Archive for the ‘Secrecy News’ Category

Secrecy News

January 17, 2013

SANDIA SCIENTISTS MODEL DYNAMICS OF SOCIAL PROTEST

Researchers at Sandia National Laboratories have been studying the ways that information, ideas and behaviors propagate through social networks in order to gain advance warning of cyber attacks or other threatening behavior.

The initial problem is how to explain the disparate consequences of seemingly similar triggering events.  Thus, in 2005, the Danish newspaper Jyllands-Posten published cartoons featuring the Muslim Prophet Muhammad, prompting widespread protests.  In 2006, by contrast, the Pope gave a lecture in which he made comments about Islam that were considered derogatory by some, but the ensuing controversy quickly faded away.

“While each event appeared at the outset to have the potential to trigger significant protests, the ‘Danish cartoons’ incident ultimately led to substantial Muslim mobilization, including massive protests and considerable violence, while outrage triggered by the pope lecture quickly subsided with essentially no violence,” wrote Sandia authors Richard Colbaugh and Kristin Glass.  “It would obviously be very useful to have the capability to distinguish these two types of reaction as early in the event lifecycle as possible.”

What accounts for the difference in these outcomes? The intrinsic qualities of the events are not sufficient to explain why one had disruptive consequences and the other did not. Rather, the authors say, one must factor in the mechanisms of influence by which individual responses are shaped and spread.

By way of analogy, it has been shown that “it is likely to be impossible to predict movie revenues, even very roughly, based on the intrinsic information available concerning the movie” such as cast or genre, but that “it *is* possible to identify early indicators of movie success, such as temporal patterns in pre-release ‘buzz’, and to use these indicators to accurately predict ultimate box office revenues.”

The Sandia authors developed a methodology that reflects the “topological properties” of social and information networks — including the density and hierarchy of connections among network members — and modeled the dynamics of “social diffusion events” in which individuals exercise influence on one another.

They report that their model lends itself, among other things, to “distinguishing successful mobilization and protest events, that is, mobilizations that become large and self-sustaining, from unsuccessful ones early in their lifecycle.”

They tested the model to predict the spread of textual memes, to distinguish between events that generated significant protest (a May 2005 Quran desecration) and those that did not (the knighting of Salman Rushdie in 2007), and to provide early warning of cyber attacks.

The authors’ research was sponsored by the Department of Defense and the Department of Homeland Security, among others.  See Early warning analysis for social diffusion events by Richard Colbaugh and Kristin Glass, originally published in Security Informatics, Vol. 1, 2012, SAND 2010-5334C.

STRATEGY LACKING FOR DISPOSAL OF NUCLEAR WEAPONS COMPONENTS

There is a “large inventory” of classified nuclear weapons components “scattered across” the nation’s nuclear weapons complex and awaiting disposal, according to an internal Department of Energy contractor report last year.

But “there is no complex-wide cost-effective classified weapon disposition strategy.” And as a result, “Only a small portion of the inventory has been dispositioned and it has not always been in a cost-effective manner.”

See Acceptance of Classified Excess Components for Disposal at Area 5, presented at the Spring 2012 Waste Generator Workshop, April 24, 2012.

Secrecy News

October 24, 2012

KIRIAKOU PLEADS GUILTY IN LEAK CASE

This morning former CIA officer John Kiriakou pleaded guilty to one count of disclosure of information identifying a covert agent, a violation of the Intelligence Identities Protection Act.

“When KIRIAKOU disclosed the identity of Officer A to Journalist A, KIRIAKOU acted willfully in that defendant knew the disclosure was illegal,” according to a Statement of Facts approved and signed by Mr. Kiriakou today.

Under the terms of a plea agreement, the parties agreed that a prison term of 30 months would be “the appropriate sentence in this case.”  Other charges against him, including several counts under the Espionage Act, would be dismissed.

By foregoing a trial, Mr. Kiriakou loses an opportunity to try and persuade a jury that his motives were benign, and that the harm to national security resulting from his disclosure was negligible and insignificant.  But he gains an early resolution of the case, which could otherwise drag on for months and years, as well as a sentence that would likely be much shorter than if he were to be found guilty at trial.

“NEGATIVE RECIPROCITY” EMERGES IN THE SECURITY CLEARANCE SYSTEM

In the world of security clearances for access to classified information, the term “reciprocity” is used to indicate that one executive branch agency should ordinarily recognize and accept a security clearance that has been granted by another executive branch agency.

This is not just a nice, cost-efficient thing to do, it is actually a requirement of law.  Under the 2004 intelligence reform law, “all security clearance background investigations and determinations… shall be accepted by all agencies.”

This requirement for mutual recognition and acceptance applies equally to the higher order clearances of the intelligence community, where reciprocity is intended to promote employee “mobility” throughout the intelligence system, according to the 2009 Intelligence Community Directive 709.

So possessing a clearance from one agency should simplify the process of access approval at another agency.  But the opposite is not supposed to be true.  If an agency refuses for some reason to recognize the clearance granted by another agency, that refusal is not supposed to incur loss of clearance in the original agency.

Officially, such “negative reciprocity” is not an authorized, legitimate security clearance practice.  And yet there are signs that it is being adopted within the Department of Defense Office of Hearings and Appeals (DOHA), which rules on contested security clearance cases.

A new paper by attorney Sheldon I. Cohen describes a series of DOHA rulings in which a perverse form of negative reciprocity has been used to justify the denial or revocation of a security clearance, to the obvious detriment of due process.

“While the burden of proof has always been placed on the employee by the DOHA Appeal Board to show why he or she should be granted a security clearance, until now there was a modicum of a right to confrontation, and a right to challenge the evidence presented by the government,” Mr. Cohen wrote.

But in a ruling he describes, “anonymous redacted reports and other agency’s decision are enough to deny or revoke a DoD clearance regardless of contrary evidence.”

In a series of recent decisions, the DOHA Appeal Board “has accepted unsigned, unsworn, summary statements from unidentified persons in government agencies [that are] in direct conflict with live testimony at a hearing to deprive or revoke security clearances of government contractor employees.”

To avoid or limit the fallout of negative reciprocity, Mr. Cohen advises DoD employees and contractors to immediately appeal any adverse clearance decision, “at least to get [their] side of the issues on the record.”  Left unchallenged, it appears that adverse decisions by other agencies will be presumed reliable by DOHA and that any later attempt to rebut them “will most probably be rejected.”

See “Has the Defense Office of Hearings and Appeals Become a Star Chamber Court?” by Sheldon I. Cohen, October 19, 2012.

The Department of Defense last week published a three-volume “DoD Sensitive Compartmented Information (SCI) Administrative Security Manual,” DoD Manual 5105.21, October 19, 2012.

CONGRESSIONAL OVERSIGHT, AND MORE FROM CRS

Newly updated reports from the Congressional Research Service which Congress has not made publicly available include the following.

Congressional Oversight, October 17, 2012

Contemporary Developments in Presidential Elections, October 18, 2012

U.S. International Trade: Trends and Forecasts, October 19, 2012

President of the United States: Compensation, October 17, 2012

Peru in Brief: Political and Economic Conditions and Relations with the United States, October 18, 2012

Libya: Transition and U.S. Policy, October 18, 2012

China Naval Modernization: Implications for U.S. Navy Capabilities — Background and Issues for Congress, October 17, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, October 18, 2012

Secrecy News

October 9, 2012

PARTIES TANGLE OVER DISCOVERY IN KIRIAKOU LEAK CASE

The trial of former CIA officer John Kiriakou, who is accused of making unauthorized disclosures of classified information, has yet to begin.  But prosecutors and defense attorneys are now locked in a dispute over what classified information must be provided to the defense and can be cleared for disclosure at trial.

The resolution of the current pre-trial arguments may have a decisive effect not only on the outcome of Mr. Kiriakou’s proceeding but on the future use of the Espionage Act to penalize leaks of classified information.  That’s because the pending disagreements involving the nature of the charge will determine the standard by which the defendant will be judged.

“The government has no obligation to prove, and does not intend to prove, that the defendant [Kiriakou] intended to harm the United States,” prosecutors said in a September 26 motion that was unsealed last week.

“The government must prove only that the defendant had a ‘reason to believe’ that the information ‘could be used to the injury of the United States or to the advantage of any foreign nation’…. The defendant’s intent to injure or serve the United States is not at issue.”

Prosecutors rejected the contrary view of the defense that the government must demonstrate an intent by the defendant to harm the United States.  In a separate pleading last week, they said that view reflects a “misplaced” reliance on a 2006 holding in the AIPAC case (US v. Rosen) in which the court imposed a more stringent “intent” requirement on the prosecution, particularly since the defendants there did not hold security clearances and were dealing with information transmitted orally rather than with classified documents.

Rosen is distinguishable from this case… because Kiriakou transmitted the information electronically, not orally, and Kiriakou had a recognized obligation not to divulge classified, national defense information to those not entitled to receive it,” prosecutors said October 2.  (The latest defense argument on the subject is still under seal.)

But whether an email message is more like “documentary” information or like transcribed “oral” information seems to be an open question for the Kiriakou court to decide, along with other fateful questions about the use of the Espionage Act in leak cases.

U.S. ARMY DOCTRINE ON RELIGIOUS SUPPORT TO SOLDIERS

Military chaplains in the U.S. Army must have at least a Secret clearance. “This allow them access to the unit operations center and ensures that the chaplain is involved in the unit’s operational planning process.”

A newly updated Army doctrinal publication on Religious Support, which describes the functions of chaplains, explains that “Religion plays an increasingly critical role… across the range of military operations.”

“Chaplains and chaplain assistants continue to sustain programs that nurture ethical decision making and facilitate religious formation and spiritual development as an inseparable part of unit readiness.”

“Throughout our history, chaplains and chaplain assistants have served alongside combat Soldiers, enduring the same hardships, and bearing the same burdens.  They are members of the profession of arms.”

“Chaplains have served in the U.S. Army since the first days of the American Revolution and many have died in combat. These chaplains represented more than 120 separate denominations and faith groups from across America.”

“Six chaplains have been awarded the Medal of Honor for heroism above and beyond the call of duty,” the new Army Field Manual 1-05 noted.

However, “chaplains are noncombatants and do not bear arms.  Chaplains do not have command authority.”

Essentially, chaplains are expected to fulfill “three basic core competencies: nurture the living, care for the wounded, and honor the dead.”

U.S. FOREIGN ASSISTANCE TO PAKISTAN, AND MORE FROM CRS

Last month, Secretary of State Hillary Clinton informed Congress that U.S. national security interests required a waiver of statutory limitations on security aid to Pakistan.  “The Secretary’s accompanying justification for the waiver was delivered in classified form,” a newly updated report from the Congressional Research Service noted, adding that the waiver “appeared extremely difficult to justify” in view of Pakistan’s uneven cooperation with U.S. and NATO forces.  See Pakistan: U.S. Foreign Assistance, updated October 4, 2012

Some other Congressional Research Service products that have not been made readily available to the public include the following.

Jordan: Background and U.S. Relations, updated October 3, 2012

Federal Grants-in-Aid Administration: A Primer, October 3, 2012

Temporary Assistance for Needy Families (TANF): Welfare-to-Work Revisited, October 2, 2012

Sequestration: A Review of Estimates of Potential Job Losses, October 2, 2012

Secrecy News

September 12, 2012

COURT LIFTS GAG ORDER ON FORMER SECRECY CZAR

A federal judge this week granted permission to J. William Leonard, the former director of the Information Security Oversight Office, to discuss three documents that were at issue in the trial of former National Security Agency official Thomas Drake.

Mr. Leonard, an expert witness for the Drake defense, had sought permission to publicly challenge the legitimacy of the classification of one of the documents cited in the indictment against Mr. Drake, which was ultimately dismissed.

The government had opposed the motion to lift the non-disclosure obligations in the protective order that bound Mr. Leonard.  Government attorneys argued that Mr. Leonard had no standing to make such a request, which was filed by Mr. Drake’s public defenders James Wyda and Deborah L. Boardman.  The government also said the request should be denied in order “to prevent a flood of similar claims by non-parties in other completed cases.”  Instead, prosecutors suggested, Mr. Leonard could file a Freedom of Information Act request for the records in question.

But Judge Richard D. Bennett said that “the government’s arguments in this case are inapposite.” Even if the documents were made available to Mr. Leonard under FOIA, “he would not have been permitted to discuss them as he would remain bound by this Court’s Protective Order.”

Judge Bennett therefore formally lifted the Protective Order and granted Mr. Leonard permission to publicly discuss his concerns.

The documents themselves, and the complaint that Mr. Leonard submitted to the Information Security Oversight Office, were released by the National Security Agency under FOIA in July.  (“Defense, Critique of NSA Classification Action Released,” Secrecy News, July 30.)

The complaint itself is still pending, and is awaiting a formal response from the Department of Justice, said the current ISOO director, John P. Fitzpatrick.

The challenge presented by Mr. Leonard extends well beyond the Drake case or the secrecy practices of the National Security Agency.  Essentially, the question posed by the former ISOO director’s complaint is whether there is any threshold beyond which classification of information is so completely unjustified as to trigger third-party intervention to correct the problem.  As of today, such corrective mechanisms are weak or nonexistent.

KIM LEAK PROSECUTION HITS A BUMP IN THE ROAD

Prosecutors in the pending leak case of former State Department contractor Stephen Kim said they had discovered that the classified information Mr. Kim is accused of disclosing to a reporter without authorization had been circulated within the government more broadly than they had realized.

That discovery requires further investigation and disclosure to the defense, prosecutors said in a recent status report to the court.

“In short, the undersigned prosecutors have learned that the intelligence report identified in the Indictment had been used for purposes of drafting a separate intelligence product, which product was never finalized prior to the unauthorized disclosure at issue,” the status report said. “Some of the drafting occurred within the time period deemed relevant by the Parties.”

“The undersigned prosecutors are investigating this drafting process to determine its scope and what discoverable material may arise from it. The undersigned prosecutors have advised that their review of this additional information could take two additional months to complete before any materials related thereto are produced to the defense. While counsel for the defendant have not been informed of the content of this new information, counsel reasonably expect that it could have a material impact on their understanding of the government’s case, and likely will prompt additional discovery requests.”

LIMITED DATA MAKE SECRECY HARDER TO MEASURE, MANAGE

A new annual report on government secrecy discusses the quantitative and qualitative obscurity of government secrecy policy which makes secrecy hard to evaluate and to control.

The report was published by OpenTheGovernment.org, a coalition of some 80 organizations concerned with government transparency.

“Measuring what it is we actually know about the openness of the American government is not a straightforward endeavor,” the report says. “Information available to the public provides inconsistent and partial indicators about whether our government is becoming more, or less, open. In some areas, the information needed to know what the Executive Branch is doing and to hold it accountable to the public is not available at all.”

Even where quantitative data are available, as in the case of the number of classification decisions published annually by the Information Security Oversight Office, their qualitative significance is unclear, the report said.

“Having information about the quantity of secrets kept by the federal government tells us nothing about their quality.”

The OpenTheGovernment.org report assembled the quantitative indicators of government secrecy and disclosure that could be obtained, and also discussed several categories that should be available but are not.

“Good information is essential for the public to know what interests are influencing government policies, and more,” said Patrice McDermott, executive director of OpenTheGovernment.org. “Partial and mis- information, however, erodes accountability and prevents the public from having an informed debate about critical national issues.”

DRONES IN THE NATIONAL AIRSPACE SYSTEM, AND MORE FROM CRS

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

Pilotless Drones: Background and Considerations for Congress Regarding Unmanned Aircraft Operations in the National Airspace System, September 10, 2012

Global Access to Clean Drinking Water and Sanitation: U.S. and International Programs, September 10, 2012

Automobile and Truck Fuel Economy (CAFE) and Greenhouse Gas Standards, September 11, 2012

Overview of the Federal Procurement Process and Resources, September 11, 2012

Presidential Review of Independent Regulatory Commission Rulemaking: Legal Issues, September 10, 2012

Terrorism Risk Insurance: Issue Analysis and Overview of Current Program, September 10, 2012

Arizona v. United States: A Limited Role for States in Immigration Enforcement, September 10, 2012

Authority of State and Local Police to Enforce Federal Immigration Law, updated September 10, 2012

Intelligence, Surveillance, and Reconnaissance (ISR) Acquisition: Issues for Congress, updated September 10, 2012

Secrecy News

July 13, 2012

FORMER ISOO DIRECTOR AGAIN ASKS COURT TO RELEASE NSA DOCUMENTS

Last May, J. William Leonard, the former director of the Information Security Oversight Office, asked a federal court for permission to disclose and discuss declassified National Security Agency documents that had been cited in the prosecution of former NSA official Thomas Drake.  The documents represented a particularly “egregious” and “willful” case of overclassification, Mr. Leonard said, that needed to be publicly addressed.

Last month, government attorneys said there was no basis for action by the Court, and they suggested that Mr. Leonard could submit a Freedom of Information Act request to NSA for the documents instead.

Yesterday, Mr. Drake’s attorneys fired back in support of Mr. Leonard, who served as an expert for the Drake defense. They said Mr. Leonard is properly seeking relief from the Court because it was the Court that issued the Protective Order that limits his ability to discuss the issue.

“The Protective Order remains in effect today. It was not voided or mooted when judgment was entered last year. It has not expired,” wrote public defenders James Wyda and Deborah L. Boardman, Mr. Drake’s attorneys. “Although the United States may not take the terms of its own Protective Order seriously, Mr. Leonard does.”

The government’s suggestion that Mr. Drake file a FOIA request is unsatisfactory in two ways, Mr. Wyda and Ms. Boardman wrote.  First, NSA has failed to release these documents in response to previous FOIA requests, including one filed by me last year.

“Given NSA’s track record and its failure to respond to prior requests […], Mr. Leonard had no reason to believe his FOIA request for the same document would have been successful.”

But even if NSA did release the documents under FOIA, that would not solve Mr. Leonard’s problem, the defense attorneys explained.

“Even if Mr. Leonard had received the documents pursuant to a FOIA request, he would still be bound by the terms of the Protective Order that prohibit him from disclosing and discussing the documents.  It would do Mr. Leonard no good to merely receive the documents pursuant to a FOIA request if he cannot discuss the documents because he is bound by a Court Order that prohibits such discussion.”

The good news, they said, is that NSA has already prepared lightly redacted versions of the documents that are suitable for public release.  “These redacted versions are acceptable to Mr. Leonard,” Mr. Wyda and Ms. Boardman wrote.

Now it will be up to the Court to rule.

The deeper question raised by Mr. Leonard’s action — how to respond to “egregiously” mistaken classification actions — remains open.

POLYGRAPHS AND LEAKS: A LOOK BACK AT NSDD 84

“I’ve had it up to my keister with these leaks,” President Reagan complained in 1983 after a series of unauthorized disclosures.  “Keister is slang for buttocks,” the Associated Press helpfully explained at that time.

One of President Reagan’s responses to the flood of leaks was to direct the use of polygraph examinations in leak investigations. (The Director of National Intelligence reflexively responded in a similar way last month.)

National Security Decision Directive 84 of March 11, 1983 directed that “All departments and agencies with employees having access to classified information are directed to revise existing regulations and policies, as necessary, so that employees may be required to submit to polygraph examinations, when appropriate, in the course of investigations of unauthorized disclosures of classified information.”

Amazingly, this policy was denounced by then-Secretary of State George Shultz, who threatened to resign rather than submit to a polygraph examination.  He was excused from the test.

“Management through fear and intimidation is not the way to promote honesty and protect security,” Secretary Shultz said in a January 9, 1989 valedictory speech, explaining his opposition to the polygraph.

But management through fear and intimidation seems to be a recurring theme in security policy.  And polygraph testing is part of that, judging from a remarkable story published this week by McClatchy Newspapers.

“One of the nation’s most secretive intelligence agencies is pressuring its polygraphers to obtain intimate details of the private lives of thousands of job applicants and employees, pushing the ethical and legal boundaries of a program that’s designed instead to catch spies and terrorists,” wrote McClatchy reporter Marisa Taylor.

“The National Reconnaissance Office is so intent on extracting confessions of personal or illicit behavior that officials have admonished polygraphers who refused to go after them and rewarded those who did, sometimes with cash bonuses, a McClatchy investigation found.”  See “National Reconnaissance Office accused of illegally collecting personal data,” July 10.  (More here.)

“The US is, so far as I know, the only nation which places such extensive reliance on the polygraph,” wrote convicted spy Aldrich Ames in a November 2000 letter from prison. “It has gotten us into a lot of trouble.”

Secrecy News

July 11, 2012

A NEW JUDGE FOR THE FOREIGN INTELLIGENCE SURVEILLANCE COURT

Judge Raymond J. Dearie of the Eastern District of New York was appointed to the Foreign Intelligence Surveillance Court on July 2 by the Chief Justice of the United States.

The 11-member FIS Court rules on applications for domestic intelligence surveillance and physical search under the Foreign Intelligence Surveillance Court.  Judge Dearie replaces Judge Malcolm Howard whose seven-year term expired on May 18, 2012.

Judge Dearie’s appointment last week was confirmed today by Sheldon L. Snook, a spokesman for the Court.  The current membership of the FIS Court may be found here.

Judge Dearie was nominated to the federal bench by President Reagan in February 1986.

The Foreign Intelligence Surveillance Act has played a role in at least one case presided over by Judge Dearie, namely that of Najibullah Zazi.  In 2009, prosecutors in that case gave notice of their intent to use evidence obtained through FISA surveillance. In the event, Zazi pled guilty in 2010 to multiple charges of conspiracy and support for a terrorist organization.

A CONVENTION TO AMEND THE CONSTITUTION, AND MORE FROM CRS

Article V of the U.S. Constitution prescribes two ways by which the Constitution can be amended:  Either Congress may propose amendments for ratification by the states, or else a majority of state legislatures may ask Congress to call a convention for considering amendments.

A new report by the Congressional Research Service examines the possibility of a convention to amend the Constitution.  That option has never been used in practice but, CRS says, it could become newly appealing under present circumstances.

“Various contemporary developments could contribute to a renewal of congressional interest in the Article V Convention alternative,” the new CRS report said.  “The emergence of Internet and social media-driven public policy and issue campaigns has combined with renewed interest in specific constitutional amendments, and the Article V Convention procedure in general, as a means of bypassing perceived policy deadlock at the federal level.”

However, “The Constitution provides only a brief description of the Article V Convention process, leaving many details that would need to be considered if a convention were to become a serious prospect.”

A copy of the new CRS report was obtained by Secrecy News.  See The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, July 9, 2012.

Other new and updated CRS reports that have not been approved by Congress for broad public access include the following.

Health Care: Constitutional Rights and Legislative Powers, July 9, 2012

U.S. Postal Service: Background and Analysis of H.R. 2309 and S.1789 in the 112th Congress, July 9, 2012

Conventional Prompt Global Strike and Long-Range Ballistic Missiles: Background and Issues, July 6, 2012

Criminal Prohibitions on the Publication of Classified Defense Information, June 26, 2012

Secrecy News

June 13, 2012

NOT ALL LEAKS OF CLASSIFIED INFORMATION VIOLATE THE LAW

“The unauthorized release of classified information is a crime–it is a crime–because it threatens our national security and puts the lives of those who are sworn to defend our Nation in jeopardy,” said Sen. John Cornyn (R-TX) said on the Senate floor yesterday. “Everyone agrees [this] is criminal conduct.”

A resolution introduced by Sen. John McCain and twenty Republican colleagues calling for appointment of a special counsel to investigate recent leaks stated flatly that “the unauthorized disclosure of classified information is a felony under Federal law.”

But these statements are imprecise and misleading.  While some unauthorized disclosures of classified information are indeed contrary to law, it is not the case that all such disclosures violate the law.  In fact, there is no law that categorically prohibits the release of classified information.

“It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved,” wrote Attorney General John Ashcroft in an October 2002 report to Congress.

Significantly, AG Ashcroft added 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.”

Likewise, according to the Congressional Research Service, “there is no one statute that criminalizes the unauthorized disclosure of any classified information…. It is possible that some of the government information… does not fall under the express protection of any statute, despite its classified status.”

Some types of classified information are specifically protected by law, including that pertaining to communications intelligence, identities of covert agents, and nuclear weapons design information.  But the Espionage Act statutes that have been used to prosecute most leak cases (18 USC 793, 794) do not mention “classified information” at all.  Rather, they apply to “national defense” information, an imprecise term that is not coextensive with “classified” information.

Even when “national defense” information that is clearly covered by the Act is disclosed to an unauthorized person, it does not necessarily follow that a crime has been committed.

Courts have interpreted the convoluted language of the Espionage Act to mean that only those with the requisite criminal intent will have violated the law.

In order to convict someone of unauthorized disclosure of national defense information (not involving disclosure of documents), Judge T.S. Ellis, III, the presiding judge in the AIPAC case, ruled in 2006 that it would be necessary for prosecutors “to demonstrate the likelihood of [the] defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”

If White House officials disclosed classified information to reporters without authorization, it is doubtful that they intended to harm the United States or to aid a foreign government by doing so.

For these reasons, it is not true that “everyone agrees [this] is criminal conduct.”

THE LATEST CROP OF CRS REPORTS

New and updated reports from the Congressional Research Service include the following.

Mexican Migration to the United States: Policy and Trends, June 7, 2012

Mexico’s Drug Trafficking Organizations: Source and Scope of the Rising Violence, June 8, 2012

International Monetary Fund: Background and Issues for Congress, June 12, 2012

The Multilateral Debt Relief Initiative, June 11, 2012

The American Opportunity Tax Credit: Overview, Analysis, and Policy Options, June 11, 2012

Sexual Orientation and Gender Identity Discrimination in Employment: A Legal Analysis of the Employment Non-Discrimination Act (ENDA), June 8, 2012

Qatar: Background and U.S. Relations, June 6, 2012

Iran’s Nuclear Program: Tehran’s Compliance with International Obligations, June 8, 2012

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress, June 12, 2012

Secrecy News

June 11, 2012

SOME UNAUTHORIZED DISCLOSURES OF CLASSIFIED INFO ARE ROUTINE

The brewing controversy over leaks of classified information presumes that disclosures of classified information to unauthorized persons are always impermissible and undesirable.  But that presumption does not correspond precisely to the reality of government operations as they are conducted in practice.

The leaders of the House and Senate Intelligence Committees said last week that they would work “to ensure that criminal and administrative measures are taken each time sensitive information is improperly disclosed.”

In fact, however, classified information is frequently disclosed at the interface between national security agencies and the news media.  This is not necessarily a surreptitious or underhanded process.  Rather, though it is not often discussed, it is how the system normally functions.

“I refer to classified information a lot,” admitted then-Pentagon press secretary Kenneth Bacon at a November 2000 press briefing, when asked whether all of his statements from the podium were unclassified.

“There are certain questions that I can only answer by referring to classified information,” Mr. Bacon said at that time, adding that “I do this carefully, after consultation with our intelligence authorities, to make sure that I don’t answer questions in a way that causes any problems.”

This type of routine public discussion of classified information would have been obstructed if there were a law that categorically prohibited all unauthorized disclosures of classified information.  When Congress passed such a measure in 2000, Mr. Bacon and other executive branch officials quietly opposed it, and it was ultimately vetoed by President Clinton.

“There are certain types of questions that can only be answered with references to classified information,” Mr. Bacon told reporters following the presidential veto.  “One of the concerns that I and other spokespeople had [about the vetoed provision was that] it would prevent reference to classified information in answering everyday questions.”

Thus, the peculiar reality is that certain officials routinely take it upon themselves to discuss classified information with unauthorized persons.  They do so not to subvert policy but to explain it, to defend it and to execute it.  Though it may seem counterintuitive (and may in fact violate formal procedures), sometimes officials will even reveal currently classified information in order to enhance security.

Veteran aerospace journalist Craig Covault wrote an article last week in which he recalled once such incident in the 1970s.  At that time Mr. Covault was the space technology editor at Aviation Week, which was sometimes referred to as “Aviation Leak” because of the prevalence of (actual or purported) classified information in its pages.  In the course of his reporting, Mr. Covault learned some details about the KH-11 intelligence satellite shortly following its first launch in December 1976.  After he queried Air Force public affairs about the matter, he received an urgent summons to discuss it that afternoon with the Chairman of the Joint Chiefs of Staff.  As he described it:

      “I showed up at the Pentagon at the appointed time and was taken up to the suite of offices used by Joint Chiefs Of Staff, then ushered into the office of Air Force General David Jones, a four star that had commanded the Strategic Air Command before becoming Chairman. My escort then departed and it was just Jones and myself left to discuss this issue.”
      “He said he was familiar with my coverage then asked ‘what have you got?’ I explained in significant detail what sources had told me about the new reconnaissance system.”
      “‘You are exactly right’ said Jones, ‘and now I am going to give you the reasons why we request that you not publish’.”
      “He then cited specific examples where the Soviets were not taking any measures to conceal what they were doing as this first KH-11 approached and passed overhead. Unlike the KH-9s, they did not realize yet that this was a high resolution imaging spacecraft that could see people, and tell if they were carrying a lunchbox or not.”
      “Jones said the Soviets were leaving missile silo doors open allowing us to ‘look right in’ and keeping their own new secret aircraft in the open.  If I published, it would ruin a major U. S. intelligence advantage. Jones had clearly demonstrated that no articles on the KH-11 should be written at that time so I agreed to his request to hold.”
      “And on the way out he asked. ‘Now is there anything I can do for you?'”
      “There was certainly no quid pro quo in my mind for this discussion, so his question was a surprise. But when he asked that, I told him I had not received any consistent backgrounders on the Soviet space program. ‘You will have them now,’ Gen. Jones said, and for the next two years I received classified backgrounders on the Soviet space program at the Defense Intelligence Agency.”

This is a remarkable anecdote in several respects.  Significantly, General Jones did not declassify the information about the KH-11 satellite, which remained highly classified.  Instead, he simply revealed it to Mr. Covault, an uncleared reporter, even though this was technically inconsistent with procedures in effect then and now.  Gen. Jones did not insist that Mr. Covault sign a non-disclosure agreement, or that he submit his work to some kind of prepublication review.  Rather, he simply argued the case for secrecy on the merits, and he succeeded in persuading Mr. Covault not to publish the information in question, to the presumptive benefit of national security.  (On another occasion described by Mr. Covault in the same article, he found the government’s request not to publish unpersuasive and disregarded it.)

Was General Jones guilty of “leaking” information to Mr. Covault?  Should the Chairman of the Joint Chiefs of Staff have been fired or sent to prison for his actions?  He certainly disclosed highly classified information to an unauthorized person, and he did so not once but repeatedly through the ongoing classified briefings that he arranged for Mr. Covault.

In other respects, though, this story is quite unremarkable.  Many national security reporters who write about classified government activities and seek a response from a government spokesman will have a similar (though perhaps less dramatic) tale to tell.

If members of Congress are determined to impose punitive measures “each time” that classified information is disclosed, then they will be confusing means (secrecy) and ends (security).  They run the risk of turning an already sluggish classification system into one that is so rigid as to be self-defeating.

There is no doubt such a thing as a wrongful and unlawful disclosure of classified information, but it seems that there are also wise, prudent and appropriate disclosures of classified information.  The actions of General Jones — or of Kenneth Bacon or innumerable others who have acknowledged or revealed classified information in similar circumstances — were not those of a criminal, and it would almost certainly be counterproductive to try to designate them categorically as crimes.

Some of the challenges involved in prosecuting a leak case were discussed in “For U.S. Inquiries on Leaks, a Difficult Road to Prosecution” by Charlie Savage, New York Times, June 10, 2012.

LOOPHOLE IN LAW MAY ALLOW WARRANTLESS SURVEILLANCE OF AMERICANS

Members of the Senate Intelligence Committee are divided over whether there is a loophole in current law which would permit government agencies to monitor the communications of American citizens without any kind of warrant or other judicial authorization.

The dispute was presented but not resolved in a new Senate Intelligence Committee report on the Foreign Intelligence Surveillance Act Amendments Act (FAA) Sunsets Extension Act, which would renew the provisions of the FISA Amendments Act through June 2017.

“We have concluded… that section 702 [of the Act] currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens,” wrote Senators Ron Wyden and Mark Udall.

But Senator Dianne Feinstein, the Committee chair, denied the existence of a loophole.  Based on the assurances of the Department of Justice and the Intelligence Community, she said that the Section 702 provisions “do not provide a means to circumvent the general requirement to obtain a court order before targeting a U.S. person under FISA.”

It is unclear from the public record which of these conflicting positions is more likely to be correct.

Senators Wyden and Udall offered an amendment to explicitly prohibit searches of U.S. persons’ communications that are incidentally gathered in the course of FISA surveillance of foreign persons abroad unless there is a warrant or other authorization permitting surveillance of that specific person, but their amendment was voted down in Committee by 13-2.

“We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number,” Sens. Wyden and Udall wrote.  An Inspector General review is now underway to determine whether it is feasible to estimate the number, Sen. Feinstein noted.

See FAA Sunsets Extension Act of 2012, Senate Report 112-174, June 7, 2012.

The first three semi-annual reports on compliance with the procedures of Section 702 of the FISA Amendments Act were recently released in redacted form by the Office of the Director of National Intelligence.

Those reports generally found no evidence of “any intentional or willful attempts to violate or circumvent the requirements of the Act.”  On the other hand, “certain types of compliance incidents continue to occur, indicating the need for continued focus on measures to address underlying causes, including the potential need for additional measures.”

Secrecy News

June 6, 2012

MCCAIN CALLS FOR SPECIAL COUNSEL TO INVESTIGATE LEAKS

Sen. John McCain asked the Obama Administration to appoint a special counsel to investigate recent leaks of classified information to the news media.  He condemned the disclosure of classified information in several recent news stories involving U.S. cyber attacks on Iran’s nuclear program and the use of drones in targeted killing programs, among others.  And he accused the Obama Administration of willfully promoting the disclosures.

The leaks appear to be part of “a broader effort by the administration to paint a portrait of the President of the United States as a strong leader on national security issues,” Sen. McCain said on the Senate floor yesterday.

Sen. Saxby Chambliss echoed that assessment.  “From kill lists and bin Laden movies to cyber warfare, it appears nothing is off-limits, nothing is too secret, no operation is too sensitive, and no source is too valuable to be used as a prop in this election year posturing.”

Sen. McCain therefore demanded an urgent investigation into the leaks.

“I call on the President to take immediate and decisive action, including the appointment of a special counsel, to aggressively investigate the leak of any classified information on which the recent stories were based and, where appropriate, to prosecute those responsible,” he said.

Sen. McCain indicated that Sen. Carl Levin, chair of the Senate Armed Services Committee, had agreed to hold hearings on the subject.

Beyond the expression of outrage, Sen. McCain’s statement had a number of other interesting features.

He noted the “unacceptable” incongruity of prosecuting lower-level personnel such as Bradley Manning, Jeffrey Sterling or John Kiriakou for allegedly leaking classified information while holding senior officials blameless for what appear to be comparable offenses.

“The fact that this administration would aggressively pursue leaks perpetrated by a 22-year-old Army private in the Wikileaks matter and former CIA employees in other leaks cases but apparently sanction leaks made by senior administration officials for political purposes is simply unacceptable,” Sen. McCain said.

Sen. Chambliss added that “This administration reminds us repeatedly that they are prosecuting more people for leaking classified information than ever before, and I support that effort. But just as we hold ordinary government employees accountable for violating their oaths to protect our Nation’s secrets, we must also hold the most senior administration officials accountable.”

Sen. McCain also made the complicating observation that leaks of classified information are normal, to be expected, and sometimes positively desirable.

“As my colleague well knows, the leaks are part of the way the environment exists in our Nation’s capital, and leaks will always be part of the relationship between media and both elected and appointed officials. I understand that. I think my colleague would agree there have been times where abuses have been uncovered and exposed because of leaks…, and we have always applauded that,” Sen. McCain said.

Further, he noted, “There has also continuously been a problem of overclassification of information so government officials don’t have to–be it Republican or Democratic administrations–discuss what is going on publicly.”  But he did not call for a special counsel to investigate overclassification or propose other measures to address that problem.

Sen. Dianne Feinstein also issued a statement yesterday condemning leaks.  She noted her intention to include new provisions in the pending intelligence authorization bill to require “more forceful investigations of unauthorized disclosures” and “additional authorities and resources for the U.S. government to identify and prosecute” those who leak classified information.

DEFENSE DEPARTMENT ENERGY NEEDS, AND MORE FROM CRS

The Department of Defense is by far the largest government consumer of energy, having spent around $17 billion on fuel last year, according to a new report from the Congressional Research Service.

“DOD’s reliance on fuel can lead to financial, operational, and strategic challenges and risks,” which are explored in the report.  See Department of Defense Energy Initiatives: Background and Issues for Congress, June 5, 2012.

Other new and updated CRS reports that Congress has barred CRS from publishing online include the following.

Federal Research and Development Funding: FY2013, June 1, 2012

Reaching the Debt Limit: Background and Potential Effects on Government Operations, May 31, 2012

The U.S. Postal Service’s Use of Contractors to Deliver Mail: Background and Recent Developments, May 29, 2012

Department of Homeland Security Appropriations: A Summary of the House- and Senate-Reported Bills for FY2013, June 1, 2012

Health Care Flexible Spending Accounts, June 5, 2012

Ability to Repay, Risk-Retention Standards, and Mortgage Credit Access, June 5, 2012

Secrecy News

June 6, 2012

BILL TO STRENGTHEN WHISTLEBLOWER PROTECTIONS ADVANCES

Last week the House Oversight Committee reported out the Whistleblower Protection Enhancement Act, a bill that is intended to increase protections for government employees and contractors who “blow the whistle” and disclose illegal or improper government activity.  Among other things, the bill would require intelligence agency heads to advise employees on how to make lawful disclosures of classified information without retribution.

“Whistleblowers are crucial in helping to expose waste, fraud, abuse, mismanagement and criminal activity across the Federal government,” the May 30 House Committee report stated. “Their disclosures can save billions of dollars, and even human lives. It is vital that Congress encourage–not discourage–these well-intentioned individuals from coming forward.”

The pending bill would bolster the comparatively flimsy provisions of the Intelligence Community Whistleblower Protection Act.  Establishing improved channels for lawful disclosures of illegal activity could serve to diminish incentives for unauthorized disclosures of classified information, the Committee suggested.

“These modifications are intended to reduce the often destructive disclosures that occur through anonymous leaks by providing an alternative in which institutional channels can be used by whistleblowers assured of certain safeguards,” the report said.

The House Committee did not approve a provision that would have allowed whistleblowers who have suffered retaliation for their actions to request a jury trial.

Last month, the Senate passed its version of the Whistleblower Protection Enhancement Act by unanimous consent.

“Approximately 450 whistleblower cases and around 2,000 complaints about prohibited personnel practices (including engaging in reprisals against whistleblowers) are filed against the federal government each year,” according to a Senate report on the bill.

LEIBOWITZ LEAK CASE SAID TO BE UNRELATED TO ISRAELI EMBASSY

Shamai Leibowitz was the first person in the Obama Administration to be charged under the Espionage Act with leaking classified information to the press.  He pleaded guilty and was sentenced to a jail term that he completed last year. (“Jail Sentence Imposed in Leak Case,” Secrecy News, May 25, 2010).

Leibowitz, an Israel-American who has been a vocal, even radical critic of Israeli government policies, was employed as a contract linguist and translator for the Federal Bureau of Investigation.  He was charged with disclosing secret documents concerning “communication intelligence activities of the United States.”  The precise nature of those documents was not disclosed even to the judge who sentenced Mr. Leibowitz.

Last September, the New York Times reported that Mr. Leibowitz had “passed on secret transcripts of conversations caught on FBI wiretaps of the Israeli Embassy in Washington.  Those overheard by the eavesdroppers included American supporters of Israel and at least one member of Congress,” the Times reported, based on information from blogger Richard Silverstein.  See “Leak Offers Look at Efforts by U.S. to Spy on Israel” by Scott Shane, New York Times, September 6, 2011.

But that’s not true, Mr. Leibowitz wrote in his blog today.

“Unfortunately, many people consider whatever they read on the web or in the newspapers as the truth set in stone. What can you do against it? Not much!” he wrote. By the terms of his plea agreement, he is not permitted to publicly discuss the contents of the leaked documents.

“All I can say is that my work had nothing to do with the Israeli Embassy and I certainly never listened to wiretaps of the Israeli Embassy.”

“I never did anything against the State of Israel, as I am a proud Israeli citizen… I have no problem – as was falsely alleged – with Israelis lobbying Congress.”

“Rather, my actions involved a situation when I came across documents that showed the FBI is committing illegal and unconstitutional acts, and instead of following the chain of command, I showed it to a journalist. And for that mistake I paid a price…,” he wrote.

In other respects, Mr. Leibowitz seems to have endured the ordeal of prison with extraordinary equanimity.

“It’s been nearly a year since I was released from a minimum-security prison after spending there one year,” Mr. Leibowitz wrote. “When I was released I did not feel that I regained my freedom because I never lost my freedom in the first place.”