." Moreover, "all content on a public web site must be cleared for public release." See "Public Web Communications," Air Force Instruction 35-107, October 21, 2009:
Unfortunately, the Air Force's mandatory pre-publication clearance process for "all content" is arduous, time-consuming and technologically primitive. Authors should allow ten days for Air Force review, or twenty days when approval is needed from the Department of Defense. Incredibly, materials for review can only be submitted in hardcopy (six paper copies for the Air Force and an additional four copies for DoD). Air Force Public Affairs says that it "does not accept material for review via e-mail or any other electronic means."
On the other hand, "theatrical reviews... and works of fiction that are not sourced from active-duty experience" are excused from the pre-publication review requirement. See "Security and Policy Review Process," Air Force Instruction 35-102, October 20, 2009:
These new Air Force directives, and another Air Force Instruction on Public Affairs Policies and Procedures that was modified last week, do not even mention the January 2009 Obama transparency memorandum, and certainly do not reflect its declared intent.
The impact of the President's January memorandum has been deferred because the implementing Open Government Directive that was originally due for release in May has still not been completed.
But the Directive "will come out this fall," said Beth Noveck, White House deputy chief technology officer for open government, at a meeting organized by the Center for Democracy and Technology yesterday. The forthcoming Directive, to be issued by the Office of Management and Budget, will provide "a framework for agencies to pursue their own transparency initiatives," she said.
OPEN SKIES AND COUNTERPROLIFERATION
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 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," volume 2: Nuclear Threats and Prospects, by Alexander DeVolpi, 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:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
The Secrecy News blog is at:
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OBAMA BOOSTS WHITE HOUSE INTEL ADVISORY BOARD
In a move that will strengthen internal executive branch oversight of intelligence, President Obama this week said that a White House intelligence oversight board will be required to alert the Attorney General whenever it learns of "intelligence activities that involve possible violations of Federal criminal laws." A similar requirement for the board to notify the Attorney General had been canceled by President Bush in February 2008. President Obama reversed that step in his executive order 13516 on the authorities of the President's Intelligence Advisory Board (PIAB) and the Intelligence Oversight Board (IOB).
The new Obama order also restores to the PIAB and the IOB some of the other teeth that the Bush Administration had removed. The order states that the Director of National Intelligence and others "shall provide such information and assistance as the PIAB and the IOB determine is needed to perform their functions." The Bush order had only spoken of "such information and assistance as the PIAB and the IOB may need to perform functions under this order." So the new order (like the prior Clinton order) helpfully specifies that the PIAB and the IOB are the ones who will "determine" what they need--not the DNI or anyone else.
The Obama order does not restore the Clinton-era requirement that all intelligence agencies heads report quarterly to the IOB. Instead, as in the Bush order, the DNI is to report to the Board at least twice a year.
The Obama order states that the PIAB membership should be comprised of individuals "who are not full-time employees of the Federal Government." Previously, they had to be "not employed by the Federal Government" at all. The basis for this change is unclear.
Strengthening internal oversight of intelligence activities is among the easiest of changes to Bush Administration intelligence policy that the Obama Administration could be expected to make. The action does not entail any increase in public disclosure or congressional reporting concerning intelligence activities, not does it infringe on executive authority in any way.
On October 28, President Obama announced the appointment of former Senators Chuck Hagel and David Boren to the PIAB, which had been vacant until then.
"We are off to a good start with this meeting by welcoming the press, which past advisory boards have rarely done," the President said. "That's a reflection of my administration's commitment to transparency and open government, even, when appropriate, on matters of national security and intelligence." But judging from a published transcript, no matters of substance were discussed and no questions from the press were taken at the meeting.
As a result of polygraph testing, more than a thousand applications for employment at the Federal Bureau of Investigation have been rejected or otherwise terminated in the last year alone, the FBI told Congress last month. Polygraph testing has been the single largest reason for discontinuing an application, well ahead of administrative or medical issues, use or sale of illegal drugs, or other suitability or security issues. In Fiscal Year 2009, 339 special agent applicants were turned away on polygraph-related grounds, and 825 professional support applications were similarly discontinued.
These data were presented in responses to questions for the record from a Senate Judiciary Committee hearing last March, and were transmitted to Congress on behalf of FBI Director Robert S. Mueller III on September 15, 2009.
Most of the congressional questions, on everything from Freedom of Information Act compliance to detainee interrogation, are focused and pointed. Some of the answers are informative and occasionally even startling.
Each day between March 2008 and March 2009, Director Mueller told the Committee, "there were an average of more than 1,600 nominations for inclusion on the [Terrorist] watchlist," as well as 4,800 proposed modifications of existing records, and 600 proposed removals. "Each nomination for addition [to the watchlist] does not necessarily represent a new individual," Mueller cautioned, "but may instead involve an alias or name variant for a previously watchlisted person."
Former FAS President Jeremy J. Stone has published a memoir of his efforts to promote constructive dialogue in several of the world's most intractable conflicts through his own organization, Catalytic Diplomacy. Remarkably, writes Morton Halperin in a Preface to the memoir, "The conflicts that Jeremy sought to mitigate -- US-Russian nuclear relations, China's relation with Taiwan, North Korea's relations with its neighbors, and U.S.-Iranian relations -- have all been affected for the better by his efforts." See:
The susceptibility of anti-satellite weapons to the control of international law is considered in a new paper called "ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons" by David A. Koplow, Michigan Journal of International Law, Vol. 30, No. 4, Summer 2009. Mr. Koplow is now Special Counsel for Arms Control at the Defense Department Office of the General Counsel.
Effective congressional oversight depends not only on the good intentions of the overseers, but also on their familiarity with the legislative, investigative and other tools they have at their disposal. But the skillful use of those tools has been largely a matter of tacit knowledge, handed down through the generations of congressional staff. To help preserve and propagate the techniques involved, the Project on Government Oversight has published a new handbook entitled "The Art of Congressional Oversight: A User's Guide to Doing It Right."
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
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CONFUSION REIGNS IN INTELLIGENCE SECRECY POLICY
The decision last week by the Director of National Intelligence to declassify the FY2009 budget for the National Intelligence Program is inconsistent with other ODNI classification actions and highlights the confusion over the proper scope of national security secrecy that prevails in the U.S. intelligence community today.
On October 30, DNI Dennis C. Blair announced that the total appropriation for the National Intelligence Program (NIP) in FY 2009 was $49.8 billion. (Under the terms of a 1997 law, the President could have withheld the FY 2009 budget figure if he filed a statement with Congress declaring that revelation of the number "would damage national security." But he did not do so.)
Yet at the same time, the Office of the DNI refuses to reveal the NIP budget figure from FY 2006 -- three years earlier -- on grounds that its disclosure would damage national security and jeopardize intelligence sources and methods.
Can these two conflicting evaluations of the same information from two different years be reconciled? It is hard to see how, especially since the budget number that was withheld is the older of the two, and is even farther removed from current operations. One of the DNI's classification actions appears to be in error.
The DNI's October 30 statement announcing the latest budget figure for 2009 also makes some other questionable assertions that suggest internal confusion and fuzzy thinking about secrecy and disclosure.
"I'm hopeful that this [budget] information will give the American people a better understanding of how their tax dollars are being used to help protect the country and keep Americans safe," DNI Blair said. But disclosure of the budget figure reveals nothing about "how tax dollars are being used" for intelligence -- which is one reason why such information could not be properly classified.
Worse than that, the DNI's disclosure is incomplete and misleading. The total intelligence budget is composed of two budget constructs, the National Intelligence Program (NIP) and the Military Intelligence Program (MIP). (Several of the large defense intelligence agencies -- NSA, NGA, and others -- are funded through both the NIP and the MIP.) But only the NIP number has been released, which means that not even the aggregate intelligence budget figure has been made public. (In a September 15 media conference call, the DNI said the combined budget was around $75 billion.) Based on the new NIP figure alone, one cannot even say how much money was spent on intelligence in 2009, whether the total has increased or decreased from the year before, or by how much -- much less "how tax dollars are being used to help protect the country."
The October 30 ODNI news release went on to insist that "Any and all subsidiary information concerning the National Intelligence (NIP) budget will not be disclosed as such disclosures could harm national security."
"Any and all subsidiary information"? This implies, for example, that if a breakdown of the amount of money spent by the intelligence community on declassification activities were published, it "could harm national security." But that hardly seems likely.
In a candid moment last year, ODNI officials admitted that they really don't know why they classify all the things that they do. "There is wide variance in application of classification levels," an internal January 2008 ODNI study obtained by Secrecy News found. "The definitions of 'national security' and what constitutes 'intelligence' -- and thus what must be classified -- are unclear."
Lacking clarity about first principles, the intelligence community is ripe for the sort of "Fundamental Classification Guidance Review" that has been proposed in the Obama Administration's pending draft executive order on national security information (sec. 1.9) "to identify classified information that no longer requires protection and can be declassified." If such a review is actually carried out by impartial subject matter experts who are relatively free of bureaucratic blinders and willing to take a fresh look at the requirements of national security, it might help to introduce a degree of rationality into the current chaos of classification policy.
David C. Gompert, the new Principal Deputy DNI, told the Senate Intelligence Committee in September that he recognized that new measures were needed to address overclassification in the intelligence community.
"If confirmed," he said (in a reply to the Committee's question 28B), "I would expect that the DNI and I would work closely with the Information Security Oversight Office to ensure that standards are created for the establishment of classification management programs within the IC. Then, new IC guidance could be issued by the DNI regarding classification guides, marking tools, training, and classification audits. I believe that these efforts would go far to assist in resolving the serious issue of overclassification."
An aggregate intelligence budget figure, including both national and military intelligence spending, has not been published since 1998, when it was released in response to a Freedom of Information Act request. At that time, the total was $26.7 billion. At congressional direction, a budget number for the NIP was previously released by the DNI in 2007 ($43.5 billion) and 2008 ($47.5 billion). Unclassified portions of recent MIP budget documents were released to Secrecy News last month.
OSC ON PAKISTANI UNMANNED AERIAL VEHICLES
The production of unmanned aerial vehicles by the Pakistani defense firm Integrated Dynamics is described in a new publication from the DNI Open Source Center (OSC).
Based on public information, the Pakistani UAV product line is intended for scientific and surveillance purposes and does not include weaponized systems.
A copy of the OSC publication, which largely derives from the Integrated Dynamics website, was obtained by Secrecy News. See "Media Aid on Website of Pakistani UAV Manufacturing Company," Open Source Center, October 20, 2009:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
The Secrecy News blog is at:
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NEW STATE SECRETS POLICY YIELDS FAMILIAR RESULT
The government's proposed use of the state secrets privilege in a pending lawsuit was reviewed under the new state secrets policy that was established in September to limit use of the privilege, Attorney General Eric Holder announced on October 30. But upon review the government decided that it was necessary and appropriate to assert the privilege anyway. Furthermore, the government did not merely seek to withhold particular items of evidence from disclosure in the case, Shubert v. USA, but sought to terminate the proceeding altogether.
"As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so," Attorney General Holder said. "We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power," he said.
With one exception, the Attorney General cited the various steps that had been prescribed under the new policy to ensure the proper use of the privilege, including formation of a review committee, facilitation of court review, and personal approval by the attorney general.
But one aspect of the new policy that he did not address was the question of referral of the alleged misconduct to an agency inspector general for investigation. The policy specifies that such a referral is supposed to occur whenever "invocation of the privilege would preclude adjudication of particular claims," as it is poised to do in this case, and when the "case raises credible allegations of government wrongdoing." The plaintiffs in the case allege that their communications were subject to unlawful "dragnet" collection by the National Security Agency. Somewhat artfully, the government denies that any such collection occurred "under the Terrorist Surveillance Program," implicitly allowing for the possibility that it may have occurred under some other framework.
Another pending state secrets case brought by former DEA agent Richard Horn appears to have reached a settlement, with the government agreeing to pay the plaintiff $3 million, reported Josh Gerstein in Politico.
The Collaboration on Government Secrecy at American University's Washington College of Law will hold a conference on "The State of the State Secrets Privilege" on November 18.
JASON CAUTIONS ON PREDICTING TERRORIST EVENTS
Attempts to predict the occurrence or the likelihood of extreme acts of terrorist violence on the scale of 9/11 should be discouraged because the available data are too sparse to permit the reliable modeling of such "rare events," according to a new report to the Pentagon from the JASON defense advisory panel.
In a nutshell, "it is simply not possible to validate (evaluate) predictive models of rare events that have not occurred, and unvalidated models cannot be relied upon."
On the other hand, the JASONs said, it may be possible and useful to assume that rare events are correlated with more frequent, observable events which can be reliably modeled. If one assumes that "rare events events occur on a continuum with more frequent events," then the latter can be used to help predict the former.
In this way, the JASONs calculated that the probability of another 9/11-scale event in the world could be about 7% in the next ten years. But for reasons they went on to enumerate, the underlying assumption of continuity between rare and frequent events is not demonstrably correct.
"Much of the work on [anticipating] rare terrorist events seems to take for granted that 'the truth is out there' and we can discover it in a sufficiently timely fashion with the right mixture of motivational assessment, social network analysis, capability measures, etc." This may not be true, they indicated.
The JASONs offered suggestions for improving the modeling process, and they stressed the need for "good, large datasets of [terrorist] events and incident data" that currently do not exist or are not widely available. It is "surprisingly hard to obtain primary datasets" even on "straightforward" questions of terrorist event frequency and magnitude.
They cautioned that the complexity of the problem and the presumed urgency of the threat have "led some to advocate the suspension of normal standards of scientific hypothesis testing, in order to press [predictive] models quickly into operational service."
But "while appreciating the urgency, JASON believes such advice to be misguided.... Experience in the development of many other scientific fields shows the importance of adhering to rigorous scientific standards, so that small successes are tested, communicated, critically examined, reproduced, and built upon."
"Although patient husbandry of a long-term research program may fall short of addressing the immediate operational needs, JASON believes it is the best way forward for success in the long term." A copy of the new JASON report was obtained by Secrecy News. See "Rare Events," October 2009:
MORE NEW PUBLICATIONS RECEIVED
A new book delves into "the secret history of federal drug law enforcement" and the role of the Drug Enforcement Administration. See "The Strength of the Pack: The Personalities, Politics and Espionage Intrigues that Shaped the DEA" by Douglas Valentine, TrineDay, 2009.
Former Congressional Research Service scholar Morton Rosenberg authored a detailed account of the principles and practices of congressional oversight entitled "When Congress Comes Calling." It was published by the Constitution Project in July and is available in full-text online:
MILITARY CENSORSHIP OF PHOTOGRAPHS IN WORLD WAR I
During the course of World War I, tens of thousands of photographs were withheld from publication by the U.S. military. These included images that might have revealed troop movements or military capabilities, pictures that were liable to be used in enemy propaganda, or those that could adversely affect military or public morale.
The development of military controls on publication of photographs during WWI was described in a 1926 U.S. Army report that is illustrated with dozens of images that had been withheld, with a description of the reasons their publication was not permitted.
See "The Military Censorship of Pictures: Photographs that came under the ban during the World War - and why" by Lt. Col. Kendall Banning, U.S. Army Signal Reserve Corps, 1926 (large pdf) (courtesy of the U.S. Army Combined Arms Center):
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
The Secrecy News blog is at:
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DNI CITES PROGRESS AGAINST AIR AND SEA-BASED THREATS
The U.S. intelligence community is making steady progress towards "an advanced state of intelligence integration and information sharing" regarding potential threats to the U.S. and its allies from the sea and the air, according to a new report from the Director of National Intelligence.
"Threats that terrorists and other illicit actors pose to the nation's ports, waterways and airways remain persistent and grave, leaving no room for error or delay in this effort," the report said.
In response to such threats, a new ODNI National Maritime Intelligence Center has been established, new information sharing protocols have been put in place, and collaborative "communities of interest" have been nurtured. But "challenges remain" in both air and maritime intelligence "to overcome cultural and institutional resistance" to cooperation, particularly given the "sharply diminished" sense of urgency since 9/11.
One enduring difficulty is that "a lack of robust foreign and domestic HUMINT assets hampers the capability to detect and identify place and time of hostile or disruptive actions...." However, the report says, "examining smuggling networks, front companies, and 'gray' actors and transactions has resulted in successful interdictions of people and cargo who clearly pose national security threats."
The unclassified report did not mention any specific interdictions. But last month, U.S. forces intercepted a German cargo ship carrying arms from Iran to Syria, according to an October 12 story in Der Spiegel. Last week, reportedly based on a tip from U.S. intelligence, Israel seized a ship carrying weapons said to be supplied by Iran and intended for Hezbollah fighters.
The DNI report described the formidable intelligence challenges posed by the vast maritime and air domains.
"Worldwide maritime activity includes more than 30,000 ocean-going ships of 10,000 gross tons or greater," operating under more than 150 different national flags, making tens of thousands of calls at 125 major U.S. ports each year. Meanwhile, "there are over 43,000 fixed airfields worldwide with over 300,000 active aircraft, making the air domain a dense, complex operating environment with attendant reduced reaction time to potential airborne threats."
"The economy's inherent lack of resiliency to a major [trade or transportation] disruption event presents a substantial opportunity for those who seek to attack our institutions asymmetrically," the report said.
The ultimate intelligence goal, therefore, is nothing less than "to create and maintain a persistent awareness of all aspects of passenger and intermodal cargo conveyance. This single integrated team approach would permit 24/7 coverage of the entire transportation spectrum...."
The new report is heavy on management jargon, with lots of integration, alignment and leveraging said to be taking place. ("ODNI remains committed to expediting horizontal intelligence integration supported by the implementation of data sharing standards that are breaking down barriers to information sharing, thereby facilitating rapid decision support.")
Some of the "successes" touted by the report seem paltry or oversold, such as a "precedent setting conference" on piracy in the Horn of Africa last April which "drew more than 280 attendees." And the new ODNI National Maritime Intelligence Center is confusingly housed within the existing National Maritime Intelligence Center that also hosts the Office of Naval Intelligence. But overall the 62-page report testifies to a level of bureaucratic churning within the intelligence community that rarely leaves a trace on the public record.
A copy of the new report was obtained by Secrecy News. See "The Inaugural Report of the Global Maritime and Air Communities of Interest Intelligence Enterprises," Director of National Intelligence, November 2009:
GOVT PETITIONS SUPREME CT ON BACKGROUND INVESTIGATIONS
Last year, scientists at NASA's Jet Propulsion Laboratory thought they had successfully rebuffed a controversial government attempt to impose new background investigations on JPL employees under NASA's interpretation of President Bush's Homeland Security Presidential Directive 12. A federal appeals court concurred with the scientists that the new investigations into employee personal histories were intrusive, "open ended," and not "narrowly tailored" to meet legitimate government interests. The court granted a preliminary injunction exempting the scientists from the investigations into their personal backgrounds.
But last week, Obama Administration Solicitor General Elena Kagan petitioned the U.S. Supreme Court to overturn the appeals court ruling in favor of the scientists. That ruling, she argued, was legally in error and "casts a constitutional cloud on the background-check process."
Each side has warned of ominous consequences if its position is not upheld.
"These investigations have a very negative impact on our ability to recruit the very best scientific and engineering talent to address our nation's complex technical needs," several of the JPL scientists wrote in a 2007 letter to Congress. "Many highly talented individuals, like much of the populace, attach great value to their personal liberties. We are Americans, after all."
But by finding the new background investigations improper, Solicitor General Kagan contended, the appeals court's ruling "calls into question even the most basic inquiries... that public employers undertake for prospective employees [and] appears to render suspect the most commonplace reference checks conducted by employers."
"We are, of course, quite disappointed," said Robert M. Nelson, a JPL scientist and lead plaintiff in the case. "The Solicitor General has opened a Pandora's Box, permitting the Supreme Court to possibly erase all protections that citizens might have against government snooping into the most intimate details of their private lives," he said last week.
The JPL scientists are contractors, not NASA employees, who work on unclassified projects. Government contractors who are similarly situated at other agencies (including DoE and NSF) are not required by those agencies to undergo comparable background investigations under HSPD-12. The current dispute has no bearing on the use of background investigations in the clearance process for access to classified information.
Additional information and the latest case files can be found on the plaintiffs' website here:
NATIONAL SECURITY LETTERS, FOSSIL FUEL, MORE FROM CRS
Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following.
"National Security Letters: Proposed Amendments in the 111th Congress," October 28, 2009:
"U.S. Fossil Fuel Resources: Terminology, Reporting, and Summary," October 28, 2009:
"Unconventional Gas Shales: Development, Technology, and Policy Issues," October 30, 2009:
"Electoral College Reform: 111th Congress Proposals and Other Current Developments," November 4, 2009:
"Congressional Printing: Background and Issues for Congress," November 5, 2009:
"Resolutions of Inquiry: An Analysis of Their Use in the House, 1947-2009," October 29, 2009:
Scripps College in Claremont, CA has been holding a semester-long series of lectures, films and other programs on the theme of "Secrets in a Democracy":
I will be speaking there on November 11.
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
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Secrecy News Blog: http://www.fas.org/blog/secrecy/
A CRITICAL LOOK AT NAVY V. EGAN
A 1988 U.S. Supreme Court decision known as Department of the Navy v. Egan has often been interpreted to support broad presidential authority over national security generally and over access to classified information in particular. Along with Curtiss-Wright, United States v. Reynolds, and a few other cases, Egan is regularly cited in support of strong, even unchecked executive authority and judicial deference to executive claims. It has become a cornerstone of national security law as practiced today.
But the case has often been misunderstood and misrepresented, according to a new study by Louis Fisher of the Law Library of Congress, who reviewed the development and interpretation of Egan in more than 180 judicial decisions.
The Egan decision was prompted by a narrow statutory dispute: Did the Merit Systems Protection Board (an executive branch body) have the authority to review the revocation of a security clearance by the Navy (another executive branch body)? The court concluded that Congress had not intended to permit such review.
But in reaching that straightforward conclusion, "various passages in Egan strayed from this central issue and created confusion and misconceptions" about the scope of executive authority and the role of the courts, wrote Dr. Fisher. Among such passages was a discussion of the President's constitutional powers culminating in the statement that "Unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs."
Over time, Egan came to signify the notion that courts should grant the "utmost deference" -- or even absolute deference -- to the executive on issues of national security. Citing Egan, one court in 1993 held that "the presumption of reviewability is entirely inapplicable in matters concerning national security." This is an extreme view that would exclude the courts altogether from national security affairs. "Egan does not support that interpretation," wrote Fisher. But there it is.
In a 2002 report on leaks of classified information, Attorney General John Ashcroft cited Egan in support of the proposition that "The President has the power under the Constitution to protect national security secrets from unauthorized disclosure. This extends to defining what information constitutes a national security secret and to determining who may have access to that secret." These statements are true except for the implication that such authority is exclusively the province of the executive. The Attorney General conspicuously neglected to note the qualification in Egan which stated "Unless Congress has specifically provided otherwise...."
Recently, observed Fisher, some courts have presented a more nuanced reading of Egan. In proceedings such as Al-Haramain and Horn v. Huddle, courts have rebuffed executive arguments for complete deference in cases where Congress has legislated its intent into statute.
Fundamentally, Fisher concludes, "Nothing in Egan recognizes a plenary or exclusive power on the part of the President over classified information." See "Judicial Interpretations of Egan" by Louis Fisher, Law Library of Congress, November 13, 2009:
Dr. Fisher will be the luncheon speaker at a day-long conference November 18 on "The State of the State Secrets Privilege" at American University Washington College of Law.
A new law review article argues that government secrets can be usefully distinguished in terms of "depth"-- i.e. "how many people know of their existence, what sorts of people know, how much they know, and how soon they know.... Attending to the depth of state secrets can make a variety of conceptual and practical contributions to the debate on their usage. The deep/shallow distinction provides a vocabulary and an analytic framework with which to describe, assess, and compare secrets, without having to judge what they conceal." See "Deep Secrecy" by David Pozen, Stanford Law Review, forthcoming:
A new book revisits the case of Frank Olson, the Army biochemist who fell to his death in 1953 after having been unwittingly dosed with LSD in a CIA experiment. "A Terrible Mistake: The Murder of Frank Olson and the CIA's Secret Cold War Experiments" by H.P. Albarelli Jr. was published this month by TrineDay, which says it "specializes in releasing books that are shunned by mainstream publishers due to their controversial nature."
Child welfare hearings in the District of Columbia Family Court, which are currently conducted behind closed doors, should be opened to the public, argued law professor Matthew I. Fraidin in recent testimony before the D.C. Council. Open hearings would promote improved protection for the children, increased professionalism by the adult participants, and greater accountability all around, he said. See "Opening Child Welfare Proceedings in the Family Court of the District of Columbia," November 4, 2009:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
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To UNSUBSCRIBE, go to:
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Secrecy News Blog: http://www.fas.org/blog/secrecy/
LEGAL ISSUES SURROUNDING MILITARY COMMISSIONS
The role of military commissions in adjudicating the cases of suspected terrorist detainees at Guantanamo and elsewhere was critically examined in two House Judiciary Subcommittee hearings last July, the records of which have just been published.
"My concern remains," said Rep. Jerrold Nadler (D-NY), who chaired the hearings, "that we may be creating a system in which we try you in Federal court if we have strong evidence, we try you by military commission if we have weak evidence, and we detain you indefinitely if we have no evidence."
"That is not a justice system," Rep. Nadler said.
See "Legal Issues Surrounding the Military Commissions System," House Judiciary Committee, July 8, 2009:
and "Proposals for Reform of the Military Commissions System," House Judiciary Committee, July 30, 2009:
2010 ARMY WEAPON SYSTEMS HANDBOOK
The U.S. Army has published the latest edition of its Army Weapon Systems handbook, cataloging dozens of Army weapons with descriptive information, status updates, contractor relationships, and images.
"The systems listed in this book are not isolated, individual products," the introduction says. "Rather, they are part of an integrated investment approach to make the Army of the future able to deal successfully with the challenges it will face."
"We have received extraordinary funding support through wartime Overseas Contingency Operations funds, but they have only enabled us to sustain the current fight. We look forward to continued Congressional support to achieve our broad modernization goals."
See "2010 Army Weapon Systems Handbook":
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
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To UNSUBSCRIBE, go to:
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Secrecy News is archived at:
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Secrecy News Blog: http://www.fas.org/blog/secrecy/
CHINA'S NAVY MAKES "IMPRESSIVE" STRIDES, SAYS ONI
An ongoing modernization effort has provided China with an increasingly sophisticated and proficient naval force, according to a new assessment by the U.S. Office of Naval Intelligence (ONI).
Notably, China has "developed the world's only anti-ship ballistic missile," which ONI said was "specifically designed to defeat U.S. carrier strike groups" in the event of military conflict over Taiwan.
"China's modernization efforts have principally focused on preparing for a Taiwan conflict, with a large portion directed at developing capabilities to deter, delay, and if necessary degrade potential U.S. military intervention," the ONI report said.
Although China has recently deployed naval vessels far from its shores to protect Chinese shipping from piracy, "it is important to note that none of these operations indicate a desire on the part of the PRC to develop a constant global presence," ONI said. "Beijing's ambition appears to remain focused on the East Asian region, with an ability to protect the PRC's maritime interests in distant seas when required."
See "The People's Liberation Army Navy: A Modern Navy with Chinese Characteristics," Office of Naval Intelligence, released November 2009 (17 MB PDF file):
The new ONI analysis was first reported by Tony Capaccio in "China’s New Missile May Create a 'No-Go Zone' for U.S. Fleet," Bloomberg News, November 17, 2009:
A marked increase in Chinese submarine patrols last year was reported by Hans Kristensen of the Federation of American Scientists in the FAS Strategic Security Blog:
The Congressional Research Service provided additional information in "China Naval Modernization: Implications for U.S. Navy Capabilities -- Background and Issues for Congress," updated October 21, 2009:
THE RISE OF CHINA'S AUTO INDUSTRY
"In recent years, China has become the world's fastest growing automotive producer," according to a new report from the Congressional Research Service.
"[China's] annual vehicle output has increased from less than 2 million vehicles in the late 1990s to 9.5 million in 2008. In terms of production volume in 2008, China has surpassed Korea, France, Germany, and the United States, trailing only Japan."
"China’s automobile industry has continued to expand despite the global economic downturn. From January to October 2009, more than 10 million vehicles were sold in China. If such growth continues, China is on its way to becoming world’s largest auto market," the CRS said.
See "The Rise of China's Auto Industry and Its Impact on the U.S. Motor Vehicle Industry," November 16, 2009:
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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
See also "Reducing Government Secrecy: Finding What Works" by Steven Aftergood, Yale Law and Policy Review, vol. 27, no. 2, Spring 2009:
http://www.fas.org/sgp/eprint/aftergood.pdf
The Secrecy News blog is at:
http://www.fas.org/blog/secrecy/
To SUBSCRIBE to Secrecy News, go to:
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To UNSUBSCRIBE, go to:
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Secrecy News is archived at:
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