SECRET – U.S. Army Cyber Electromagnetic Activities (CEMA) Manual

SECRET – U.S. Army Cyber Electromagnetic Activities (CEMA) Manual

The following manual was released by the U.S. Army on February 12, 2014.  The manual was first reported by Steven Aftergood of the Federation of American Scientists.

FM 3-38 Cyber Electromagnetic Activities

  • 96 pages
  • February 12, 2014

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FM 3-38, Cyber Electromagnetic Activities, provides overarching doctrinal guidance and direction for conducting cyber electromagnetic activities (CEMA). This manual describes the importance of cyberspace and the electromagnetic spectrum (EMS) to Army forces and provides the tactics and procedures commanders and staffs use in planning, integrating, and synchronizing CEMA.

This manual provides the information necessary for Army forces to conduct CEMA that enable them to shape their operational environment and conduct unified land operations. It provides enough guidance for commanders and their staffs to develop innovative approaches to seize, retain, and exploit advantages throughout an operational environment. CEMA enable the Army to achieve desired effects in support of the commander’s objectives and intent.

The principal audience for FM 3-38 is all members of the profession of arms. Commanders and staffs of Army headquarters serving as joint task force or multinational headquarters should see applicable joint or multinational doctrine concerning cyberspace operations, electronic warfare (EW), and spectrum management operations (SMO). Trainers and educators throughout the Army will also use this manual.

CYBER ELECTROMAGNETIC ACTIVITIES DEFINED
1-1. Cyber electromagnetic activities are activities leveraged to seize, retain, and exploit an advantage over adversaries and enemies in both cyberspace and the electromagnetic spectrum, while simultaneously denying and degrading adversary and enemy use of the same and protecting the mission command system (ADRP 3-0). CEMA consist of cyberspace operations (CO), electronic warfare (EW), and spectrum management operations (SMO) (see figure 1-1 on page 1-2).

1-2. Army forces conduct CEMA as a unified effort. Integration is the arrangement of military forces and their actions to create a force that operates by engaging as a whole (JP 1-02). Synchronization is the arrangement of military actions in time, space, and purpose to produce maximum relative combat power at a decisive place and time (JP 1-02). CEMA integrates and synchronizes the functions and capabilities of CO, EW, and SMO to produce complementary and reinforcing effects. Conducting these activities independently may detract from their efficient employment. If uncoordinated, these activities may result in conflicts and mutual interference between them and with other entities that use the electromagnetic spectrum (EMS). CO, EW, and SMO are synchronized to cause specific effects at decisive points to support the overall operation.

1-3. The CEMA element is responsible for planning, integrating, and synchronizing CO, EW, and SMO to support the commander’s mission and desired end state within cyberspace and the EMS. During execution the CEMA element is responsible for synchronizing CEMA to best facilitate mission accomplishment. (See chapter 2 for more information on the CEMA element.)

1-4. Cyberspace operations, EW, and SMO are essential to the conduct of unified land operations. While these activities differ in their employment and tactics, their functions and capabilities must be integrated and synchronized to maximize their support to unified land operations. The integration of these activities requires an understanding of the functions and capabilities being employed.

CYBERSPACE OPERATIONS

1-5. Cyberspace operations are the employment of cyberspace capabilities where the primary purpose is to achieve objectives in or through cyberspace (JP 3-0). Cyberspace operations consist of three functions: offensive cyberspace operations, defensive cyberspace operations, and Department of Defense information network operations (see chapter 3).

ELECTRONIC WARFARE

1-6. Electronic warfare is any military action involving the use of electromagnetic and directed energy to control the electromagnetic spectrum or to attack the enemy (JP 3-13.1). EW consists of three functions: electronic attack, electronic protection, and electronic warfare support. These functions are referred to as divisions in joint doctrine (see chapter 4).

SPECTRUM MANAGEMENT OPERATIONS

1-7. SMO are the interrelated functions of spectrum management, frequency assignment, host-nation coordination, and policy that enable the planning, management, and execution of operations within the electromagnetic operational environment during all phases of military operations. SMO are the management portions of electromagnetic spectrum operations (EMSO). EMSO also include electronic warfare (see chapter 5)

FUNCTIONS OF CYBERSPACE OPERATIONS

3-1. Army forces coordinate and integrate CO through CEMA. They do this to gain and maintain freedom of action in cyberspace and as required to achieve periods of cyberspace superiority.

3-2. Cyberspace superiority is the degree of dominance in cyberspace by one force that permits the secure, reliable conduct of operations by that force, and its related land, air, maritime, and space forces at a given time and place without prohibitive interference by an adversary (JP 1-02). Such interference is possible because large portions of cyberspace are not under the control of friendly forces. Cyberspace superiority establishes conditions describing friendly force freedom of action while denying this same freedom of action to enemy and adversary actors. Ultimately, Army forces conduct CO to create and achieve effects in support of the commander’s objectives and desired end state.

3-3. CO are categorized into three functions including offensive cyberspace operations (OCO), defensive cyberspace operations (DCO), and Department of Defense information network operations. These functions are described in joint doctrine as missions in cyberspace that require specific actions in cyberspace (see joint doctrine for CO). Figure 3-1 on page 3-2 depicts the three interdependent functions of CO.

OFFENSIVE CYBERSPACE OPERATIONS

3-4. Offensive cyberspace operations are cyberspace operations intended to project power by the application of force in or through cyberspace (JP 1-02). Army forces conduct OCO across the range of military operations by targeting enemy and hostile adversary activity and related capabilities in and through cyberspace. OCO are designed to support the commander’s objectives and intent consistent with applicable authorities and legal frameworks. (See paragraph 3-38 for additional information on authorities and other legal considerations.)

3-5. OCO are conducted in and through cyberspace where information technology infrastructures, along with the people and systems that use them, exist in an area of operations and pervade an operational environment. To varying degrees, host-nation populations, governments, security forces, businesses and other actors rely upon these infrastructures and supporting networks or systems. Given these conditions, OCO require deliberate coordination and integration to ensure desired effects (changes in behavior which do not suggest the ways or means those changes were created) are created and focused at the right place and time in support of the commander’s objectives.

3-6. Using OCO, commanders can mass effects through the employment of lethal and nonlethal actions leveraging all capabilities available to gain advantages in cyberspace that support objectives on land. For example, cyberspace capabilities and other information-related capabilities may be directed at an enemy weapons system consisting of the targeted platform and its operators. The cyberspace capability could create degrading effects on the platform while an information-related capability influences, disrupts, corrupts, or usurps the decisionmaking of the operator. (See FM 3-13 for additional information on inform and influence activities (IIA) and information-related capabilities.)

CYBERSPACE ATTACK

3-7. A cyberspace attack consists of actions that create various direct denial effects in cyberspace (for example, degradation, disruption, or destruction) and manipulation that leads to denial that is hidden or that manifests in the physical domains. For the Army, cyberspace attacks are a type of cyberspace operation employed primarily in support of OCO. Cyberspace attacks are primarily employed outside of LandWarNet, but they are coordinated and deconflicted inside of the Department of Defense information networks (DODIN). (See paragraph 3-24 for additional information on the DODIN.)

3-8. Army forces conduct or facilitate cyberspace attacks in support of OCO within designated areas of operation. For example, when employed as part of an offensive cyberspace operation, a cyberspace attack may be directed at information resident in, or in transit between, computers (including mobile phones and personal digital assistants) and computer networks used by an enemy or adversary. Enemy or adversary actors may be denied the ability to use resources or have their information resources used for friendly proposes as a result of a cyberspace attack. In every instance, commanders and staffs follow appropriate authorities and legal guidance. (See paragraph 3-38 for additional information on authorities and other legal considerations.)

3-9. Using specific portions of cyberspace and the electromagnetic spectrum (EMS) as primary pathways or avenues of approach, cyberspace attacks may employ capabilities such as tailored computer code in and through various network nodes such as servers, bridges, firewalls, sensors, protocols, operating systems, and hardware associated with computers or processors. Tailored computer code is only one example of a cyberspace capability (a device, computer program, or technique, including any combination of software, firmware, or hardware) designed to create an effect in or through cyberspace. The development and employment of tailored computer code represents the core and unique technical nature of CO capabilities. Computer code is designed to create specific effects, and when employed this code moves in the form of data packets in and through cyberspace across wired and wireless driven communication technology and systems. Cyberspace attacks must therefore be coordinated and integrated in support of the commander’s objectives and consistent with applicable assessment measures and indicators.

3-10. Cyberspace attack capabilities are employed to support maneuver operations by creating simultaneous and complementary effects. For example, a cyberspace attack capability may be employed in conjunction with electronic attack, offensive space control, fires, and information related capabilities to deceive, degrade, destroy, and disrupt a specific enemy integrated air defense system or enemy safe haven (see table 3-1 on page 3-4).

 

SECRECY NEWS – SUBPOENA OF AP PHONE RECORDS SAID TO DAMAGE PRESS FREEDOM

SECRECY NEWS – SUBPOENA OF AP PHONE RECORDS SAID TO DAMAGE PRESS FREEDOM
The government seizure of Associated Press telephone records in the course
of a leak investigation undermined freedom of the press in the United
States, congressional critics said yesterday.

"It seems to me the damage done to a free press is substantial," said Rep.
Zoe Lofgren at a hearing of the House Judiciary Committee.

Pursuant to subpoena, the government captured call records for 20
telephone lines of Associated Press reporters and editors over a two month
period last year.  The records are logs of calls made and received, but do
not include their contents.  It was a "massive and unprecedented intrusion"
into newsgathering activities, wrote the AP's president Gary Pruitt in a
May 13 letter.

The Justice Department denied that the action deviated from established
policy.

"We understand your position that these subpoenas should have been more
narrowly drawn, but in fact, consistent with Department policy, the
subpoenas were limited in both time and scope," wrote Deputy Attorney
General James M. Cole in a May 14 reply.

The  move arose from an AP story about a disrupted bomb plot originating
in Yemen that led to the revelation of a classified counterterrorism
operation and the existence of a valued agent. "This is among the top two
or three serious leaks that I've ever seen" said Attorney General Eric
Holder. He did not elaborate.

Meanwhile, the upshot is that any presumption of confidentiality in the
source-reporter relationship has been compromised across the board,
especially but not only in national security reporting.

        http://www.npr.org/templates/story/story.php?storyId=183984442

"Reporters who might have previously believed that a confidential source
would speak to them would no longer have that level of confidence, because
those confidential sources are now going to be chilled in their
relationship with the press," Rep. Lofgren said yesterday.

Last year, congressional leaders harshly criticized the Obama
Administration for supposedly failing to aggressively combat leaks of
classified information, including in the present case.

"The Administration's disregard for the Constitution and rule of law not
only undermines our democracy, it threatens our national security," said
Rep. Lamar Smith, at a hearing of the House Judiciary Committee on June 7
of last year. "The Justice Department has not taken the initiative to
prosecute leaks of national security secrets. Recent leaks about a foiled
bomb plot out of Yemen and a cyberattack against Iran are, in the words of
Senate Intelligence Chairwoman Dianne Feinstein, quote, 'very detrimental,
very concerning, and hurt our country,' end quote."

The irony was not lost on Rep. Jerrold Nadler.

"I think we should put this in context, and remember that less than a year
ago this committee's Republican leadership demanded aggressive
investigation of press leaks, accusing the administration itself of
orchestrating those leaks," he noted. "Then, members of this committee
wanted the reporters subpoenaed, put in front of grand juries and
potentially jailed for contempt. Now, of course, it is convenient to attack
the attorney general for being too aggressive or the Justice Department for
being too aggressive."

"But this inconsistency on the part of my Republican colleagues should not
distract us from legitimate questions worthy of congressional oversight,
including whether the Espionage Act has been inappropriately used looking
at leakers, whether there is a need for a greater press shield,... and
Congress' broad grants of surveillance authority and immunity," Rep. Nadler
said.

Rep. Lofgren said that the damage done to freedom of the press by the
clandestine seizure of AP phone records "will continue until corrective
action is taken."

GPO SUSPENDS PUBLIC ACCESS TO SOME NASA RECORDS

The Government Printing Office is blocking public access to some
previously released records of the National Aeronautics and Space
Administration, while the records are reviewed to see if they contain
export-controlled information.  The move follows the controversial
disabling and partial restoration of the NASA Technical Reports Server
(NTRS) ("NASA Technical Report Database Partly Back Online," Secrecy News,
May 9.)

"GPO has been asked to suspend any activity related to making these
documents available if they have not been reviewed," GPO said in a notice
today.

        http://beta.fdlp.gov/news-and-events/

"During this time, PURLs that GPO has created for the electronic versions
of NASA Technical Reports found in cataloging records accessed through the
Catalog of U.S. Government Publications (CGP) may not link to the documents
that the catalog record describes."

US-CHINA MOTOR VEHICLE TRADE, AND MORE FROM CRS

"In 2009, China overtook the United States to become both the world's
largest producer of and market for motor vehicles," a new report from the
Congressional Research Service notes.

That is not altogether bad news. "Every year since 2010, General Motors
has sold more cars in China (through exports and its joint ventures there)
than in the United States," CRS said. "On the other hand, China maintains a
number of trade and investment barriers that affect trade flows in autos
and auto parts."

See U.S.-Chinese Motor Vehicle Trade: Overview and Issues, May 13, 2013:

        http://www.fas.org/sgp/crs/row/R43071.pdf

Other new and updated reports from the Congressional Research Service that
Congress has declined to make publicly available include the following.

Regulation of Fertilizers: Ammonium Nitrate and Anhydrous Ammonia, May 9,
2013:

        http://www.fas.org/sgp/crs/homesec/R43070.pdf

Haiti Under President Martelly: Current Conditions and Congressional
Concerns, May 10, 2013:

        http://www.fas.org/sgp/crs/row/R42559.pdf

Women in Combat: Issues for Congress, May 9, 2013:

        http://www.fas.org/sgp/crs/natsec/R42075.pdf

The Peace Corps: Current Issues, May 10, 2013:

        http://www.fas.org/sgp/crs/misc/RS21168.pdf

Proposals to Eliminate Public Financing of Presidential Campaigns, May 10,
2013:

        http://www.fas.org/sgp/crs/misc/R41604.pdf

The Federal Budget: Issues for FY2014 and Beyond, May 9, 2013:

        http://www.fas.org/sgp/crs/misc/R43068.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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Support the FAS Project on Government Secrecy with a donation:
     https://members.fas.org/donate

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – SENATE CONFIRMS CHAIR OF PRIVACY & CIVIL LIBERTIES BOARD

SECRECY NEWS – SENATE CONFIRMS CHAIR OF PRIVACY & CIVIL LIBERTIES BOARD

Almost a year and a half after he was nominated by President Obama in December 2011, the Senate yesterday confirmed David Medine to be the chairman of the Privacy and Civil Liberties Oversight Board by a vote of 53-45. http://www.fas.org/irp/congress/2013_cr/medine.html Republicans, led by Sen. Charles Grassley, opposed the nominee and voted against him. “I was disappointed that he failed to answer a basic yes-or-no question about national security law: ‘Do you believe that we are engaged in a war on terrorism?’,” Sen. Grassley said. “Instead of a simple yes or no, he opted for a more limited answer that military power is permissible in appropriate cases.” Democrats, led by Sen. Patrick Leahy, praised Mr. Medine and the Board that he will now lead. “The confirmation of this nominee is a significant victory for all Americans who care about safeguarding our privacy rights and civil liberties,” Sen. Leahy said. “The Privacy and Civil Liberties Oversight Board is a guardian of Americans’ privacy rights and civil liberties as well as an essential part of our national security strategy,” he said. But this seems like an overstatement. The size of the five-member Board and the resources available to it are not commensurate with the responsibilities it has nominally been assigned. It cannot possibly perform comprehensive oversight of the broad range of privacy or civil liberties concerns that arise in the national security domain. Expectations to the contrary are bound to be disappointed. At best, the Board may serve as a boutique oversight shop that tackles a couple of discrete policy issues each year. For background on the origins and development of the Board, see Privacy and Civil Liberties Oversight Board: New Independent Agency Status, Congressional Research Service, August 27, 2012: http://www.fas.org/sgp/crs/misc/RL34385.pdf INTERNATIONAL INTELLIGENCE AGREEMENTS, AND OTHER DOD DIRECTIVES The procedures by which the U.S. Air Force establishes international agreements for the exchange of intelligence information with foreign military services were described in a new Air Force Instruction. “Foreign military organizations being considered for inclusion in an IIA (international intelligence agreement) must clearly support U.S. security and foreign policy objectives. The foreign government must have favorable relations with the United States; a well-developed, secure intelligence service; and a stable domestic environment and military unity. Known national characteristics of the foreign government in question must fall within the guidelines of the United States national disclosure and security policy, and be reasonably expected to have adequate fiscal means, and conform to legal guidelines,” the Instruction states. Such agreements must “Provide for mutual support (quid pro quo)” and must “Provide intelligence that would otherwise be denied to the United States.” See Air Force Instruction 14-102, International Intelligence Agreements, April 29, 2013: http://www.fas.org/irp/doddir/usaf/afi14-102.pdf Another new Department of Defense Instruction governs records management within the Office of the Secretary of Defense. “It is DoD policy,” it states, “to limit the creation of records to those essential for the efficient conduct of official business and to preserve those of continuing value while systematically eliminating all others.” See OSD Records and Information Management Program, Administrative Instruction 15, May 3, 2013: http://www.fas.org/irp/doddir/dod/ai15.pdf Other noteworthy new military publications include the following. Information Operations (IO), DoD Directive 3600.01, May 2, 2013: http://www.fas.org/irp/doddir/dod/d3600_01.pdf DODD 5134.10 Defense Advanced Research Projects Agency (DARPA), DoD Directive 5134.10, May 7, 2013: http://www.fas.org/irp/doddir/dod/d5134_10.pdf THE U.S. SCIENCE AND ENGINEERING WORKFORCE, AND MORE FROM CRS New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following. The U.S. Science and Engineering Workforce: Recent, Current, and Projected Employment, Wages, and Unemployment, May 6, 2013: http://www.fas.org/sgp/crs/misc/R43061.pdf Securing U.S. Diplomatic Facilities and Personnel Abroad: Background and Policy Issues, May 7, 2013: http://www.fas.org/sgp/crs/row/R42834.pdf Tax Reform in the 113th Congress: An Overview of Proposals, May 6, 2013: http://www.fas.org/sgp/crs/misc/R43060.pdf Border Security: Immigration Enforcement Between Ports of Entry, May 3, 2013: http://www.fas.org/sgp/crs/homesec/R42138.pdf Terrorist Watch List Screening and Background Checks for Firearms, May 1, 2013: http://www.fas.org/sgp/crs/terror/R42336.pdf Missing Adults: Background, Federal Programs, and Issues for Congress, May 7, 2013: http://www.fas.org/sgp/crs/misc/RL34616.pdf Kosovo: Current Issues and U.S. Policy, May 7, 2013: http://www.fas.org/sgp/crs/row/RS21721.pdf Central America Regional Security Initiative: Background and Policy Issues for Congress, May 7, 2013: http://www.fas.org/sgp/crs/row/R41731.pdf Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives, May 2, 2013: http://www.fas.org/sgp/crs/misc/RL31382.pdf No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress, May 3, 2013: http://www.fas.org/sgp/crs/natsec/R41701.pdf Instances of Use of United States Armed Forces Abroad, 1798-2013, May 3, 2013: http://www.fas.org/sgp/crs/natsec/R42738.pdf _______________________________________________ Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists. The Secrecy News Blog is at: http://www.fas.org/blog/secrecy/ To SUBSCRIBE to Secrecy News, go to: http://blogs.fas.org/secrecy/subscribe/ To UNSUBSCRIBE, go to http://blogs.fas.org/secrecy/unsubscribe/ OR email your request to saftergood@fas.org Secrecy News is archived at: http://www.fas.org/sgp/news/secrecy/index.html Support the FAS Project on Government Secrecy with a donation: https://members.fas.org/donate _______________________ Steven Aftergood Project on Government Secrecy Federation of American Scientists web: http://www.fas.org/sgp/index.html email: saftergood@fas.org voice: (202) 454-4691

SECRECY NEWS – FISA SURVEILLANCE APPLICATIONS ROSE SLIGHTLY IN 2012

SECRECY NEWS – FISA SURVEILLANCE APPLICATIONS ROSE SLIGHTLY IN 2012

“During calendar year 2012, the Government made 1,856 applications to the
Foreign Intelligence Surveillance Court for authority to conduct electronic
surveillance and/or physical searches for foreign intelligence purposes.”

That somewhat opaque statistic was disclosed in the Justice Department’s
latest annual report to Congress on the Foreign Intelligence Surveillance
Act, filed on Tuesday. As is usually the case, none of the requests for
electronic surveillance were denied by the Court.

Click to access 2012rept.pdf

No matter how it is sliced and diced, the newly disclosed number of
applications does not yield much substance. It means that the government
submitted an average of 5 requests per day last year for intelligence
surveillance or physical search. It is about 5% higher than the number of
applications the year before (1,745), but quite a bit lower than the figure
from 2007 (2,371).

The number of applications does not correspond directly to the number of
targets, since multiple applications may be submitted in the course of an
individual investigation. Nor is the outcome of the surveillance or search
activity indicated in a way that would tend to validate or invalidate the
authorization after the fact.

In any case, the FIS Court did not deny any of the government’s requests
for authority to conduct electronic surveillance in whole or in part, the
report said, although unspecified modifications were made to 40 proposed
orders. The report does not say whether or not any requests for physical
search were disapproved or modified.

The government also made 212 applications for access to business records
and “tangible things” for foreign intelligence purposes, almost the same as
the 205 the year before.

And also in 2012, the FBI submitted 15,229 National Security Letter
requests for information concerning 6,223 different U.S. persons
(“excluding requests for subscriber information only”), down somewhat from
the 16,511 requests (concerning 7,201 different persons) the year before.

As an instrument of public oversight, the annual reports on FISA are only
minimally informative. They register gross levels of activity, but they
provide no measures of quality, performance or significance. Neither
counterintelligence successes nor failures can be discerned from the
reports. Nor can one conclude from the data presented that the FISA
process is functioning as intended, or that it needs to be curbed or
refined.

Congressional leaders blocked efforts to impose new or stronger public
reporting requirements when the FISA Amendments Act was reauthorized late
last year. However, Sen. Jeff Merkley and several Senate colleagues asked
the FIS Court to summarize its opinions in such a way as to facilitate
their eventual declassification and disclosure. This request has produced
no known results to date.

The FISA itself is a product of a rich period of political ferment in the
1970s when public and private institutions converged to promote increased
transparency, improved oversight and meaningful new constraints on
government authority. Investigative journalists wrote groundbreaking
stories, Congressional committees held historic hearings, political
activists and ordinary citizens mobilized to defend their interests,
leading to real and lasting changes. On the legislative front, these
included passage of an invigorated Freedom of Information Act, along with
the Privacy Act, the Government in the Sunshine Act, and the FISA, which
subjected intelligence surveillance activities to at least a degree of
independent judicial review.

An interesting account of that momentous period can be found in the new
book “Reining in the State: Civil Society and Congress in the Vietnam and
Watergate Eras” by Katherine A. Scott, University Press of Kansas, March
2013.

http://amazon.com/Reining-State-Society-Congress-Watergate/dp/070061897X

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

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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OR email your request to saftergood@fas.org

Secrecy News is archived at:
http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
https://members.fas.org/donate

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood

SECRECY NEWS – SEQUESTRATION SLOWS DOCUMENT DECLASSIFICATION

SECRECY NEWS – SEQUESTRATION SLOWS DOCUMENT DECLASSIFICATION

The process of declassifying national security records, which is hardly
expeditious under the best of circumstances, will become slower as a result
of the mandatory budget cuts known as sequestration.

Due to sequestration, “NARA has reduced funding dedicated to the
declassification of Presidential records,” the National Archives and
Records Administration (NARA) said in a report last week.

“Instead, NARA staff will prepare documents for declassification, in
addition to their existing duties. This will slow declassification
processes and delay other work, including FOIA responses and special access
requests,” said the new report, which also identified several other adverse
effects of the across-the-board cuts.

Click to access nara-seq.pdf

Meanwhile, because of the basic asymmetry between classification and
declassification, there is no particular reason to expect a corresponding
reduction in the rate at which new records are classified.

Classification is an integral part of the production of new national
security information that cannot be deferred, while declassification is a
distinct process that can easily be put on hold. Likewise, there is no
dedicated budget for “classification” to cut in the way that NARA has cut
declassification spending. And while Congress has erected barriers to
declassification (such as the Kyl-Lott Amendment to prohibit automatic
declassification of records without review), it has simultaneously allowed
declassification requirements to go overlooked and unenforced.

Some declassification is actually mandated by law. A 1991 statute on the
Foreign Relations of the United States series requires the Department of
State to publish a “thorough, accurate, and reliable documentary record of
major United States foreign policy decisions” no later than 30 years after
the fact, necessitating the timely declassification of the underlying
records. But law or no law, the government has not complied with this
publication schedule.

EGYPT AND THE IMF, AND MORE FROM CRS

A new report from the Congressional Research Service assesses the economic
state of post-revolution Egypt and finds it fairly grim.

“After more than two years of social unrest and economic stagnation
following the 2011 popular uprising, the government of Egypt is facing
serious economic pressures that, if not remedied, could lead to economic
collapse and possibly new levels of violence,” the report says.

“Egyptian authorities and the International Monetary Fund (IMF) have been
in negotiations for more than two years over an IMF loan to Egypt in
exchange for policy reforms that, if successful, could stave off economic
collapse and create more ‘inclusive’ growth…. [but] No agreement has been
finalized or implemented to date. Egyptian authorities have been reluctant
to commit to economic reforms that may be politically unpopular and
increase the country’s debt.”

Background on the negotiations and on U.S. aid to Egypt are presented in
Egypt and the IMF: Overview and Issues for Congress, April 29, 2013:

Click to access R43053.pdf

Some other CRS reports on Middle Eastern countries that have been recently
updated include the following.

Iraq: Politics, Governance, and Human Rights, April 26, 2013:

Click to access RS21968.pdf

Iran Sanctions, April 24, 2013:

Click to access RS20871.pdf

U.S. Foreign Aid to Israel, April 11, 2013:

Click to access RL33222.pdf

Iran: U.S. Concerns and Policy Responses, April 4, 2013:

Click to access RL32048.pdf

Jordan: Background and U.S. Relations, April 1, 2013:

Click to access RL33546.pdf

INTERNATIONAL INVESTMENT AGREEMENTS, AND MORE FROM CRS

The international agreements that constitute the infrastructure of
international trade and investment are spotlighted in an informative new
report from the Congressional Research Service.

“In the absence of an overarching multilateral framework on investment,
bilateral investment treaties (BITs) and investment chapters in free trade
agreements (FTAs), collectively referred to as ‘international investment
agreements,’ have emerged as the primary mechanism for promoting a
rules-based system for international investment,” the new report explains.

“Presently, there are over 3,000 BITs globally. The United States has
concluded 47 BITs, 41 of which have entered into force.” These treaties
were tabulated by CRS and presented along with other little-known data on
the subject in U.S. International Investment Agreements: Issues for
Congress, April 29, 2013:

Click to access R43052.pdf

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

Mountaintop Mining: Background on Current Controversies, April 29, 2013:

Click to access RS21421.pdf

National Park System: Establishing New Units, April 25, 2013:

Click to access RS20158.pdf

The Administrative Process by Which Groups May Be Acknowledged as Indian
Tribes by the Department of the Interior, April 26, 2013:

Click to access R43051.pdf

Social Security Disability Insurance (SSDI) Reform: An Overview of
Proposals to Reduce the Growth in SSDI Rolls, April 29, 2013:

Click to access R43054.pdf

Conventional Prompt Global Strike and Long-Range Ballistic Missiles:
Background and Issues, April 26, 2013:

Click to access R41464.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood

SECRECY NEWS – FBI TERRORISM INVESTIGATIONS, AND MORE FROM CRS

SECRECY NEWS – FBI TERRORISM INVESTIGATIONS, AND MORE FROM CRS

“Intelligence activity in the past decades has, all too often, exceeded
the restraints on the exercise of governmental power that are imposed by
our country’s Constitution, laws, and traditions,” according to the
Congressional Research Service.

The CRS, which shuns polemical claims, presents that assertion as a simple
statement of fact (although cautiously sourced to the 1976 Church Committee
report) in a newly updated report on FBI terrorism investigations.

The report reviews the FBI investigative process, the statutory framework
within which it operates, and the tools at its disposal, along with
oversight considerations for Congress. See The Federal Bureau of
Investigation and Terrorism Investigations, April 24, 2013:

Click to access R41780.pdf

Other new or newly updated CRS reports include the following.

Terrorism, Miranda, and Related Matters, April 24, 2013:

Click to access R41252.pdf

Terrorism Risk Insurance: Issue Analysis and Overview of Current Program,
April 26, 2013:

Click to access R42716.pdf

U.S. Air Force Bomber Sustainment and Modernization: Background and Issues
for Congress, April 23, 2013:

Click to access R43049.pdf

Multiyear Procurement (MYP) and Block Buy Contracting in Defense
Acquisition: Background and Issues for Congress, April 25, 2013:

Click to access R41909.pdf

U.S.-South Korea Relations, April 26, 2013:

Click to access R41481.pdf

Iran Sanctions, April 24, 2013:

Click to access RS20871.pdf

Intelligence Issues for Congress, April 23, 2013:

Click to access RL33539.pdf

Inflation-Indexing Elements in Federal Entitlement Programs, April 24,
2013:

Click to access R42000.pdf

Changes in the Arctic: Background and Issues for Congress, April 25, 2013:

Click to access R41153.pdf

Prevalence of Mental Illness in the United States: Data Sources and
Estimates, April 24, 2013:

Click to access R43047.pdf

DOD POLICY ON NON-LETHAL WEAPONS, AND OTHER NEW DIRECTIVES

The Department of Defense has revised its 1996 directive on non-lethal
weapons (NLW) to guide future development and procurement of this category
of weaponry.

“Unlike conventional lethal weapons that destroy their targets principally
through blast, penetration, and fragmentation, NLW employ means other than
gross physical destruction to prevent the target from functioning. NLW are
intended to have relatively reversible effects on personnel or materiel,”
the revised directive explains.

“It is DoD policy that NLW doctrine and concepts of operation will be
developed to reinforce deterrence and expand the range of options available
to commanders.”

The directive does not apply to information operations, cyber operations
or electronic warfare capabilities. See DoD Executive Agent for Non-Lethal
Weapons (NLW), and NLW Policy, DoD Directive 3000.03E, April 25, 2013:

Click to access d3000_03.pdf

Other noteworthy new or updated DoD issuances include the following.

DoD Nuclear Weapons Surety Program, DoD Directive 3150.02, April 24, 2013:

Click to access d3150_02.pdf

DoD Counterfeit Prevention Policy, DoD Instruction 4140.67, April 26,
2013:

Click to access i4140_67.pdf

Assistant to the Secretary of Defense for Intelligence Oversight
(ATSD(IO)), DoD Directive 5148.11, April 24, 2013:

Click to access d5148_11.pdf

Use of Excess Ballistic Missiles for Space Launch, Directive-Type
Memorandum (DTM) 11-008, July 5, 2011, Incorporating Change 3, April 25,
2013:

Click to access dtm-11-008.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood

SECRECY NEWS – GROUPS URGE WHITE HOUSE TO TAKE LEAD IN REDUCING SECRECY

SECRECY NEWS – GROUPS URGE WHITE HOUSE TO TAKE LEAD IN REDUCING SECRECY

The White House should undertake a focused effort to reduce national
security secrecy, some 30 public interest organizations urged President
Obama in a letter today.

Click to access steering.pdf

The groups called upon the President to adopt a recommendation of the
Public Interest Declassification Board to set up a White House-led Security
Classification Reform Steering Committee.

http://www.archives.gov/declassification/pidb/

“A presidentially appointed Steering Committee would provide a mechanism
for identifying and coordinating needed changes and for overcoming internal
agency obstacles to change,” the group letter said. “It would also reflect
the urgency of reining in a classification system that is largely
unchecked.”

To be effective, though, the proposed Steering Committee would need to be
something more than just a deliberative, coordinating body, such as the
ill-fated Security Policy Board of the 1990s.

http://www.fas.org/sgp/spb/index.html

Specifically, it would require “a clear mandate to reduce the size and
scope of the national security classification system,” the group letter
said, as well as active White House participation to ensure agency
cooperation and compliance.

In principle, reductions in national security secrecy can actually benefit
government agencies by diminishing the significant financial and
operational costs they incur for classification. But in practice, such
reductions have been hard to accomplish and agencies have resisted any
externally imposed limits on their presumed autonomy to classify as they
see fit.

Of all the potential ways to reduce secrecy that could be envisioned, the
proposal for a White House-led Steering Committee is currently the most
salient. That’s because it was recommended by the Public Interest
Declassification Board, who developed it in response to a request from
President Obama himself.

“I also look forward to reviewing recommendations from the study that the
National Security Advisor will undertake in cooperation with the Public
Interest Declassification Board to design a more fundamental transformation
of the security classification system,” the President wrote in a December
29, 2009 memorandum.

http://www.fas.org/sgp/obama/wh122909.html

Now the recommendations that the President looked forward to are in hand,
and it will be up to the White House to act.

SURVEY OF FEDERAL WHISTLEBLOWER LAWS, AND MORE FROM CRS

Dozens of federal laws protect employees who report waste, fraud or abuse
by their employers. Some of those laws, particularly those that apply to
private-sector workers, have been strengthened in recent years, according
to a new survey from the Congressional Research Service.

“Eleven of the forty laws reviewed in this report were enacted after 1999.
Among these laws are the Sarbanes-Oxley Act, the FDA Food Safety
Modernization Act, and the Dodd-Frank Wall Street Reform and Consumer
Protection Act,” the CRS report said.

The report “focuses on key aspects of the federal whistleblower and
anti-retaliation laws. For each law, the report summarizes the activities
that are protected, how the law’s protections are enforced, whether the law
provides a private right of action, the remedies prescribed by the law, and
the year the law’s whistleblower or anti-retaliation provisions were
adopted and amended.”

The report does not address national security whistleblowers, or those who
disclose classified information with or without authorization. See Survey
of Federal Whistleblower and Anti-Retaliation Laws, April 22, 2013:

Click to access R43045.pdf

Other new or newly updated CRS reports that Congress has not made publicly
available include the following.

State Taxation of Internet Transactions, April 19, 2013:

Click to access R41853.pdf

Drought in the United States: Causes and Issues for Congress, April 22,
2013:

Click to access RL34580.pdf

Department of Homeland Security Appropriations: A Summary of Congressional
Action for FY2013, April 22, 2013:

Click to access R42557.pdf

The FY2014 State and Foreign Operations Budget Request, April 18, 2013:

Click to access R43043.pdf

U.S.-EU Cooperation Against Terrorism, April 22, 2013:

Click to access RS22030.pdf

Expediting the Return to Work: Approaches in the Unemployment Compensation
Program, April 18, 2013:

Click to access R43044.pdf

Economic Recovery: Sustaining U.S. Economic Growth in a Post-Crisis
Economy, April 18, 2013:

Click to access R41332.pdf

Federal Research and Development Funding: FY2013, April 19, 2013:

Click to access R42410.pdf

The U.S. Export Control System and the President’s Reform Initiative,
April 19, 2013:

Click to access R41916.pdf

Mexico’s Drug Trafficking Organizations: Source and Scope of the Violence,
April 15, 2013:

Click to access R41576.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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Support the FAS Project on Government Secrecy with a donation:
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood

SECRECY NEWS – INTELLIGENCE SATELLITE IMAGERY DECLASSIFIED FOR RELEASE

An enormous volume of photographic imagery from the KH-9 HEXAGON
intelligence satellites was quietly declassified in January and will be
transferred to the National Archives later this year for subsequent public
release.

The KH-9 satellites operated between 1971 and 1984. The imagery they
generated should be of historical interest with respect to a wide range of
late Cold War intelligence targets but is also expected to support current
scientific research on climate change and related fields of inquiry.

The film-based KH-9 satellites were officially declared “obsolete” by the
Director of National Intelligence in 2011. The KH-9 imagery was nominally
approved for declassification in February 2012, and then it was finally
declassified in fact this year.

ODNI spokesman Michael Birmingham said that approximately 97 percent of
the satellite imagery that was collected from the 19 successful KH-9
missions was formally declassified by DNI James R. Clapper on January 11,
2013.

“The small amount of imagery exempted from this declassification decision
will be removed prior to its accession to the National Archives (NARA) and
will remain classified pursuant to statute and national security interests,
and reviewed periodically to determine if additional declassification is
warranted,” Mr. Birmingham said last week.

The imagery is being transferred to NARA in stages, with final delivery
scheduled for September 2013, he said.

The transfer is being implemented pursuant to a November 2012 Memorandum
of Agreement between the National Geospatial-Intelligence Agency (NGA) and
the National Archives, under which the Archives is “responsible for
providing public access to the declassified imagery.”

Click to access kh9-moa.pdf

Reishia R. Kelsey of NGA public affairs confirmed that the imagery “will
be made available to the public following its accession to NARA” later this
year.

The National Archives was not prepared last week to set a precise date for
public release. But an Archives official said that “NARA intends to make
these records available to the public at our research room in College Park,
MD as soon as possible following transfer.”

If successfully executed, the release of the KH-9 imagery will constitute
a breakthrough in the declassification and disclosure of national security
information. It will be one of several discrete but momentous shifts in
secrecy policy during the Obama Administration that have often gone
unrecognized or unappreciated. Though these declassification actions took
years or decades to accomplish, they have been downplayed by the White
House itself, which has seemed curiously ambivalent about them. They
include the public disclosure of the size of the U.S. nuclear weapons
arsenal, the routine publication of the annual intelligence budget request,
the release of the Office of Legal Counsel “torture memos,” the
declassification of the KH-9 satellite itself, and others.

The KH-9 imagery is being processed for public release pursuant to the
1995 Executive Order 12951 on “Release of Imagery Acquired by Space-based
National Intelligence Reconnaissance Systems.” That order had been
effectively dormant since the Clinton Administration, when the last major
release of intelligence satellite imagery (from the CORONA, ARGON and
LANYARD missions) took place.

The declassification of the KH-9 imagery is a massive undertaking, Mr.
Birmingham of ODNI said last year.

“For context, and to grasp the scope of the project, the KH-9/HEXAGON
system provided coverage over hundreds of millions of square miles of
territory during its 19 successful missions spanning 1971-1984,” he said.
“It is a daunting issue to address declassification of the program
specifics associated with an obsolete system such as the KH-9, which
involves the declassification of huge volumes of intelligence information
gathered on thousands of targets worldwide during a 13 year time period.”

http://blogs.fas.org/secrecy/2012/10/hexagon_imagery/

MILITARY PHOTOGRAPHERS READY TO DEPLOY AROUND THE GLOBE

Just as law enforcement relied upon surveillance cameras and personal
photography to enable the prompt identification of the perpetrators of the
Boston Marathon bombing, U.S. armed forces increasingly look to the
collection of still and motion imagery to support military operations.

Combat camera (COMCAM) capabilities support “operational planning, public
affairs, information operations, mission assessment, forensic, legal,
intelligence and other requirements during crises, contingencies, and
exercises around the globe,” according to newly updated military doctrine.

COMCAM personnel are “highly trained visual information professionals
prepared to deploy to the most austere operational environments at a
moment’s notice.”

COMCAM units “are adaptive and provide fully qualified and equipped
personnel to support sustained day or night operations” in-flight, on the
ground or undersea, as needed.

“Effectively employed COMCAM assets at the tactical level can potentially
achieve national, theater strategic, and operational level objectives in a
manner that lessens the requirement for combat in many situations,” the new
doctrine says. “Their products can counter adversary misinformation,
disinformation, and propaganda and help commanders gain situational
awareness on operations in a way written or verbal reports cannot.”

“The products can also provide historical documentation, public
information, or an evidentiary foundation… for forensic documentation of
evidence and legal proceedings. They can provide intelligence documentation
to include imagery for facial recognition and key leader engagements, and
support special reconnaissance.”

The newly issued COMCAM doctrine supersedes previous guidance from 2007.
See Combat Camera: Multi-Service Tactics, Techniques, and Procedures for
Combat Camera (COMCAM) Operations, April 2013.

Click to access atp3-55-12.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood

SECRECY NEWS – NEXT STEPS IN NUCLEAR ARMS CONTROL, AND MORE FROM CRS

Negotiating a treaty to reduce nuclear weapons is so cumbersome and
fraught with political minefields that it can actually retard the process
of disarmament. “It usually takes far longer to reduce nuclear forces
through a bilateral arms control treaty than it takes to adopt unilateral
adjustments to nuclear forces,” according to a new report from the
Congressional Research Service.

“If the Obama Administration reduces U.S. nuclear forces in parallel with
Russia, but without a formal treaty, the two nations could avoid months or
years in negotiation,” the CRS report says. See “Next Steps in Nuclear Arms
Control with Russia: Issues for Congress,” April 10, 2013:

Click to access R43037.pdf

“Recent data… challenge the belief that the [U.S.] manufacturing sector,
taken as a whole, will continue to flourish,” says a newly updated CRS
report. “One interpretation of these data is that manufacturing is
‘hollowing out’ as companies undertake a larger proportion of their
high-value work abroad. These developments raise the question of whether
the United States will continue to generate highly skilled, high-wage jobs
related to advanced manufacturing.” See “‘Hollowing Out’ in U.S.
Manufacturing: Analysis and Issues for Congress,” April 15, 2013:

Click to access R41712.pdf

A rich compilation of information about discretionary government spending
was presented in “Trends in Discretionary Spending,” April 15, 2013:

Click to access RL34424.pdf

Some other new or newly updated CRS reports that Congress has not made
publicly available include the following.

Federal Authority to Regulate the Compounding of Human Drugs, April 12,
2013:

Click to access R43038.pdf

Federal Traffic Safety Programs: An Overview, April 1, 2013:

Click to access R43026.pdf

The STOCK Act, Insider Trading, and Public Financial Reporting by Federal
Officials, April 12, 2013:

Click to access R42495.pdf

International Trade and Finance: Key Policy Issues for the 113th Congress,
April 15, 2013:

Click to access R41553.pdf

Why Certain Trade Agreements Are Approved as Congressional-Executive
Agreements Rather Than as Treaties, April 15, 2013:

Click to access 97-896.pdf

The United Kingdom and U.S.-UK Relations, April 15, 2013:

Click to access RL33105.pdf

A FRESH LOOK AT INVENTION SECRECY

The Invention Secrecy Act of 1951 has been used for more than half a
century to restrict disclosure of patent applications that could be
“detrimental to national security.” At the end of the last fiscal year, no
fewer than 5,321 secrecy orders were in effect.

http://www.fas.org/sgp/othergov/invention/index.html

These secrecy orders have been difficult to penetrate and the stories
behind them have usually been left untold. But several inventors whose
work prompted imposition of a secrecy order were interviewed by G.W. Schulz
of the Center for Investigative Reporting. See his new account in
“Government secrecy orders on patents keep lid on inventions,” April 16,
2013.

http://cironline.org/reports/

JOURNAL OF NATIONAL SECURITY LAW & POLICY

The latest issue of the Journal of National Security Law & Policy has just
been published and can be found online here:

http://jnslp.com/

Titles of likely interest include “Free Speech Aboard the Leaky Ship of
State: Calibrating First Amendment Protections for Leakers of Classified
Information” by Heidi Kitrosser, and “Unknotting the Tangled Threads of
Watergate Lore,” a review of Max Holland’s book “Leak” written by M.E.
(Spike) Bowman, among others.

DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES

In last Friday’s Federal Register the Department of Defense published a
final rule on “Defense Support of Civilian Law Enforcement Agencies.” The
rule specifies and defines the support that DoD may provide to federal,
state and local law enforcement agencies, “including responses to civil
disturbances.”

http://www.fas.org/sgp/news/2013/04/dsclea.html

“The President is authorized by the Constitution and laws of the United
States to employ the Armed Forces of the United States to suppress
insurrections, rebellions, and domestic violence under various conditions
and circumstances,” the new rule states.

“Planning and preparedness by the Federal Government, including the
Department of Defense, for civil disturbances is important due to the
potential severity of the consequences of such events for the Nation and
the population. The employment of Federal military forces to control civil
disturbances shall only occur in a specified civil jurisdiction under
specific circumstances as authorized by the President, normally through
issuance of an Executive order or other Presidential directive authorizing
and directing the Secretary of Defense to provide for the restoration of
law and order in a specific State or locality.”

The new rule, which forms part of the Code of Federal Regulations, is
almost identical to DoD Instruction 3025.21 on “Defense Support of Civilian
Law Enforcement Agencies” that was issued on February 27, 2013 (noted by
PublicIntelligence.net on April 11).

Click to access i3025_21.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood

SECRECY NEWS – NUMBER OF SECURITY CLEARED PERSONNEL GREW IN 2012

The number of people who are cleared for access to classified information
continued to rise in 2012 to more than 4.9 million, according to a new
annual report from the Office of the Director of National Intelligence.
This is only the third official tally of government-wide security clearance
activity ever prepared, and it is the largest reported to date.

Click to access clear-2012.pdf

The total number of cleared personnel as of October 1, 2012 was 4,917,751.
Although the number of contractors who held a clearance declined in 2012,
the number of eligible government employees grew at a faster rate, yielding
a net increase of 54,199 clearances, or 1.1 percent, from the year before.

It is possible that there were more security-cleared Americans at some
points during the Cold War, when there was a larger standing military with
more cleared military personnel than there are today. But until 2010, no
comprehensive account of the size of the security clearance system had ever
been produced. So the new 4.9 million figure is the largest official
figure ever published.

A 2009 report from the Government Accountability Office had estimated that
2.4 million people held clearances, excluding some intelligence agency
employees. But even allowing for one or two hundred thousand cleared
intelligence personnel, this turned out to underestimate the case by nearly
50%. A 1995 GAO report presented an estimate of 3.2 million persons as of
1993.

http://www.fas.org/blog/secrecy/2009/07/security_clearances.html

(Strictly speaking, the new ODNI report does not present data on the
number of clearances but rather on the number of people who have been
investigated and deemed “eligible” for a clearance, regardless of whether
or not they have been granted access to classified information in fact. In
addition to a security clearance, an individual is also supposed to have a
“need to know” particular classified information in order to gain access to
it.)

During 2012, the CIA denied 4.9% of the clearance applications that it
reviewed, the report indicated, while NRO denied 5.9% and NSA denied 5.7%.
Several of the intelligence agencies reported that they had individual
security clearance investigations that had remained open in excess of one
year.

“The IC faces challenges in clearing individuals with unique or critical
skills — such as highly desirable language abilities — who often have
significant foreign associations that may take additional time to
investigate and adjudicate,” the new report said.

The report notes that it was prepared in fulfillment of a requirement in
the 2010 intelligence authorization act. It does not mention the fact that
the DNI asked Congress to cancel that requirement last year.

The DNI’s request to eliminate the report was initially approved by the
Senate Intelligence Committee (as first noted by Marcy Wheeler of the
Emptywheel blog). But then several public interest groups wrote to ask the
House and Senate Intelligence Committees to preserve the annual reporting
requirement, arguing that it provided unique public insight into the size
and operation of the security clearance system. The Committees concurred,
and the reporting requirement was retained.

Click to access clearance_rpt.pdf

In the absence of similar public attention and intervention, another
intelligence community report to Congress on proliferation of weapons of
mass destruction was discontinued at the DNI’s request, to the dismay of
students of arms control.

http://lewis.armscontrolwonk.com/archive/6511/no-more-721-reports

A pending change to the security clearance process is intended to
encourage mental health counseling, but some say it may generate new
confusion, reported Josh Gerstein in Politico today.

U.S. AID TO PAKISTAN, AND MORE FROM CRS

Some lightly updated reports produced lately by the Congressional Research
Service include the following.

Direct Overt U.S. Aid Appropriations for and Military Reimbursements to
Pakistan, FY2002-FY2014, April 11, 2013:

Click to access pakaid.pdf

Sensitive Covert Action Notifications: Oversight Options for Congress,
April 10, 2013:

Click to access R40691.pdf

Covert Action: Legislative Background and Possible Policy Questions, April
10, 2013:

Click to access RL33715.pdf

Navy Ship Names: Background For Congress, April 8, 2013:

Click to access RS22478.pdf

Navy Littoral Combat Ship (LCS) Program: Background and Issues for
Congress, April 5, 2013:

Click to access RL33741.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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Support the FAS Project on Government Secrecy with a donation:
http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood

SECRECY NEWS – INTELLIGENCE BUDGET REQUESTS FOR 2014 DISCLOSED

Nebukadnezar99Some $4 billion is being cut from the National Intelligence Program this
year as a result of sequestration, Director of National Intelligence James
Clapper told the House Intelligence Committee at a hearing today. He said
that the consequences will be severe. Acquisition programs will be
“wounded,” ongoing programs will have to be curtailed, and the ensuing
degradation of intelligence capabilities will be “insidious” with
unforeseeable effects, he said.

Meanwhile, the Office of the Director of National Intelligence disclosed
yesterday that the FY 2014 budget request for the National Intelligence
Program (NIP) is $48.2 billion. However, this figure excludes the pending
funding request for Overseas Contingency Operations (OCO), so it cannot be
directly compared to previous budget allocations, such as the $53.9 billion
that was appropriated in FY 2012, or the $52.6 billion that was requested
for FY 2013.

Click to access nip-2014.pdf

The Secretary of Defense also disclosed the FY 2014 budget request for the
Military Intelligence Program (MIP) yesterday, which was $14.6 billion. It
also did not include the funding request for Overseas Contingency
Operations. This is a slight decline from the $14.7 billion base request
for the MIP last year. (An additional $4.5 billion was known to have been
requested for OCO in the past fiscal year.)

http://www.fas.org/irp/news/2013/04/mip-2014.html

Total intelligence spending (NIP plus MIP) peaked in Fiscal Year 2010, and
has been on a downward slope since then. Intelligence budget disclosures
from the last several years are tabulated here:

http://www.fas.org/irp/budget/index.html

The NIP intelligence budget request was publicly disclosed for the first
time in February 2011, in response to a requirement enacted by Congress in
the FY 2010 intelligence authorization act. The MIP intelligence budget
request was disclosed for the first time in February 2012, even though
there was no specific statutory requirement to do so.

FOREIGN OWNERSHIP OF U.S. FINANCIAL ASSETS, AND MORE FROM CRS

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

Foreign Ownership of U.S. Financial Assets: Implications of a Withdrawal,
April 8, 2013:

Click to access RL34319.pdf

Foreign Investment and National Security: Economic Considerations, April
4, 2013:

Click to access RL34561.pdf

Financial Market Supervision: Canada’s Perspective, April 4, 2013:

Click to access R40687.pdf

The European Union: Foreign and Security Policy, April 8, 2013:

Click to access R41959.pdf

The Berne Union: An Overview, April 5, 2013:

Click to access RS22319.pdf

Japan’s Possible Entry Into the Trans-Pacific Partnership and Its
Implications, April 8, 2013:

Click to access R42676.pdf

El Salvador: Political and Economic Conditions and U.S. Relations, April
5, 2013:

Click to access RS21655.pdf

Latin America: Terrorism Issues, April 5, 2013:

Click to access RS21049.pdf

U.S. Policy Towards Burma: Issues for the 113th Congress, March 12, 2013:

Click to access R43035.pdf

Congressional Authority to Regulate Firearms: A Legal Overview, April 5,
2013:

Click to access R43033.pdf

Procedural Analysis of Private Laws Enacted: 1986-2013, April 9, 2013:

Click to access RS22450.pdf

U.S. Natural Gas Exports: New Opportunities, Uncertain Outcomes, April 8,
2013:

Click to access R42074.pdf

Fluoride in Drinking Water: A Review of Fluoridation and Regulation
Issues, April 5, 2013:

Click to access RL33280.pdf

State Legalization of Recreational Marijuana: Selected Legal Issues, April
5, 2013:

Click to access R43034.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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Support the FAS Project on Government Secrecy with a donation:
http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: http://www.fas.org/sgp/index.html
email: saftergood@fas.org
voice: (202) 454-4691
twitter: @saftergood

SECRECY NEWS – PENTAGON MANUAL URGES PRECISION IN CLASSIFYING INFORMATION

The Department of Defense is not particularly concerned with "openness" in
the abstract, but it is strongly motivated to conserve resources and reduce
discretionary expenditures.  That imperative dictates the discriminating
use of national security secrecy -- at least in theory -- because of the
costs incurred by classification.

"Precise classification guidance is prerequisite to effective and
efficient information security and assures that security resources are
expended to protect only that which truly warrants protection in the
interests of national security," according to a newly reissued Department
of Defense manual that provides "Instructions for Developing Security
Classification Guides" (DoD Manual 5200.45, April 2, 2013).

    http://www.fas.org/sgp/othergov/dod/m5200_45.pdf

The Manual presents a framework for classifying information, beginning
with a series of questions for determining whether information is eligible
for classification in the first place.  ("Can the unauthorized disclosure
of the information reasonably be expected to cause identifiable or
describable damage to the national security? If the answer is no, the
information cannot be classified.")

Then it details the considerations that may arise in the classification of
information concerning military hardware, military operations, intelligence
and foreign relations.  Exactly which aspects of a hardware system provide
the U.S. with a technological advantage?  Precisely which operational
information requires protection in order for the operation to succeed?

The Manual discourages broad, sweeping classification of information. 
Through an extended questionnaire for classifiers, it seeks "to
systematically bound and refine the scope of the analysis needed to
determine which items warrant protection through security classification."

As detailed and helpful as this guidance is, it cannot decisively resolve
all classification questions in advance.  "The outcomes specified in the
flow chart are not absolute; judgment must be applied in all cases," the
Manual says.

Some decisions regarding what to classify are easy.  Information about "a
foreign official speaking in a highly critical manner of his own
government's policy" or "suggesting how pressure might effectively be
brought to bear on another part of his own government" would typically be
classified.  Likewise, the fact of ongoing intelligence cooperation between
the United States and a country "with which the United States is not allied
should always be classified." Also, "intelligence identifying a sensitive
source or method should always be classified."

On the other hand, the Manual says, classification can be dispensed with
in certain areas.  "Intelligence that reveals the identity of a
conventional source or method [i.e., one that is not "sensitive"] normally
does not require classification."  

And "in general, [intelligence budget] resource information should not be
classified unless it reveals some aspect of the intelligence mission, and
its revelation would jeopardize the effectiveness of a particular function.
An example of classifiable resource information is the intelligence
contingency fund."

At this point, the realization will dawn on some readers that this Manual,
which was originally issued in 1999, does not accurately describe -- or
effectively regulate -- DoD classification policy.

It is simply not the case that "in general, resource information [is] not
classified unless it reveals some aspect of the intelligence mission."  To
the contrary, the Department's default position is that intelligence
resource information is classified.  That is why the individual budget
total of each DoD intelligence agency -- and not simply intelligence
contingency funds -- is not disclosed.  And beyond the total budget for the
Military Intelligence Program (MIP), "no other MIP budget figures... will
be released," DoD said last October 30, "as they remain classified for
national security reasons."

Nor does the Pentagon clearly distinguish between sensitive intelligence
sources and methods, which are classified, and "conventional" intelligence
sources and methods, which are not.  Doing so sounds like a good idea, but
it is hard to detect any sign of it in Pentagon practice.

The Manual notes that all classification guidance should be reviewed at
least every five years by the original classification authority that issued
it.  But it fails to mention that all guidance is also subject to a broader
periodic assessment known as the Fundamental Classification Guidance
Review.  It is through such a broader review that changes in classification
policy are more likely to come about.

PROSECUTORS REBUT DEFENDANT'S CHALLENGE TO ESPIONAGE ACT STATUTE

Last month, attorneys for Navy linguist James Hitselberger, who was
charged under the Espionage Act with unlawful retention of classified
documents, filed a motion arguing that the Espionage Act is
unconstitutionally vague and unenforceable.  Last week, prosecutors replied
and said that's not so.

"Prosecuting Mr. Hitselberger under this statute violates the fair notice
requirements of the Due Process clause because multiple terms contained in
[the statute] are so vague that they fail to provide him with notice of
what conduct is criminal and what conduct is not," Hitselberger's public
defenders wrote in their March 1 motion.

    http://www.fas.org/sgp/jud/hitsel/030113-vague.pdf

Last Friday, prosecutors rebutted the defense motion, which they said was
without merit.  "Every court that has considered similar challenges to [the
Espionage Act statutes] has rejected them and found the provisions to pass
constitutional muster," they wrote.

    http://www.fas.org/sgp/jud/hitsel/040513-govopp.pdf

The prosecutors cited rulings from past and present prosecutions involving
charges under the espionage statutes to bolster their argument  --
including those of State Department contractor Stephen Kim, former NSA
official Thomas Drake, former CIA officer John Kiriakou, and former naval
intelligence analyst Samuel L. Morison.  Like Hitselberger, none of those
individuals was accused or suspected of espionage on behalf of a foreign
power, but rather of unlawfully retaining or disclosing national defense
information.

"Recently, the defendant in Drake made the same faulty argument as
Hitselberger makes here," prosecutors wrote. "The district court rejected
the defendant's claim that the term willfulness is unconstitutionally
vague."

"Although Hitselberger admittedly was not a career intelligence
professional, he has more in common with defendants such as Morison,
Kiriakou, and Kim than he lets on," the prosecutors asserted.  It was not
meant as a compliment.

Prosecutors filed additional responses to several other pre-trial defense
motions to suppress evidence, to require a bill of particulars, to
eliminate "multiplicious" charges, and to find sections of the Classified
Information Procedures Act unconstitutional.

    http://www.fas.org/sgp/jud/hitsel/index.html

NORTH KOREAN NUKES, DOMESTIC DRONES, AND MORE FROM CRS

An updated summary of open source reporting on the North Korean nuclear
weapons program was produced this week by the Congressional Research
Service.  See North Korea's Nuclear Weapons: Technical Issues, April 3,
2013:

        http://www.fas.org/sgp/crs/nuke/RL34256.pdf

Other new or newly updated CRS reports include the following.

Integration of Drones into Domestic Airspace: Selected Legal Issues, April
4, 2013:

        http://www.fas.org/sgp/crs/natsec/R42940.pdf

Drones in Domestic Surveillance Operations: Fourth Amendment Implications
and Legislative Responses, April 3, 2013:

        http://www.fas.org/sgp/crs/natsec/R42701.pdf

Super PACs in Federal Elections: Overview and Issues for Congress, April
4, 2013:

        http://www.fas.org/sgp/crs/misc/R42042.pdf

"Amazon" Laws and Taxation of Internet Sales: Constitutional Analysis,
April 3, 2013:

        http://www.fas.org/sgp/crs/misc/R42629.pdf

FutureGen: A Brief History and Issues for Congress, April 3, 2013:

        http://www.fas.org/sgp/crs/misc/R43028.pdf

Congressional Redistricting and the Voting Rights Act: A Legal Overview,
April 2, 2013:

        http://www.fas.org/sgp/crs/misc/R42482.pdf

The Temporary Assistance for Needy Families (TANF) Block Grant: A Primer
on TANF Financing and Federal Requirements, April 2, 2013:

        http://www.fas.org/sgp/crs/misc/RL32748.pdf

The Recess Appointment Power After Noel Canning v. NLRB: Constitutional
Implications, March 27, 2013:

        http://www.fas.org/sgp/crs/misc/R43030.pdf

Overview of Health Care Changes in the FY2014 Budget Proposal Offered by
House Budget Committee Chairman Ryan, March 22, 2013:

        http://www.fas.org/sgp/crs/misc/R43017.pdf

Cuba: U.S. Policy and Issues for the 113th Congress, March 29, 2013:

        http://www.fas.org/sgp/crs/row/R43024.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – DEFENSE DOCTRINE OFFERS INSIGHT INTO MILITARY OPERATIONS

"Reconnaissance assets, like artillery assets, are never kept in reserve,"
according to U.S. Army doctrine.

In other words, whatever means you may have to gather information about
the activities and capabilities of an adversary should be fully deployed,
not held back.

"Reconnaissance units report exactly what they see and, if appropriate,
what they do not see.... Reports of no enemy activity are as important as
reports of enemy activity. Failing to report tells the commander nothing."

That bit of practical wisdom, which may indeed be relevant beyond the
battlefield, is contained in a new Army field manual on the subject. See
"Reconnaissance, Security, and Tactical Enabling Tasks," Volume 2, Field
Manual 3-90.2, March 2013:

        http://www.fas.org/irp/doddir/army/fm3-90-2.pdf

It is a companion to "Offense and Defense," Volume 1, Field Manual 3-90.1,
March 2013:

        http://www.fas.org/irp/doddir/army/fm3-90-1.pdf

The vast corpus of U.S. military doctrine offers a point of entry into
military thought that may be of interest even -- or especially -- to a
reader who is not a member of "the profession of arms." Some noteworthy
doctrinal publications that have recently been published or updated are
cited below.  While they have a tendency to be jargon heavy and pedestrian,
they are never frivolous or less than professional. Occasionally they offer
impressive subtlety and sophistication or unexpected literary merit.

The distinctive vocabulary of military affairs is presented with
authoritative definitions in a 500-page "Department of Defense Dictionary
of Military and Associated Terms," Joint Publication 1-02, updated March
15, 2013:

        http://www.fas.org/irp/doddir/dod/jp1_02.pdf

The conceptual framework of the U.S. military is outlined in Joint
Publication 1, "Doctrine for the Armed Forces of the United States,"
reissued on March 25.  It "provides overarching guidance and fundamental
principles" for the employment of the U.S. military. "War is socially
sanctioned violence to achieve a political purpose," it explains. "The
basic nature of war is immutable, although warfare evolves constantly."

        http://www.fas.org/irp/doddir/dod/jp1.pdf

The various functions of the military in humanitarian assistance are
elaborated in "Multi-Service Techniques for Civil Affairs Support to
Foreign Humanitarian Assistance," ATP 3-57.20, February 2013:

        http://www.fas.org/irp/doddir/army/atp3-57-20.pdf

A reference guide for initial assessment and response to an accidental or
deliberate release of biological pathogens, radioactive material or other
hazardous substances is given in "Multi-Service Tactics, Techniques, and
Procedures for Chemical, Biological, Radiological, and Nuclear
Reconnaissance and Surveillance," ATP 3-11.37, March 2013:

        http://www.fas.org/irp/doddir/army/atp3-11-37.pdf

The potential use of biological agents in war and the diagnosis and
treatment of the resulting casualties are described in "Multi-Service
Tactics, Techniques and Procedures for Treatment of Biological Warfare
Casualties," ATP 4-02.84, March 2013:

        http://www.fas.org/irp/doddir/army/atp4-02-84.pdf

The intersection of law and Army operations is delineated in "Legal
Support to the Operational Army," Field Manual 1-04, updated March 2013:

        http://www.fas.org/irp/doddir/army/fm1-04.pdf

SENATE REPUBS LEAD CONGRESSIONAL USE OF TWITTER, CRS SAYS

Senate Republicans are the most prolific users of Twitter in Congress,
tweeting an average of 1.53 Tweets per day, according to a new report from
the Congressional Research Service.  They were followed by Senate Democrats
(1.49 Tweets on average), House Republicans (1.23), and House Democrats
(1.09).

Senate Republicans were also the most frequent posters on Facebook, with
an average of 0.84 posts per day.

"In 2012, 56% of Twitter-registered Members were Republican and 44% were
Democrats," reported the CRS study, which was performed with the LBJ School
of Public Affairs at the University of Texas in Austin.

Twitter and Facebook "allow Members to communicate directly with
constituents (and others) in a potentially interactive way that is not
possible through mail or e-mail. For Members and their staff, the ability
to collect and transmit real time information to and from constituents
could be influential for issue prioritization, policy decisions, or voting
behavior," CRS said.

However, the new study does not present any data to show that Twitter or
Facebook are actually being used interactively, i.e. that Members are
consistently reading or responding to incoming messages from constituents
or others.  See "Social Networking and Constituent Communications: Members'
Use of Twitter and Facebook During a Two-Month Period in the 112th
Congress," March 22, 2013:

        http://www.fas.org/sgp/crs/misc/R43018.pdf

Some other new reports from the Congressional Research Service include the
following.

Argentina's Post-Crisis Economic Reform: Challenges for U.S. Policy, March
26, 2013:

        http://www.fas.org/sgp/crs/row/R43022.pdf

Proposed Cuts to Air Traffic Control Towers Under Budget Sequestration:
Background and Considerations for Congress, March 26, 2013:

        http://www.fas.org/sgp/crs/misc/R43021.pdf

Administrative Agencies and Claims of Unreasonable Delay: Analysis of
Court Treatment, March 21, 2013:

        http://www.fas.org/sgp/crs/misc/R43013.pdf

U.S. and World Coal Production, Federal Taxes, and Incentives, March 14,
2013:

        http://www.fas.org/sgp/crs/misc/R43011.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – A LOOK BACK AT CONGRESSIONAL OVERSIGHT OF INTELLIGENCE, 2011-2012

Several nuggets of interest are presented in the latest biennial report
from the Senate Select Committee on Intelligence, summarizing the
Committee's oversight activities in the 112th Congress:

        http://www.fas.org/irp/congress/2013_rpt/srpt113-7.html

*        The Director of National Intelligence abruptly cancelled a multi-year
effort to establish a single consolidated data center for the entire
Intelligence Community a year or so ago, in favor of a migration to cloud
computing.

*        Under criticism that the number of intelligence contractor personnel has
grown too high, too fast, intelligence agencies have been cutting the
number of contractors they employ or converting contractors to government
employees.  But some of those agencies have continued to hire additional
contractors at the same time, resulting in net growth in the size of the
intelligence contractor workforce.

*        A written report on each covert action that is being carried out under a
presidential finding is provided to the congressional committees every
quarter.

The March 22 report also provides some fresh details of the long-awaited
and still unreleased Committee study on CIA's detention and interrogation
program.  That 6,000 page study, which was completed in July 2012 and
approved by the Committee in December 2012, is divided into three volumes,
as described in the report:

"I. History and Operation of the CIA's Detention and Interrogation
Program. This volume is divided chronologically into sections addressing
the establishment, development, and evolution of the CIA detention and
interrogation program."

"II. Intelligence Acquired and CIA Representations on the Effectiveness of
the CIA's Enhanced Interrogation Techniques. This volume addresses the
intelligence attributed to CIA detainees and the use of the CIA's enhanced
interrogation techniques, specifically focusing on CIA representations on
how the CIA detention and interrogation program was operated and managed,
as well as the effectiveness of the interrogation program. It includes
sections on CIA representations to the Congress, the Department of Justice,
and the media."

"III. Detention and Interrogation of Detainees. This volume addresses the
detention and interrogation of all known CIA detainees, from the program's
inception to its official end, on January 22, 2009, to include information
on their capture, detention, interrogation, and conditions of confinement.
It also includes extensive information on the CIA's management, oversight,
and day-to-day operation of the CIA's detention and interrogation program,"
according to the report's description.

"I have read the first volume, which is 300 pages," said CIA Director John
O. Brennan at his February 7 confirmation hearing.  "There clearly were a
number of things, many things, that I read in that report that were very
concerning and disturbing to me, and ones that I would want to look into
immediately, if I were to be confirmed as CIA Director."

"It talked about mismanagement of the program, misrepresentations of the
information, providing inaccurate information," Mr. Brennan said then. "And
it was rather damning in a lot of its language, as far as the nature of
these activities that were carried out."

The Committee said it is awaiting comments on the study from the White
House, the CIA and other executive branch agencies, and that it will then
"discuss the public release of the Study."

On February 15, 2013, Republicans who were members of the Committee in the
last Congress formally filed dissenting comments opposing the study and its
conclusions, the report said.

For its first couple of decades, the Senate Intelligence Committee held
that "even secret activities must be as accountable to the public as
possible," as Sen. Daniel Inouye stated in the Committee's first biennial
report in 1977, and that "as much information as possible about
intelligence activities should be made available to the public," as
Senators Richard Shelby and Bob Kerrey wrote in the 1999 version of the
report.

But in the past decade, the Committee seems to have reconceptualized its
relationship with the public.  It no longer promises to make "as much
information as possible about intelligence activities" available to the
public.  The notion that "secret activities" could be "accountable to the
public" is now evidently considered a contradiction in terms (although
release of the report on CIA interrogation practices, if it ever came to
pass, would nullify and transcend that contradiction).  

Today, as the latest report states, the Committee aims merely "to provide
as much information as possible to the American public about its
intelligence oversight activities."  (Intelligence Oversight Steps Back
from Public Accountability, Secrecy News, January 2, 2013).

Even within the narrowed horizons to which it has limited itself, however,
the report presents a rather attenuated, "skim milk" account of the
Committee's work. Judging from the new report, intelligence oversight
consists of frequent briefings, followed by numerous "evaluations" and
"reviews."

The report provides no indication of any conflict between the Committee
and the intelligence agencies. Consequently, there are no significant
victories (though the successful passage of four consecutive intelligence
authorization bills is a notable achievement), and no meaningful defeats.

At the Brennan confirmation hearing on February 7, Committee chair Sen.
Dianne Feinstein said: "I have been calling, and others have been
calling--the Vice Chairman and I--for increased transparency on the use of
targeted force for over a year, including the circumstances in which such
force is directed against U.S. citizens and noncitizens alike."  And to its
credit, the Committee conscientiously posed a pre-hearing question on
classification reform to Mr. Brennan (which he deflected).

But the new report does not identify any such effort by Committee
leadership to promote increased transparency on targeted killing during the
past Congress.  It does not reference the failure to accomplish the
declassification of Foreign Intelligence Surveillance Court opinions, as
the Committee had been promised in 2011.  Nor does the report address the
abuse of classification authority or cite what the President called "the
problem of overclassification" at all.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – DOD INSPECTOR GENERAL HAS UNRESTRICTED ACCESS TO CLASSIFIED INFO

A Department of Defense instruction issued on Friday reinforces the policy
that the DoD Office of Inspector General (OIG) is to have full access to
all records, including classified records, that it needs to perform its
function, and that no DoD official other than the Secretary himself may
block such access.

"The OIG must have expeditious and unrestricted access to all records...,
regardless of classification, medium (e.g. paper, electronic) or format
(e.g., digitized images, data) and information available to or within any
DoD Component, and be able to obtain copies of all records and information
as required for its official use once appropriate security clearances and
access are substantiated for the OIG DoD personnel involved," the
instruction states.

See "Office of the Inspector General of the Department of Defense Access
to Records and Information," DoD Instruction 7050.03, March 22, 2013:

        http://www.fas.org/irp/doddir/dod/i7050_03.pdf

By stressing that the Inspector General's access is independent of a
record's classification, medium or format, this language elaborates and
bolsters the text of a previous version of the instruction, which did not
make those distinctions.

        http://www.fas.org/irp/doddir/dod/i7050_03-2000.pdf

Furthermore, the new instruction specifies, "No officer, employee,
contractor, or Service member of any DoD Component may deny the OIG DoD
access to records."  Only the Secretary of Defense may invoke a statutory
exemption to limit IG access to certain intelligence, counterintelligence,
or other sensitive matters, which he must then justify in a report to
Congress.

As a result these robust access provisions, the DoD Inspector General is
well-positioned to conduct internal oversight not only of the Pentagon's
extensive classified programs, but also of the classification system
itself, particularly since the Department of Defense is the most prolific
classifier in the U.S. government.

In fact, the Inspector General of each executive branch agency that
classifies national security information is now required by the Reducing
Over-Classification Act of 2010 to evaluate the agency's classification
program.  Each Inspector General was directed "to identify policies,
procedures, rules, regulations, or management practices that may be
contributing to persistent misclassification of material."

        http://www.gpo.gov/fdsys/pkg/PLAW-111publ258/pdf/PLAW-111publ258.pdf

The first evaluation is due to be completed by September 30, 2013. 
Vexingly, the Act did not provide a functional definition of
"over-classification" or "misclassification."  Therefore, the first hurdle
that the IG evaluations must overcome is to determine the nature and the
parameters of the problem of over-classification.

PRIVACY AND CLOUD COMPUTING, AND MORE FROM CRS

New and updated products from the Congressional Research Service that
Congress has not made readily available to the public include the
following.

Cloud Computing: Constitutional and Statutory Privacy Protections, March
22, 2013:

        http://www.fas.org/sgp/crs/misc/R43015.pdf

The National Broadband Plan Goals: Where Do We Stand?, March 19, 2013:

        http://www.fas.org/sgp/crs/misc/R43016.pdf

U.S. Customs and Border Protection: Trade Facilitation, Enforcement, and
Security, March 22, 2013:

        http://www.fas.org/sgp/crs/homesec/R43014.pdf

Itemized Tax Deductions for Individuals: Data Analysis, March 21, 2013:

        http://www.fas.org/sgp/crs/misc/R43012.pdf

International Monetary Fund: Background and Issues for Congress, March 21,
2013:

        http://www.fas.org/sgp/crs/misc/R42019.pdf

China Naval Modernization: Implications for U.S. Navy Capabilities --
Background and Issues for Congress, March 21, 2013:

        http://www.fas.org/sgp/crs/row/RL33153.pdf

Former Presidents: Pensions, Office Allowances, and Other Federal
Benefits, March 21, 2013:

        http://www.fas.org/sgp/crs/misc/RL34631.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – NASA Technical Reports Database Goes Dark

This week NASA abruptly took the massive NASA Technical Reports Server (NTRS) offline.  Though no explanation for the removal was offered, it appeared to be in response to concerns that export controlled information was contained in the collection.

“Until further notice, the NTRS system will be unavailable for public access. We apologize for any inconvenience this may cause you and anticipate that this site will return to service in the near future,” the NTRS homepagenow states.

NASA Public Affairs did not respond yesterday to an inquiry about the status of the site, the reason for its suspension, or the timeline for its return.

NASA Watch and The Unwanted Blog linked the move to a statement from Rep. Frank Wolf on Monday concerning alleged security violations at NASA Langley Research Center.

“NASA should immediately take down all publicly available technical data sources until all documents that have not been subjected to export control review have received such a review and all controlled documents are removed from the system,” Rep. Wolf said.

In other words, all NASA technical documents, no matter how voluminous and valuable they are, should cease to be publicly available in order to prevent the continued disclosure of any restricted documents, no matter how limited or insignificant they may be.

“There is a HUGE amount of material on NTRS,” said space policy analyst Dwayne Day. “If NASA is forced to review it all, it will never go back online.”

Essentially, the mindset represented by Rep. Wolf and embraced by NASA fears the consequences of unauthorized disclosure more than it values the benefits of openness.  It is a familiar outlook that has wreaked havoc with the nation’s historical declassification program, and has periodically disrupted routine access to record collections at the National Archives, as well as online collections at the CIA, the Los Alamos technical report library, and elsewhere.

“I’d also note that a large amount of historical Mercury/Gemini/Apollo documents that were previously available at NARA Fort Worth is now apparently withdrawn due to ITAR [export controls],” said Dr. Day.

The upshot is that the government is not an altogether reliable repository of official records. Members of the public who depend on access to such records should endeavor to make and preserve their own copies whenever possible.

SECRECY NEWS – CLASSIFICATION COMPLAINT ARISING FROM THOMAS DRAKE CASE DISMISSED

In July 2011, J. William Leonard, a former director of the Information
Security Oversight Office (ISOO), took the extraordinary step of filing a
formal complaint with the Office he once led charging that a document used
to indict former NSA official Thomas Drake under the Espionage Act had been
wrongly classified in violation of the executive order on classification.
("Complaint Seeks Punishment for Classification of Documents" by Scott
Shane, New York Times, August 2, 2011; "Ex-federal official calls U.S.
classification system 'dysfunctional'" by Ellen Nakashima, Washington Post,
July 21, 2012)

    http://www.fas.org/sgp/news/2012/07/jwl-complaint.pdf

Last December, in a newly disclosed response, John P. Fitzpatrick, the
current ISOO director, concluded that Mr. Leonard's complaint did not
warrant the sanctions that Mr. Leonard had urged.  Neither the original
classification of the NSA document, titled "What a Wonderful Success," nor
its continued classification "rise to the level of willful acts in
violation of the Order," Mr. Fitzpatrick wrote in his December 26, 2012
response.

    http://www.fas.org/sgp/jud/drake/isoo-jwl.pdf

With that, the matter was officially closed.  But the divergent views
underlying the complaint remain unresolved and continue to fester.

"I have devoted over 34 years to Federal service in the national security
arena, to include the last 5 years of my service being responsible for
Executive branch-wide oversight of the classification system," Mr. Leonard
wrote in his 2011 complaint. "During that time I have seen many equally
egregious examples of the inappropriate assignment of classification
controls to information that does not meet the standards for
classification; however, I have never seen a more willful example."

But Mr. Fitzpatrick said that having reviewed the original classification
of the document as well as its continued classification, "I find no
violation in either case."  In fact, he noted, "NSA discontinued the
classification of the document in question" during the course of the Drake
case.

"The content and processing of the document fall within the standards and
authority for classification under the Order and NSA regulations," Mr.
Fitzpatrick wrote.  That doesn't make them immune to criticism, he wrote,
but it means that their classification does not "rise to the level of
willful acts in violation of the Order."

Mr. Leonard was not persuaded.  In an email to Mr. Fitzpatrick after the
complaint was dismissed, he said he was not overly concerned by the
original classification of the document, "which although improper was, by
all appearances, a reflexive rather than willful act."  Nor, of course, was
he troubled by the eventual declassification of the document.

But "What I did and continue to take issue with is that in between those
events, senior officials of both the NSA and DoJ made a number of
deliberate decisions to use the supposed classified nature of that document
as the basis for a criminal investigation of Thomas Drake as well as the
basis for a subsequent felony indictment and criminal prosecution."

Not only that, Mr. Leonard said, but DoJ and NSA officials justified the
classification after the fact by claiming the document "reveals... a
specific level of effort..." concerning a classified activity, and that
that assertion was "factually incorrect."

    http://www.fas.org/sgp/jud/drake/jwl-resp.html

Mr. Fitzpatrick said he had no basis to comment on the Drake case per se. 
"That is not my purview."  

"I do think it important to note that ISOO's authority to handle the
complaint pertains to classification actions authorized under the Order. 
It does not extend to investigative or prosecutorial decisions made under
other authorities," Mr. Fitzpatrick told Secrecy News yesterday.

But he added that "To conclude that the single document cited in the
complaint was the primary basis for an investigation and prosecution is, in
my view, too narrow a reading of the facts of the case. When building such
cases, agencies make decisions to reduce the risk of exposing national
security information.  This influences their selection of which documents
and evidence to place in the public record.  These are matters of
investigative and prosecutorial discretion whose results are determined in
court.  Neither those results, nor opinions about the relative merits of
mounting a case, recast the original classification action as
sanction-worthy."

Mr. Leonard highlighted the striking fact that no one has ever been
sanctioned for abuse of classification authority, and he told Mr.
Fitzpatrick that the present case was a missed opportunity.

"Accountability is crucial to any system of controls and the fact that
your determination in this case preserves an unbroken record in which no
government official has ever been held accountable for abusing the
classification system does not bode well for the prospect of real reform of
the system," Mr. Leonard wrote.

Why indeed has there never been any accountability for classification
abuse?  Mr. Fitzpatrick said "This goes to the cultural aspects of national
security information control, where the premium is placed on protection and
avoidance of inadvertent disclosure.  The other side of that coin -- I
would call it simply overclassification -- is less generally policed
against.  Its ill effects are felt in the cumbersome processes associated
with declassification review and the persistent backlogs and slow processes
that characterize the system."

Mr. Leonard went further in a thoughtful but scathing presentation at a
panel sponsored by the Brennan Center for Justice on March 14, in which he
first disclosed the ISOO response to his complaint. He said, "I've come to
the conclusion that the executive branch is both incapable and unwilling to
achieve real reform in this area."

Mr. Fitzpatrick said that, for his part, he retained a degree of hope that
meaningful changes to secrecy policy could still be achieved.

"There are some essential elements needed to bring about reform, and they
hard to come by," he said via email. "The first and most important is an
unambiguous call for change from senior leadership.  That mandate must
promise commitment and describe specific outcomes the change is meant to
bring about.  Examples would include: reduce classification; expedite
declassification; improve access to declassified historical Formerly
Restricted Data.  Given that inter-agency cooperation is needed to address
these issues, nothing short of a White House-directed effort is likely to
succeed in making this kind of reform happen.  This belief underlies the
[Public Interest Declassification Board's] primary recommendation from
their recent report [namely, to establish a White House-led steering group
on secrecy reform]."

The last impartial word about the Thomas Drake prosecution (though not
specifically on classification policy) may be that of the presiding judge,
Judge Richard D. Bennett. At the July 2011 sentencing hearing that ended
the case, he called the government's handling of the matter
"unconscionable" and abusive.

Thomas Drake himself reflected on his experience in a speech to the
National Press Club on March 15:

    http://www.c-spanvideo.org/program/311537-1

SECRET SESSIONS OF CONGRESS, AND MORE FROM CRS

The latest updates from the Congressional Research Service include these
reports.

Secret Sessions of the House and Senate: Authority, Confidentiality, and
Frequency, March 15, 2013:

        http://www.fas.org/sgp/crs/secrecy/R42106.pdf

Europe's Energy Security: Options and Challenges to Natural Gas Supply
Diversification, March 15, 2013:

        http://www.fas.org/sgp/crs/row/R42405.pdf

The Amending Process in the Senate, March 15, 2013:

        http://www.fas.org/sgp/crs/misc/98-853.pdf

Commonly Used Motions and Requests in the House of Representatives, March
15, 2013:

        http://www.fas.org/sgp/crs/misc/RL32207.pdf

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and
Issues for Congress, March 15, 2013:

        http://www.fas.org/sgp/crs/weapons/R40248.pdf

Navy Irregular Warfare and Counterterrorism Operations: Background and
Issues for Congress, March 15, 2013:

        http://www.fas.org/sgp/crs/natsec/RS22373.pdf

Coast Guard Cutter Procurement: Background and Issues for Congress, March
15, 2013:

        http://www.fas.org/sgp/crs/weapons/R42567.pdf

Coast Guard Polar Icebreaker Modernization: Background, Issues, and
Options for Congress, March 15, 2013:

        http://www.fas.org/sgp/crs/weapons/RL34391.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – OPM MULLS CHANGES TO SECURITY CLEARANCE QUESTIONNAIRE

The Office of Personnel Management has invited the public to comment on
proposed changes to Standard Form (SF) 86, the questionnaire that must be
filled out by all persons who are seeking a security clearance for access
to classified information.

Although critics have argued that the SF-86 is hopelessly out of date and
should be abandoned in favor of a more streamlined process, the changes
that OPM is currently considering are mostly technicalities, not a
wholesale revision.  Proposed changes include a recognition of civil unions
as a legal alternative to marriage, a clarification that use of drugs that
are illegal under federal law must be reported even if they are legal under
state law, and changes in wording and instructions for completion of the
Form.

Public comments on the changes were solicited by OPM in a March 12 Federal
Register notice.

    http://www.fas.org/sgp/news/2013/03/fr-sf86.html

SF-86 is notoriously burdensome to fill out, requiring individuals to
supply detailed personal information about all places they have lived for
the past seven years, their employment history and where they went to
school, along with the name and contact information of someone who can
verify each item, as well as any criminal history record, use of illegal
drugs, and so forth.

    http://www.fas.org/sgp/othergov/sf86.pdf

"The SF 86 takes approximately 150 minutes to complete," the OPM notice
says.  But for many people, this seems to be an underestimate.

"I spent four hours one Saturday completing [an] SF-86," wrote John Hamre,
who was deputy secretary of defense under President Clinton, in a
Washington Post op-ed recently. ("The wrong way to weed out spies,"
Washington Post, February 20.)  His pointed criticism of the Form and the
clearance process may have inspired some of the proposed changes.

The OPM notice promises that "once entered, a respondent's complete and
certified investigative data remains secured in the e-QIP system until the
next time" the form must be completed (e.g. for clearance renewal).

But in Secretary Hamre's case this didn't happen for some reason -- his
previous Form was not saved. "The OPM apparently had no record of this
document, which was filed with that agency," he wrote, so he had to start
over from scratch.

When the SF-86 asked for a list of "all foreign travel you have undertaken
in the past 7 years," Hamre balked.  He said he had repeatedly traveled on
official business and always reported any contacts with foreign government
officials.  So "I refused to enter the information, rather than give it to
our government a second time."

As if in response to Hamre's objection, the new OPM notice says the Form's
instructions will be "amended so that the respondent need [not] report
contact related to official U.S. Government travel."

Much like the national security classification system that it supports,
the security clearance process is still predicated on cold war-era
presumptions that became obsolete decades ago. This fundamental critique
has yet to be addressed by OPM.

"Why does our government rely on forms designed in the 1950s?" Hamre
complained.  "Our country needs a system built for the 21st century.  The
current system is pathetic."

DETERRING LEAKS THROUGH POLYGRAPH TESTING

Last summer, Director of National Intelligence James R. Clapper directed
agencies that perform polygraph tests to include a "pre-test dialogue"
about the need to prevent leaks of classified information as part of the
polygraph interview process.

In a July 2012 memorandum to agencies, he said that the CIA's polygraph
program exemplified what he had in mind.

"During the pre-test discussion, CIA specifically asks whether an
individual has provided classified information or facilitated access to
classified information to any unauthorized persons, to include the media,
unauthorized U.S. persons, or foreign nationals.  The polygraph process is
also used to identify deliberate disclosures," DNI Clapper wrote.  Other
agencies that perform polygraph testing should follow procedures similar to
CIA's, he said.

"Aggressive action is required to better equip United States Government
elements to prevent unauthorized disclosures," DNI Clapper wrote.

The new policy was announced last June, but the implementing July 2012
memorandum was only released this week in response to Freedom of
Information Act requests.  See "Deterring and Detecting Unauthorized
Disclosures, Including Leaks to the Media, Through Strengthened Polygraph
Programs," July 13, 2012:

    http://www.fas.org/sgp/othergov/intel/leak-poly.pdf

A copy of the memorandum was also obtained by Jason Leopold of
Truthout.org, who reported on it yesterday.

    http://truth-out.org/news/

LEAKS: WHY THE GOVERNMENT CONDEMNS AND CONDONES THEM

Leaks of classified information and the government's responses to them are
the subject of a new study by David Pozen of Columbia Law School.

The starting point for his examination is the "dramatic disconnect between
the way our laws and our leaders condemn leaking in the abstract and the
way they condone it in practice."  How can this disconnect be understood?

Leaks benefit the government, the author argues, in many ways. They are a
safety valve, a covert messaging system, a perception management tool, and
more.  Even when a particular disclosure is unwelcome or damaging, it
serves to validate the system as a whole.

This thesis may explain why the number of leak prosecutions is still lower
than might be expected, given the prevalence of leaks, and why new
legislative proposals to combat leaks have met with a lukewarm response
from executive branch officials.

"The leak laws are so rarely enforced not only because it is hard to
punish violators, but also because key institutional actors share
overlapping interests in maintaining a permissive culture of classified
information disclosures."

The article is full of stimulating observations woven into an original and
provocative thesis.  See "The Leaky Leviathan: Why the Government Condemns
and Condones Unlawful Disclosures of Information" by David Pozen, to be
published in Harvard Law Review:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2223703

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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Secrecy News is archived at:
     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – BRADLEY MANNING TAKES RESPONSIBILITY

At an open hearing on February 28, Pfc. Bradley Manning said that he was
responsible for providing U.S. government documents to the WikiLeaks
website, including a large collection of U.S. State Department cables, a
video of a brutal U.S. Army helicopter attack in Baghdad, and other
records.

"The decisions that I made to send documents and information to the WLO
[WikiLeaks Organization] and website were my own decisions, and I take full
responsibility for my actions," he told the military court.

The Army belatedly released a redacted copy of Pfc. Manning's statement
yesterday. (An unofficial version had been privately transcribed by Alexa
O'Brien soon after the hearing.)

        http://www.fas.org/sgp/jud/manning/022813-statement.pdf

The Freedom of the Press Foundation obtained an audio recording of the
statement, which it released online.

        https://pressfreedomfoundation.org/blog

Manning eloquently expressed his motivations for the unauthorized
disclosures, including the need to expose corruption and deception in the
conduct of diplomacy and military operations. He described the efforts he
made to weigh the possible damage that might result from disclosure, and
the judgment he made that release of the records was the appropriate step.

But he did not acknowledge that any other individuals had been placed at
risk by his actions, nor did he take responsibility for any consequences
they might suffer. Taliban leaders said in 2010 that they were scrutinizing
the Afghanistan war records published by WikiLeaks and that they would
"punish" persons listed in the records who were found to have cooperated
with the U.S. military.

FOIA IN THE 113TH CONGRESS, AND MORE FROM CRS

The latest products from the Congressional Research Service include these
items.

Freedom of Information Act (FOIA): Background and Policy Options for the
113th Congress, March 8, 2013:

        http://www.fas.org/sgp/crs/secrecy/R41933.pdf

What's the Difference? -- Comparing U.S. and Chinese Trade Data, February
25, 2013:

        http://www.fas.org/sgp/crs/row/RS22640.pdf

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, March 8,
2013:

        http://www.fas.org/sgp/crs/row/RL30588.pdf

Hugo Chávez's Death: Implications for Venezuela and U.S. Relations, March
8, 2013:

        http://www.fas.org/sgp/crs/row/R42989.pdf

"Sense of" Resolutions and Provisions, March 11, 2013:

        http://www.fas.org/sgp/crs/misc/98-825.pdf

U.S. Immigration Policy: Chart Book of Key Trends, March 7, 2013:

        http://www.fas.org/sgp/crs/homesec/R42988.pdf

INTELLIGENCE SHARING IMPROVES WITH ALLIES, LAGS WITH CONGRESS

The Commander of U.S. Central Command said last week that he is
"encouraged" by the willingness of U.S. intelligence agencies to share
information with military allies, which is becoming "a standard practice
rather than the exception."  At the same time, the chair of the Senate
Intelligence Committee complained that her committee has not been receiving
the intelligence information that it requires to perform its oversight
function.

"As I travel throughout the AOR [area of responsibility] and see the
promise of new initiatives and the risk posed by numerous challenges, I
receive requests from military leaders across the region to increase
intelligence sharing between our militaries," said Gen. James N. Mattis,
CENTCOM Commander, in testimony before the Senate Armed Services Committee
on March 5.

"In order to demonstrate our commitment, I requested the Intelligence
Community to begin drafting releasable products for our most trusted
partners in the Levant, on the Arabian Peninsula, in the Central Asian
States, and in South Asia as a standard practice rather than the
exception," Gen. Mattis said.

"I am encouraged by the personal attention the Office of the Director of
National Intelligence is giving these matters. Director Clapper's strong
emphasis and encouragement for the intelligence community to produce
intelligence in a manner that eases our ability to responsibly share
information with our military counterparts creates a stronger, more focused
front against our common enemies and builds our partner nations'
confidence.  We are grateful for the nimble manner in which our
intelligence community has strengthened our efforts to checkmate more of
our enemy's designs," Gen. Mattis testified.

    http://www.fas.org/irp/congress/2013_hr/030513mattis.pdf

But in a notable contrast, congressional leaders say they have not gotten
similar cooperation from the intelligence community, and they have less
reason for encouragement.

"There is a very strong feeling on both sides of the aisle that the
[intelligence] committee is not receiving the information it needs to
conduct all oversight matters in the manner in which we should," said Sen.
Dianne Feinstein, chair of the Senate Intelligence Committee, during the
Senate confirmation of John O. Brennan to be CIA Director on March 7

    http://www.fas.org/irp/congress/2013_cr/brennan.html

"There is the matter of Office of Legal Counsel opinions concerning the
targeted killing of Americans.  The committee needs to understand the legal
underpinning of not only this program but of all clandestine programs, of
all covert actions, so we may ensure the actions of the intelligence
community operate according to law," Sen. Feinstein said. "Absent these
opinions, we cannot conduct oversight that is as robust as it needs to be."

With respect to the opinions on targeted killing, at least, the committee
was finally able to reach an accommodation with the Administration while
the confirmation process was pending, which included "staff access and
without restrictions on note taking," she said.

"I want to thank the administration. I think increasingly they understand
this problem of the need for us to access more information. It is not a
diminishing one, it is a growing one, and it is spreading through this
House-- and I suspect the other House as well," Sen. Feinstein said.

Sen. Patrick Leahy, chair of the Senate Judiciary Committee, said he
"reluctantly opposed" the confirmation of Mr. Brennan because "the
administration has stonewalled me and the Judiciary Committee for too long
on a reasonable request to review the legal justification for the use of
drones in the targeted killing of American citizens."

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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Secrecy News is archived at:
     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – FEDS ADD NEW ESPIONAGE ACT CHARGE AGAINST LINGUIST

Last fall, Navy contract linguist James Hitselberger was charged under the
Espionage Act with two counts of unlawful retention of national defense
information after several classified documents were allegedly found in his
possession.  (See "Document Collector Charged Under Espionage Statute,"
Secrecy News, November 7, 2012.)

Two weeks ago, in a superseding indictment, prosecutors added a third
charge of unlawful retention under the Espionage Act, along with three
other counts of unauthorized removal of a public record.

    http://www.fas.org/sgp/jud/hitsel/indict-sup.pdf

Mr. Hitselberger's public defenders responded with a battery of pre-trial
motions, including a new challenge to the constitutionality of the
Espionage Act itself.

The defense attorneys said the indictment against Mr. Hitselberger is
"multiplicious," meaning that a single offense has been alleged in
multiple, redundant counts. This is an impermissible practice that is
considered prejudicial to a defendant.  Mulitplicious counts "afford the
government an unfair advantage by increasing the likelihood that the jury
will convict on at least one count, if only as the result of a compromise
verdict."  The defense asked the court to compel prosecutors to choose
between Count One and Count Two, "both of which charge the same offense of
unlawful retention of national defense information." 

    http://www.fas.org/sgp/jud/hitsel/030113-mult.pdf

Defense attorneys also moved for a "bill of particulars" to require the
government to identify exactly which "national defense information" Mr.
Hitselberger is accused of unlawfully retaining in violation of the
Espionage Act.

"Even if the documents at issue here are classified and the government
proves beyond a reasonable doubt the Mr. Hitselberger retained them, the
government must establish that information within these documents
constitutes national defense information.... [Yet] much (if not all) of the
information contained in the documents is publicly available
information.... In order to prepare for trial without needlessly preparing
to respond to irrelevant information or guessing at what the government
deems relevant, defense counsel must be directed to the portions of the
documents that the government claims constitute national defense
information."

    http://www.fas.org/sgp/jud/hitsel/bop.pdf

But perhaps the most interesting motion filed by the defense, and one
which adds a dimension beyond the particular facts of Mr. Hitselberger's
case, asks the court to find the unlawful retention statute of the
Espionage Act unconstitutionally vague.

Every leak prosecution has included a defense challenge to the
constitutionality of the Espionage Act, almost as a matter of course.  The
constitutionality of the Act has consistently been upheld, though sometimes
with limiting factors imposed by the court.  In any event, the Hitselberger
motion, filed by public defenders A.J. Kramer and Mary Manning Petras,
carefully distinguishes the current matter from previous cases.  At several
points the motion included striking insights from Melville Nimmer and other
legal scholars to bolster its argument.  The result is something more than
a pro forma gesture.

The Espionage Act prohibition on unlawful retention of national defense
information (18 USC 793e) "is a statute of alarming breadth and little
definition," the defense attorneys concluded. "Because the statute is
vague, this Court should dismiss Counts One, Two and Three of the
indictment."

    http://www.fas.org/sgp/jud/hitsel/030113-vague.pdf

Other motions filed by the defense and the prosecution are posted here:

    http://www.fas.org/sgp/jud/hitsel/index.html

Mr. Hitselberger is not accused of espionage, nor is he suspected of
acting on behalf of a foreign power.

WHEN CAN A COURT REJECT AN AGENCY CLASSIFICATION CLAIM?

Last year, DC District Judge Richard W. Roberts ordered the U.S. Trade
Representative to disclose a classified document to a FOIA requester
because, he said, the classification of the document was not properly
supported.  (See "Court Says Agency Classification Decision Not 'Logical,"
Secrecy News, March 2, 2012.) That ruling in Center for International
Environmental Law v. Office of the U.S. Trade Representative was a
startling judicial rebuff to executive classification authority of a sort
that had not been seen in many years, and the government quickly appealed.

In oral arguments in the DC District Appeals Court last month, government
attorneys all but declared that a court has no power to overrule an
executive branch classification decision. The transcript of that February
21 hearing has just become available.

    http://www.fas.org/sgp/jud/ciel/oralarg.pdf

Judge Roberts' "substitution of [his] judgment about likely harm to
foreign relations [that could ensue from disclosure] fails to give the
deference that's due to the Executive in this sensitive area of foreign
relations and national security, and is entirely inconsistent with this
Court's consistent case law over many decades that emphasizes the need for
such deference," argued H. Thomas Byron, III, on behalf of the U.S. Trade
Representative.

Circuit Court Judge Brett Kavanaugh asked Mr. Byron whether there were any
circumstances in which a court could reject a classification claim.

"When do you think a Court could ever disagree with the Executive's
determination in this kind of case?" Judge Kavanaugh asked.

Mr. Byron that if the agency's declarations in support of classification
are logical and plausible, then the agency is entitled to judicial
deference.

"Isn't that going to cover 100 percent of the cases?" Judge Kavanaugh
asked.

"I certainly think, Judge Kavanaugh, that the Executive would not submit a
declaration that was not logical or plausible," Mr. Byron replied.

Then he went even further and suggested that the executive branch has
exclusive constitutional authority over classification policy.

Judge Kavanaugh was inquiring how the government would respond to an
argument made in an amicus brief filed by media organizations contending
that Congress had mandated judicial review of classification when it
amended the FOIA in 1974 in order to enable Courts to review executive
classification judgments. Not only that, but when President Ford vetoed the
measure, Congress overrode the veto.

Mr. Byron said, "The question is whether those changes [i.e. the 1974
amendments] altered the constitutionally required deference to the
Executive in this area under the Separation of Powers Doctrine," suggesting
that the congressional override of President Ford's veto was meaningless
and without effect.

"That's interesting," said Judge Kavanaugh. "You don't think Congress
could put the courts in the position of second guessing" the executive?

"Well, when it comes to predictive judgments about harm to national
security and foreign relations I think that's a very difficult question,"
Mr. Byron said.

"I agree," Judge Kavanaugh replied.

Cogent arguments to the contrary were made by attorney Martin Wagner on
behalf of the Center for International Environmental Law at the hearing and
can be found in the transcript.

SUNSHINE WEEK EVENTS AIM TO PROMOTE OPEN GOVERNMENT

This week is Sunshine Week, an annual effort sponsored by journalism
advocacy and civil society organizations to promote values of open
government, freedom of information, and public participation. A rich
variety of events are scheduled around the country, most of which are free
and many of which will be webcast.

    http://sunshineweek.rcfp.org/events/

I will be participating in several programs, including these:  "Open
Government in the Second Term," sponsored by the Center for Effective
Government and the Electronic Privacy Information Center on March 12:

    http://epic.org/events/sunshineweek2013.html

The Future of Classification Reform, sponsored by the Brennan Center for
Justice on March 14:

    http://www.brennancenter.org/events

Freedom of Information Day at the Newseum on March 15:

    http://www.freedomforum.org/e-vite/press/foi-2013/body.html

Freedom of Information Day at the Washington College of Law Collaboration
on Government Secrecy on March 18:

    http://www.wcl.american.edu/lawandgov/cgs/

A new report from the Center for Effective Government found reason to
praise the Obama Administration's openness in some areas of government but
not in national security, which it said has been a "glaring exception" to
progress in other domains.  

Among numerous recommendations for future progress, the Center report
urged the Department of Justice to renounce the use of criminal prosecution
for leaks to the media. "Unauthorized disclosures of restricted information
to the media should be handled through administrative channels, not
criminal prosecution."  See "Delivering on Open Government: The Obama
Administration's Unfinished Legacy," March 10:

    http://www.foreffectivegov.org/obama-first-term-transparency-report

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – THE REAL MINIMUM WAGE, CYBERSECURITY, AND MORE FROM CRS

The hourly minimum wage reached its peak value in 1968, when it was worth
$10.57 in real terms, the Congressional Research Service calculated in a
new report.  But although the nominal value of the minimum wage has
increased over the years, it has not kept pace with the increase in
consumer prices, and so its real value has fallen.  See Inflation and the
Real Minimum Wage: A Fact Sheet, February 26, 2013:

    http://www.fas.org/sgp/crs/misc/R42973.pdf

The recent executive order 13636 on cybersecurity was discussed in another
new CRS report, which reviewed the order's provisions, compared it to
pending legislation, and discussed the authority of the President to act
unilaterally in this area.  See "The 2013 Cybersecurity Executive Order:
Overview and Considerations for Congress," March 1, 2013:

    http://www.fas.org/sgp/crs/misc/R42984.pdf

A 1999 provision to provide public access to scientific data used in
federally funded research (known as the Shelby Amendment) has rarely been
invoked in Freedom of Information Act requests, and so neither the benefits
promised by its advocates nor the concerns of its critics have been
realized to any significant extent, a CRS study found.  See Public Access
to Data from Federally Funded Research: Provisions in OMB Circular A-110,
March 1, 2013:

    http://www.fas.org/sgp/crs/secrecy/R42983.pdf

The prospects for current negotiations between the government of Colombia
and the insurgent Revolutionary Armed Forces of Colombia (FARC) were
assessed in a new CRS report, which also provided background on the
conflict in that country.  See Peace Talks in Colombia, March 1, 2013:

    http://www.fas.org/sgp/crs/row/R42982.pdf

The U.S. Supreme Court has agreed to hear challenges to two state laws
that impose restrictions on same-sex marriage. The two pending cases were
discussed by CRS in Same-Sex Marriage and Supreme Court: United States v.
Windsor and Hollingsworth v. Perry, February 20, 2013:

    http://www.fas.org/sgp/crs/misc/R42976.pdf

The Equal Rights Amendment that was proposed in 1972 to prohibit
discrimination "on account of sex" was eventually ratified by 35 states,
three short of the 38 states required for adoption.  Those ratifications
have formally expired, but some supporters contend controversially that it
would possible "to restart the clock on ratification at the current level
of 35 states."  The issues were discussed by CRS in The Proposed Equal
Rights Amendment: Contemporary Ratification Issues, February 28, 2013:

    http://www.fas.org/sgp/crs/misc/R42979.pdf

The adequacy of official reporting of government expenditures is a
continuing concern among policy advocates.  "Two agencies -- the Department
of Homeland Security (DHS) and the Department of Defense (DOD) -- have
never received unqualified audit opinions, which signifies the persistence
of financial problems at these agencies," a new CRS report said.  See
Federal Financial Reporting: An Overview, February 27, 2013:

    http://www.fas.org/sgp/crs/misc/R42975.pdf

Other noteworthy new and updated CRS products that Congress has directed
CRS not to release to the public include the following.

Issues in Homeland Security Policy for the 113th Congress, February 27,
2013:

    http://www.fas.org/sgp/crs/homesec/R42985.pdf

Comparison of Rights in Military Commission Trials and Trials in Federal
Criminal Court, February 28, 2013:

    http://www.fas.org/sgp/crs/natsec/R40932.pdf

International Law and Agreements: Their Effect Upon U.S. Law, March 1,
2013:

    http://www.fas.org/sgp/crs/misc/RL32528.pdf

Cybersecurity: Authoritative Reports and Resources, February 28, 2013:

    http://www.fas.org/sgp/crs/misc/R42507.pdf

U.S. Crude Oil and Natural Gas Production in Federal and Non-Federal
Areas, February 28, 2013:

    http://www.fas.org/sgp/crs/misc/R42432.pdf

Securing America's Borders: The Role of the Military, February 25, 2013:

    http://www.fas.org/sgp/crs/homesec/R41286.pdf

Army Drawdown and Restructuring: Background and Issues for Congress, March
5, 2013:

    http://www.fas.org/sgp/crs/natsec/R42493.pdf

U.S. Trade and Investment in the Middle East and North Africa: Overview
and Issues for Congress, February 28, 2013:

    http://www.fas.org/sgp/crs/misc/R42153.pdf

Southwest Border Violence: Issues in Identifying and Measuring Spillover
Violence, February 28, 2013:

    http://www.fas.org/sgp/crs/homesec/R41075.pdf

Base Realignment and Closure (BRAC): Transfer and Disposal of Military
Property, February 28, 2013:

    http://www.fas.org/sgp/crs/natsec/R40476.pdf

Department of Defense Trends in Overseas Contract Obligations, March 1,
2013:

    http://www.fas.org/sgp/crs/natsec/R41820.pdf

Sequestration as a Budget Enforcement Process: Frequently Asked Questions,
February 27, 2013:

    http://www.fas.org/sgp/crs/misc/R42972.pdf

Sessions, Adjournments, and Recesses of Congress, February 27, 2013:

    http://www.fas.org/sgp/crs/misc/R42977.pdf

Kenya: Current Issues and U.S. Policy, February 26, 2013:

    http://www.fas.org/sgp/crs/row/R42967.pdf

Comparing Medicaid and Exchanges: Benefits and Costs for Individuals and
Families, February 28, 2013:

    http://www.fas.org/sgp/crs/misc/R42978.pdf

Brief History of Comprehensive Immigration Reform Efforts in the 109th and
110th Congresses to Inform Policy Discussions in the 113th Congress,
February 27, 2013:

    http://www.fas.org/sgp/crs/homesec/R42980.pdf

U.S. Trade and Investment in the Middle East and North Africa: Overview
and Issues for Congress, February 28, 2013:

        http://www.fas.org/sgp/crs/misc/R42153.pdf

China's Economic Conditions, March 4, 2013:

    http://www.fas.org/sgp/crs/row/RL33534.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – SENATORS ASK SURVEILLANCE COURT TO SUMMARIZE OPINIONS

Several members of the Senate Intelligence Committee wrote to the Foreign
Intelligence Surveillance Court this month to ask the Court to prepare
summaries of classified opinions that represent significant interpretations
of the Foreign Intelligence Surveillance Act in order to facilitate their
declassification and public release.

Meanwhile, the U.S. Supreme Court ruled that plaintiffs challenging the
constitutionality of the FISA Amendments Act lacked the requisite legal
standing to pursue their case, effectively foreclosing public oversight of
intelligence surveillance through the courts.

The Senate letter, the text of which was not released, stems from an
amendment to the FISA Amendments Act that was introduced by Sen. Jeff
Merkley in December to promote declassification of significant Surveillance
Court opinons.  The Merkley amendment was not adopted -- none of the
legislative proposals to increase accountability were approved -- but
Senate Intelligence Committee chair Sen. Dianne Feinstein promised to work
with Sen. Merkley to advance the declassification of FISC opinions.

"An open and democratic society such as ours should not be governed by
secret laws, and judicial interpretations are as much a part of the law as
the words that make up our statute," said Sen. Merkley at that time. "The
opinions of the FISA Court are controlling. They do matter. When a law is
kept secret, public debate, legislative intent, and finding the right
balance between security and privacy all suffer."

    http://www.fas.org/irp/congress/2012_cr/faa-amend.html

"I wish to address, if I could, what Senator Merkley said in his
comments," said Sen. Feinstein during the December 27 floor debate. "I
listened carefully. What he is saying is opinions of the Foreign
Intelligence Surveillance Court should, in some way, shape or form, be made
public, just as opinions of the Supreme Court or any court are made
available to the public. To a great extent, I find myself in agreement with
that. They should be."

"I have offered to Senator Merkley to write a letter requesting
declassification of more FISA Court opinions," Sen. Feinstein continued.
"[...] When possible, the opinions of the Foreign Intelligence Surveillance
Court should be made available to the public in declassified form. It can
be done, and I think it should be done more often. If the opinion cannot be
made public, hopefully a summary of the opinion can. And I have agreed with
Senator Merkley to work together on this issue."

That letter, signed by Senators Feinstein, Merkley, Ron Wyden and Mark
Udall, has now been sent to the FISA Court, where it awaits an official
response.

Though the letter itself is a modest step, the willingness of
congressional overseers to assert themselves on behalf of public
accountability takes on new importance in light of yesterday's Supreme
Court decision (by a 5-4 vote) to block a constitutional challenge to the
FISA Amendments Act. That decision all but closes the door to public
oversight of the law's implementation through the courts.

    http://www.supremecourt.gov/opinions/12pdf/11-1025_ihdj.pdf

The Court majority insisted that judicial review of government
surveillance activities is alive and well, contrary to the plaintiffs'
assertion.  It is "both legally and factually incorrect" to assert that
surveillance is insulated from judicial review, stated the majority opinion
written by Justice Samuel A. Alito, Jr., who cited the role of the Foreign
Intelligence Surveillance Court in authorizing surveillance activities.

But ACLU attorney Jameel Jaffer said that view "seems to be based on the
theory that the FISA Court may one day, in some as-yet unimagined case,
subject the law to constitutional review, but that day may never come. And
if it does, the proceeding will take place in a court that meets in secret,
doesn't ordinarily publish its decisions, and has limited authority to
consider constitutional arguments. This theory is foreign to the
Constitution and inconsistent with fundamental democratic values," Jaffer
said.

On Monday, Sen. Feinstein paid tribute to L. Christine Healey, a
professional staff member of the Senate Intelligence Committee who is
retiring this week.  For three decades, Ms. Healey has played an
influential role in intelligence oversight as a staffer on the House and
Senate intelligence committees, as well as on the 9/11 Commission.  "She
has been as responsible as anyone for the passage of a string of four
annual intelligence authorization bills, including the fiscal year 2013 act
that was completed in December," said Sen. Feinstein.

Ms. Healey was also credited by Sen. Feinstein as "the principal drafter
of the FISA Amendments Act of 2008."

    http://www.fas.org/irp/congress/2013_cr/healey.html

A PROFILE OF THE 113TH CONGRESS, AND MORE FROM CRS

"The average age of Members of the 113th Congress is among the highest of
any Congress in recent U.S. history," according to a new report from the
Congressional Research Service.  The average age of Members of the House of
Representatives is 57 years, while the average age of Senators is 62 years.

"The overwhelming majority of Members of Congress have a college
education," the CRS found. "The dominant professions of Members are public
service/politics, business, and law. Most Members identify as Christians,
and Protestants collectively constitute the majority religious affiliation.
Roman Catholics account for the largest single religious denomination, and
numerous other affiliations are represented."

One hundred women (a record number) serve in the 113th Congress. There are
43 African American Members, and 38 Hispanic or Latino Members (a record
number) serving. Thirteen Members are Asian American or Pacific Islanders.
There is one Native American serving in the House.

See Membership of the 113th Congress: A Profile, February 20, 2013:

        http://www.fas.org/sgp/crs/misc/R42964.pdf

Other noteworthy new and updated products of the Congressional Research
Service that Congress has not made publicly available include the
following.

Congressional Authority to Limit Military Operations, February 19, 2013:

        http://www.fas.org/sgp/crs/natsec/R41989.pdf

Nuclear Weapons R&D Organizations in Nine Nations, February 22, 2013:

        http://www.fas.org/sgp/crs/nuke/R40439.pdf

Bond v. United States: Validity and Construction of the Federal Chemical
Weapons Statute, February 21, 2013:

        http://www.fas.org/sgp/crs/nuke/R42968.pdf

Arms Control and Nonproliferation: A Catalog of Treaties and Agreements,
February 20, 2013:

        http://www.fas.org/sgp/crs/nuke/RL33865.pdf

Border Security: Understanding Threats at U.S. Borders, February 21, 2013:

        http://www.fas.org/sgp/crs/homesec/R42969.pdf

NAFTA at 20: Overview and Trade Effects, February 21, 2013:

        http://www.fas.org/sgp/crs/row/R42965.pdf

Navy Force Structure and Shipbuilding Plans: Background and Issues for
Congress, February 22, 2013, with new material on the anticipated impact of
sequestration:

        http://www.fas.org/sgp/crs/weapons/RL32665.pdf

Azerbaijan: Recent Developments and U.S. Interests, February 22, 2013:

        http://www.fas.org/sgp/crs/row/97-522.pdf

U.S.-Japan Economic Relations: Significance, Prospects, and Policy
Options, February 20, 2013:

        http://www.fas.org/sgp/crs/row/RL32649.pdf

Egypt: Background and U.S. Relations, February 26, 2013:

        http://www.fas.org/sgp/crs/mideast/RL33003.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – SEQUESTER MAY SLOW PENTAGON RESPONSE TO WIKILEAKS

The across-the-board budget cuts known as sequestration that are expected
to take effect on March 1 could impede the government's ability to respond
to WikiLeaks and to rectify the flaws in information security that it
exposed, a Pentagon official told Congress recently.

Zachary J. Lemnios, the assistant secretary of defense for research and
engineering, was asked by Sen. Rob Portman (R-Ohio) to describe the "most
significant" impacts on cybersecurity that could follow from the
anticipated cuts to the Pentagon's budget.

Mr. Lemnios replied that "cuts under sequestration could hurt efforts to
fight cyber threats, including [...] improving the security of our
classified Federal networks and addressing WikiLeaks."

    http://www.fas.org/irp/congress/2012_hr/fydp-42.pdf

The sequester could also interfere with the Comprehensive National
Cybersecurity Initiative that began under President Bush, he said, and
could hold up plans to "initiat[e] continuous monitoring of unclassified
networks at all Federal agencies."

Mr. Lemnios' response to Sen. Portman's question for the record (which had
not specifically mentioned WikiLeaks) followed a March 2012 Senate Armed
Services Committee hearing on Emerging Threats and Capabilities that was
published in December 2012 (at page 42).

    http://www.fas.org/irp/congress/2012_hr/fydp.pdf

Generally speaking, computer security within the military is a daunting
problem, Mr. Lemnios told the Committee, particularly since "The Department
operates over 15,000 networks and 7 million computing devices across
hundreds of installations in dozens of countries around the globe."

The challenge of cybersecurity cannot be fully described in public, said
Dr. Kaigham J. Gabriel of DARPA. "The complete picture requires a
discussion at the special access level."  But he told the Committee last
year that several basic points can be openly acknowledged:

"Attackers can penetrate our networks:  In just 3 days and at a cost of
only $18,000, the Host-Based Security System" -- the Pentagon's baseline
computer security system -- "was penetrated."

"User authentication is a weak link: 53,000 passwords were provided to
teams at Defcon; within 48 hours, 38,000 were cracked."

"The Defense supply chain is at risk: More than two-thirds of electronics
in U.S. advanced fighter aircraft are fabricated in off-shore foundries."

"Physical systems are at risk: A smartphone hundreds of miles away took
control of a car's drive system through an exploit in a wireless
interface."

"The United States continues to spend on cybersecurity with limited
increase in security: The Federal Government expended billions of dollars
in 2010, but the number of malicious cyber intrusions has increased."

Though it was presumably not intentional, the WikiLeaks project galvanized
government information security programs and accelerated efforts to devise
"insider threat" detection mechanisms, along with intensified surveillance
of classified and unclassified government computer networks.

"New classes of anomaly detection methods have been developed and are
based on aggregating events across time and multiple sources to identify
network and host-based behavior that might be malicious," James S. Peery of
Sandia National Laboratories told the Senate Armed Services Committee at
last year's hearing.  "These approaches and behavioral-based methods have
been successful in finding previously undiscovered malware."

"One drawback of this technology, though, is that it has a very high false
positive rate," he said.

OPEN ACCESS TO SCIENTIFIC RESEARCH ADVANCES

Government-sponsored scientific research published in expensive journals
should become more readily accessible to the public under an initiative
announced by the White House Office of Science and Technology Policy on
Friday.

    http://www.fas.org/sgp/obama/sciaccess.pdf

Federal agencies that fund at least $100 million per year in scientific
research were directed by White House science advisor John Holdren to
develop plans to make the results of such research publicly available free
of charge within a year of original publication.

"The logic behind enhanced public access is plain," Dr. Holdren wrote in
response to a public petition on the White House web site. "We know that
scientific research supported by the Federal Government spurs scientific
breakthroughs and economic advances when research results are made
available to innovators. Policies that mobilize these intellectual assets
for re-use through broader access can accelerate scientific breakthroughs,
increase innovation, and promote economic growth."

But the benefits of open access are not the sole consideration in the new
policy.  "The Administration also recognizes that publishers provide
valuable services, including the coordination of peer review, that are
essential for ensuring the high quality and integrity of many scholarly
publications. It is critical that these services continue to be made
available."

"We wanted to strike the balance between the extraordinary public benefit
of increasing public access to the results of federally-funded scientific
research and the need to ensure that the valuable contributions that the
scientific publishing industry provides are not lost," Dr. Holdren wrote.

The resulting policy mandating free public access within 12 months of
publication is the result of an attempt to balance those competing
interests, and it too is subject to future modification "based on
experience and evidence."

COMMENTS SOUGHT ON OVERSIGHT OF "DUAL USE" BIO RESEARCH

Members of the public are invited to comment on the feasibility and
desirability of various forms of institutional oversight at
federally-funded institutions that perform research involving certain
pathogens or toxins.

"Certain types of research that are conducted for legitimate purposes may
also be utilized for harmful purposes. Such research is called 'dual use
research'," said a Notice filed in the Federal Register Friday by the
Office of Science and Technology Policy.

    http://www.fas.org/sgp/news/2013/02/ostp-dual.html

"Dual use research of concern (DURC) is a smaller subset of dual use
research defined as life sciences research that, based on current
understanding, can be reasonably anticipated to provide knowledge,
information, products, or technologies that could be directly misapplied to
pose a significant threat with broad potential consequences to public
health and safety, agricultural crops and other plants, animals, the
environment, materiel, or national security," the OSTP Notice explained.

The term "dual use research of concern" should not be taken in a
pejorative sense, OSTP said.

"Research that meets the definition of DURC often increases our
understanding of the biology of pathogens and makes critical contributions
to the development of new treatments and diagnostics, improvements in
public health surveillance, and the enhancement of emergency preparedness
and response efforts. Thus, designating research as DURC should not be seen
as a negative categorization, but simply an indication that the research
may warrant additional oversight in order to reduce the risks that the
knowledge, information, products, or technologies generated could be used
in a manner that results in harm. As a general matter, designation of
research as DURC does not mean that the research should not be conducted or
communicated."

In the February 22 Federal Register Notice, OSTP posed a series of
questions concerning potential oversight arrangements for dual use research
of concern and solicited feedback from interested members of the public.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – A NEW JUDGE FOR THE FISA COURT

Judge Claire V. Eagan of the Northern District of Oklahoma was appointed
this month to the U.S. Foreign Intelligence Surveillance Court by the Chief
Justice of the United States.

Her term on the FIS Court began on February 13, 2013 and will extend until
May 18, 2019.  She replaces Judge Jennifer B. Coffman, who retired on
January 8 before the end of her term.  Another appointment, to replace
outgoing Judge John D. Bates, whose term ends tomorrow, is imminent, said
Sheldon Snook, spokesman for the Court.

The FIS Court authorizes electronic surveillance and physical searches for
intelligence and counterterrorism purposes. The current membership of the
Court is listed here:

        http://www.fas.org/irp/agency/doj/fisa/court2013.html

Judge Eagan was appointed to the federal bench by President George W. Bush
in 2001.

The FIS Court has been discussed lately as a potential model for some form
of judicial review of the use of drones in lethal strikes against suspected
terrorists. Speaking at the February 7 confirmation hearing of John Brennan
to be CIA Director, Senate Intelligence Committee chair Sen. Dianne
Feinstein said her Committee would examine "the proposal to create an
analogue of the Foreign Intelligence Surveillance Court to review the
conduct of such strikes."

But the application of the FISA model for authorizing intelligence
surveillance to the substantially different issue of lethal targeting would
not be straightforward, and may not be appropriate at all.

The notion "that federal judges ought to be assigned the task of
monitoring, mediating and approving the killer instincts of our government
[...] is a very bad idea," wrote Judge James Robertson, a former FIS Court
member, in the Washington Post ("Judges shouldn't decide about drone
strikes," February 15).

UNCONVENTIONAL MONETARY POLICY, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that
Congress has chosen not to make available to the public include the
following.

Federal Reserve: Unconventional Monetary Policy Options, February 19,
2013:

        http://www.fas.org/sgp/crs/misc/R42962.pdf

Federal Assault Weapons Ban: Legal Issues, February 14, 2013:

        http://www.fas.org/sgp/crs/misc/R42957.pdf

Pharmaceutical Patent Settlements: Issues in Innovation and
Competitiveness, February 15, 2013:

        http://www.fas.org/sgp/crs/misc/R42960.pdf

Unauthorized Aliens: Policy Options for Providing Targeted Immigration
Relief, February 13, 2013:

        http://www.fas.org/sgp/crs/homesec/R42958.pdf

Cars, Trucks, and Climate: EPA Regulation of Greenhouse Gases from Mobile
Sources, February 14, 2013:

        http://www.fas.org/sgp/crs/misc/R40506.pdf

Japan-U.S. Relations: Issues for Congress, February 15, 2013:

        http://www.fas.org/sgp/crs/row/RL33436.pdf

Exemptions for Firearms in Bankruptcy, February 15, 2013:

        http://www.fas.org/sgp/crs/misc/R41799.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – ARMY USE OF DRONES IN U.S. IS CONSTRAINED, NOT PROHIBITED

There are significant barriers to the Army's use of unmanned aerial
systems within the United States, according to a new Army manual, but they
are not prohibitive or categorical.

"Legal restrictions on the use of unmanned aircraft systems in domestic
operations are numerous," the manual states.  The question arises
particularly in the context of Defense Support of Civil Authorities (DSCA),
refering to military assistance to government agencies in disaster response
and other domestic emergencies.

"Use of DOD intelligence capabilities for DSCA missions--such as incident
awareness and assessment, damage assessment, and search and
rescue--requires prior Secretary of Defense approval, together with
approval of both the mission and use of the exact DOD intelligence
community capabilities. Certain missions require not only approval of the
Secretary of Defense, but also coordination, certification, and possibly,
prior approval by the Attorney General of the United States."

As a general rule, "military forces cannot use military systems for
surveillance and pursuit of individuals."  This is precluded by the Posse
Comitatus Act, as reflected in DoD Directive 5525.5.

But there is a possibility that exceptions may arise, the manual
indicates.  "[Unmanned aircraft] operators cannot conduct surveillance on
specifically identified U.S. persons, unless expressly approved by the
Secretary of Defense, consistent with U.S. laws and regulations."

See U.S. Army Field Manual FM 3-52, Airspace Control, February 2013
(especially Appendix G):

        http://www.fas.org/irp/doddir/army/fm3-52.pdf

"Commanders decide to employ unmanned aircraft systems judiciously. Use of
unmanned aircraft systems requires approval at high levels within the DOD
and the FAA prior to employment in DSCA," the manual states.

"Certain unmanned aircraft systems such as Global Hawk can operate far
above normal commercial traffic while providing situation assessment to
ground commanders. Intermediate systems such as the Predator have supported
recent disaster operations, dramatically increasing situational awareness
at the joint field office level. If available and authorized, these systems
can provide near-real-time surveillance to command posts for extended
periods. The approval process is not automatic."

The Army manual asserts that the perceived risks of drone failure or
accident are out of proportion to the actual documented risks.

"For example, from 2003 to 2010, small, unmanned aircraft systems flew
approximately 250,000 hours with only one incident of a collision with
another airspace user. However, the perception of the risk posed by small,
unmanned aircraft systems was much greater." (page A-1).

WHAT'S THE DIFFERENCE BETWEEN AN EXECUTIVE ORDER AND A DIRECTIVE?

The Obama Administration issued policy statements this week on critical
infrastructure protection and cyber security, including measures to
encourage information sharing with the private sector and other steps to
improve policy coordination.  Curiously, the Administration issued both an
Executive order and a Presidential directive devoted to these topics.

Executive Order 13636 focuses on "Improving Critical Infrastructure
Cybersecurity" while Presidential Policy Directive 21 deals more broadly
with "Critical Infrastructure Security and Resilience."

        http://www.fas.org/irp/offdocs/eo/eo-13636.htm

        http://www.fas.org/irp/offdocs/ppd/ppd-21.pdf

But the simultaneous release of the two types of Presidential instruction
on overlapping themes raises the question:  What is the difference between
an Executive Order and a Presidential Directive?

"There are probably two significant differences between an EO and a PD, at
least to my understanding," said Harold Relyea, who served for decades as a
Specialist in American National Government at the Congressional Research
Service.

"First, in almost all cases, for an EO to have legal effect, it must be
published in the Federal Register.  This is a statutory requirement.  A PD
does not have to meet this publication requirement, which means it can more
readily be 'born classified'."

"Second," he added, "is the matter of circulation and accountability.  EOs
are circulated to general counsels or similar agency attorneys, which can
be readily accomplished by FR publication.  Again, a PD may be more
selectively circulated, and this is done through developed routing
procedures.  Ultimately, EOs are captured not only in the FR, but also in
annual volumes (Title 3) of the CFR [Code of Federal Regulations].  PDs are
maintained in the files of the NSC staff and, God knows, if anywhere else! 
I might also add that a form for EOs has been prescribed (in an EO); no
form has been prescribed (as far as I know) for PDs."

A CRS overview of the various types of "Presidential Directives" authored
by Dr. Relyea in 2008 is available here:

        http://www.fas.org/sgp/crs/misc/98-611.pdf

The Justice Department Office of Legal Counsel wrote in a 2000 opinion
that executive orders and directives are equivalent in their force and
impact. "As this Office has consistently advised, it is our opinion that
there is no substantive difference in the legal effectiveness of an
executive order and a presidential directive that is not styled as an
executive order."

        http://www.fas.org/irp/offdocs/predirective.html

For reasons that are not immediately clear, President Obama has issued
presidential directives much less frequently than his predecessors.  The
latest directive, PDD-21, is only the 21st such Obama directive.  By
comparison, President George W. Bush had issued 42 directives by the first
January of his second term.  President Clinton had issued 53 directives by
the beginning of his second term.

NORTH KOREA'S NUCLEAR WEAPONS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service obtained
by Secrecy News that have not been made readily available to the public
include the following.

North Korea's Nuclear Weapons: Technical Issues, February 12, 2013:

        http://www.fas.org/sgp/crs/nuke/RL34256.pdf

Pakistan's Nuclear Weapons: Proliferation and Security Issues, February
13, 2013:

        http://www.fas.org/sgp/crs/nuke/RL34248.pdf

Comprehensive Nuclear-Test-Ban Treaty: Background and Current
Developments, February 12, 2013:

        http://www.fas.org/sgp/crs/nuke/RL33548.pdf

Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments,
February 13, 2013:

        http://www.fas.org/sgp/crs/misc/R40421.pdf

Child Well-Being and Noncustodial Fathers, February 12, 2013:

        http://www.fas.org/sgp/crs/misc/R41431.pdf

Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance
Law and Policy, February 12, 2013:

        http://www.fas.org/sgp/crs/row/R41360.pdf

Latin America and the Caribbean: Key Issues for the 113th Congress,
February 8, 2013:

        http://www.fas.org/sgp/crs/row/R42956.pdf

U.S. Manufacturing in International Perspective, February 11, 2013:

        http://www.fas.org/sgp/crs/misc/R42135.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – LEAK OF WHITE PAPER BOOSTS INTELLIGENCE OVERSIGHT

The unauthorized disclosure last week of a Justice Department White Paper
on the legality of targeted killing of senior al Qaida operatives who are
Americans had the collateral effect of strengthening congressional
oversight of intelligence.

The leak not only fulfilled a stalemated congressional effort to provide
information to the public, but it also catalyzed the long-sought disclosure
of classified documents to the intelligence committees themselves.

Although the intelligence committees received the White Paper in June
2012, they proved powerless on their own to gain its broader public
release, or to acquire their own copies of the underlying legal memoranda.

“I have been calling for the public release of the administration’s
legal analysis on the use of lethal force--particularly against U.S.
citizens--for more than a year," said Sen. Dianne Feinstein, the chair of
the Senate Intelligence Committee in a February 5 statement. "That analysis
is now public...."

In other words, what the chairman of the Senate Intelligence Committee was
unable to accomplish for over a year was achieved by a resourceful reporter
(Michael Isikoff of NBC) along with a cooperative source.  That is a
peculiar fact that ought to prompt some soul-searching on the part of the
Committee, which has been relentlessly critical of intelligence-related
leaks.

But the disclosure did more than just make the White Paper available to
the public and launch a substantial public debate on its contents.  It also
enhanced the ability of the intelligence committees themselves to gain
access to additional classified records on which oversight depends.

Specifically, it was the leak of the White Paper that enabled the belated
disclosure of two classified Office of Legal Counsel memoranda to the
intelligence committees last week.

The causal relationship between the leak and the release of the OLC memos
was made explicit by White House press secretary Jay Carney at a February 7
press gaggle.

"I mean, there has always been some interest, obviously, but there has
been heightened interest.  I think that what you've seen in the -- because
of the public disclosure of the white paper, is that that interest reached
higher levels than in the past, and therefore this decision was made to
make this extraordinary accommodation to provide classified Office of Legal
Counsel advice," Mr. Carney said.

    http://www.fas.org/sgp/news/2013/02/wh020713.html

This statement neatly illustrates the synergy that can exist among robust
national security reporting, public awareness and effective intelligence
oversight.

Yet the Senate Intelligence Committee in particular seems to have lost
sight of the benefits for its own work of press attention and public
engagement. The February 7 hearing on the nomination of John Brennan to be
Director of CIA marked the end of a period of more than one year -- dating
from January 31, 2012 -- without a public hearing.  This may be an
unprecedented hiatus in the history of the Senate Committee.  (The House
Intelligence Committee has held public hearings more frequently.)  In light
of last week's events, the nearly exclusive emphasis on closed hearings
should perhaps be reconsidered.

DOJ WHITE PAPER RELEASED AS A MATTER OF "DISCRETION"

Late Friday afternoon, the Department of Justice released an official copy
of its White Paper on lethal targeting of Americans to Freedom of
Information Act requesters, including FAS and Truthout.org, several days
after it had been leaked to the press.

    http://www.fas.org/irp/eprint/doj-lethal.pdf

The official version appears to be identical to the document posted by NBC
News, except that it contains a notation on the first page stating "Draft
November 8, 2011." (It also lacks the heavy-handed NBC watermark.)

"The Department has determined that the document responsive to your
request is appropriate for release as a matter of agency discretion," wrote
Melanie Ann Pustay, director of the Office of Information Policy at the
Department of Justice.

        http://www.fas.org/sgp/news/2013/02/oip-020813.pdf

This is a surprising statement, because as recently as two or three weeks
earlier, the Department had said exactly the opposite.

"The document is protected by the deliberative process privilege, and is
not appropriate for discretionary release at this time," wrote Paul Colborn
of the DoJ Office of Legal Counsel in a January 23, 2013 denial letter to
the New York Times.

   http://documentcloud.org/documents/566817-white-paper-foia-denial.html

What changed in the interim?  Obviously, the fact that the document leaked
-- and had already been read by most people who cared to do so -- altered
DoJ's calculation.  The decision to cease withholding the document in light
of its public availability displays some minimal capacity for
reality-testing.  To continue to insist that the document was protected and
exempt from release would have been too absurd.

But the Freedom of Information Act process is supposed to meet a higher
standard than "not absurd," and in this case it failed to do so.

According to a FOIA policy statement issued by Attorney General Eric
Holder in 2009, "an agency should not withhold information simply because
it may do so legally.  I strongly encourage agencies to make discretionary
disclosures of information. An agency should not withhold records merely
because it can demonstrate, as a technical matter, that the records fall
within the scope of a FOIA exemption."

The Attorney General's policy cited President Obama's own statement on
FOIA which declared that "The Government should not keep information
confidential merely because public officials might be embarrassed by
disclosure, because errors and failures might be revealed, or because of
speculative or abstract fears."

The pre-leak withholding of the White Paper on targeted killing appears to
have been inconsistent with both policy statements.  It is now clear that
only "speculative or abstract fears" were at issue, not actual hazards.

Was the release of the memo "a threat to national security"?  A reporter
asked that question at the White House press briefing on February 5. "No.
No," said Press Secretary Jay Carney.  "It wasn't designed for public
release, but it's an unclassified document."

"And since it is out there," he added, "you should read it."

    http://www.fas.org/sgp/news/2013/02/wh020513.html

Last week, Reps. Darrell Issa and Elijah Cummings of the House Committee
on Oversight and Government Reform asked the Department of Justice to
explain several apparent inconsistencies between FOIA policy and actual
practice.

"The Committee seeks information about a number of issues including what
many term as outdated FOIA regulations, exorbitant and possibly illegal fee
assessments, FOIA backlogs, the excessive use and abuse of exemptions, and
dispute resolution services," they wrote in a February 4 letter.

        http://www.fas.org/sgp/congress/2013/ogr-oip.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – US MILITARY CASUALTY STATISTICS, AND MORE FROM CRS

A sobering compilation of statistics on injuries sustained by U.S.
military personnel in Iraq and Afghanistan was updated this week by the
Congressional Research Service based in part on data that CRS gathered from
the Pentagon.

"This report includes statistics on post-traumatic stress disorder (PTSD),
traumatic brain injury (TBI), amputations, evacuations, and the
demographics of casualties," the CRS report said. "Some of these statistics
are publicly available at the Department of Defense's (DOD's) website,
whereas others have been obtained through contact with experts at DOD."

See "U.S. Military Casualty Statistics: Operation New Dawn, Operation
Iraqi Freedom, and Operation Enduring Freedom," February 5, 2013:

        http://www.fas.org/sgp/crs/natsec/RS22452.pdf

Another newly updated CRS report presents an informative and diverting
account of politics in China.

"China's Communist Party dominates state and society in China, is
committed to maintaining a permanent monopoly on power, and is intolerant
of those who question its right to rule. Nonetheless, analysts consider
China's political system to be neither monolithic nor rigidly hierarchical.
Jockeying among leaders and institutions representing different sets of
interests is common at every level of the system."

See "Understanding China's Political System," January 31, 2013:

        http://www.fas.org/sgp/crs/row/R41007.pdf

And for good measure there is a CRS report on the legal foundation for
public access to government records.  See "Access to Government Information
In the United States: A Primer," January 16, 2013:

        http://www.fas.org/sgp/crs/secrecy/97-71.pdf

There is no legal foundation that would guarantee public access to CRS
reports.  So they have to be obtained through alternate channels.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – SPOTLIGHT ON DOD SPECIAL ACCESS PROGRAMS

The procedures for establishing, managing and overseeing special access
programs (SAPs) in the Department of Defense are spelled out in an updated
DoD Instruction that was issued yesterday.  See "Management,
Administration, and Oversight of DoD Special Access Programs," DoD
Instruction 5205.11, February 6, 2013.

        http://www.fas.org/irp/doddir/dod/i5205_11.pdf

A special access program is a classified program that employs security
measures above and beyond those that would normally be used to protect
ordinary (or "collateral") classified information. Such measures may
include special eligibility reviews, polygraph testing, cover, and other
controls on information.  Within DoD, SAPs fall into three broad topical
categories: intelligence, acquisition, and operations and support.

DoD SAPs have been a focus of controversy in the past, because their
intensive secrecy seemed to foster mismanagement.  There were massive,
multi-billion dollar failures (e.g., the aborted A-12 naval aircraft
program) as well as the occasional eccentricity (e.g., the Timber Wind
nuclear powered rocket for anti-ballistic missile missions), both of which
triggered Inspector General audits.

        http://www.dodig.mil/Audit/Audit2/91-059.pdf

        http://www.fas.org/sgp/othergov/dod/tw.pdf

Because of those kinds of missteps, "The special access classification
system... is now adversely affecting the national security it is intended
to support," the House Armed Services Committee concluded in 1991 (H.Rept.
102-60, p. 101).

But such concerns are expressed less frequently today. This is partly
because of changes in Congress, but also because the administration of
special access programs at the Pentagon has become less improvisational and
freewheeling, and more standardized. (Whether they are also more successful
is impossible to say.)

The newly updated DoD Instruction defines the SAP "governance structure,"
which consists of a multi-level SAP Oversight Committee (SAPOC), the Senior
Review Group (SRG), and the SAP Senior Working Group (SSWG).

The Instruction also sheds light on the hierarchical structure of some
SAPs, which are in effect SAPs within SAPs: "DoD SAPs may include
subordinate activities identified as, in descending order, compartments,
sub-compartments, and projects."

There is also another SAP hierarchy along an axis of sensitivity.
"Acknowledged SAPs," whose existence may be admitted and made known to
others, are the least sensitive.  "Unacknowledged SAPs" (such as Timber
Wind once was) are more sensitive and cannot be referenced. Their very
existence is a classified fact.  But both of those categories must be
reported to Congress.  "Waived SAPs" are the most sensitive of special
access programs, and they are exempted by statute (10 USC 119e) from normal
congressional notification requirements.  In such cases, only eight senior
members of the congressional defense committees may be advised of the
program.

DoD's SAPs are not to be confused with the intelligence community's
Controlled Access Programs (CAPs), which serve a similar function.  An
official within the Office of the Under Secretary of Defense (Intelligence)
is responsible for "deconflict[ing] the names and abbreviations for DoD's
SAPs and DNI's CAPs."

It is noteworthy that the new DoD Instruction on SAP management is a
public document.  It rescinds and replaces a 1997 Instruction that was
considered too sensitive for public release.

BRENNAN: "PERHAPS" CLASSIFICATION SYSTEM IS OUTDATED

Among the questions submitted to DCIA-nominee John Brennan by the Senate
Intelligence Committee in advance of his much-anticipated confirmation
hearing this afternoon was one about classification policy.

        http://www.intelligence.senate.gov/

A recent report to the President from the Public Interest Declassification
Board termed the national security classification system "outdated," the
Committee noted.  Does Mr. Brennan agree?

"I would say that the classification system is perhaps outdated in some
respects and the recommendations from the PIDB report warrant further
consideration," he replied (Question 30). "If confirmed as Director, I
would review the PIDB's conclusions and would be glad to get back to the
Committee with my views."

        http://www.fas.org/irp/congress/2013_hr/brennan-preh.pdf

In other words, he seemed to say, one of the cornerstones of intelligence
as practiced today may be obsolete, at least "in some respects." But I have
nothing to say about that right now. Let's talk about it after I am
confirmed.

VETERANS AND HOMELESSNESS, AND MORE FROM CRS

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

Argentina's Defaulted Sovereign Debt: Dealing with the "Holdouts",
February 6, 2013:

        http://www.fas.org/sgp/crs/row/R41029.pdf

Honduras-U.S. Relations, February 5, 2013:

        http://www.fas.org/sgp/crs/row/RL34027.pdf

Veterans and Homelessness, February 4, 2013:

        http://www.fas.org/sgp/crs/misc/RL34024.pdf

VA Housing: Guaranteed Loans, Direct Loans, and Specially Adapted Housing
Grants, February 4, 2013:

        http://www.fas.org/sgp/crs/misc/R42504.pdf

Agricultural Conservation: A Guide to Programs, February 5, 2013:

        http://www.fas.org/sgp/crs/misc/R40763.pdf

The National Flood Insurance Program: Status and Remaining Issues for
Congress, February 6, 2013:

        http://www.fas.org/sgp/crs/misc/R42850.pdf

Appropriations Subcommittee Structure: History of Changes from 1920 to
2013, February 5, 2013:

        http://www.fas.org/sgp/crs/misc/RL31572.pdf

U.S. Special Operations Forces (SOF): Background and Issues for Congress,
February 6, 2013:

        http://www.fas.org/sgp/crs/natsec/RS21048.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – JUDGE WALTON NAMED PRESIDING JUDGE OF FISA COURT

Chief Justice of the United States John Roberts has appointed D.C.
District Judge Reggie B. Walton to serve as Presiding Judge of the Foreign
Intelligence Surveillance Court, effective February 22, 2013.

        http://www.dcd.uscourts.gov/dcd/walton

Judge Walton, who has been a member of the FIS Court since May 2007, will
replace Presiding Judge John D. Bates, whose term expires on February 21. 
Judge Walton's own term on the Court extends through May 18, 2014.  His
appointment as Presiding Judge was confirmed by Sheldon Snook, spokesman
for the Court.

The Foreign Intelligence Surveillance Court reviews and authorizes
applications for electronic surveillance and physical search under the
Foreign Intelligence Surveillance Act.  A roster of the current court
membership is here:

        http://www.fas.org/irp/agency/doj/fisa/court2013.html

The Court's operation under the recently renewed FISA Amendments Act was
discussed in "Reauthorization of the FISA Amendments Act," Congressional
Research Service, January 2, 2013:

        http://www.fas.org/sgp/crs/intel/R42725.pdf

In his regular capacity as district court judge, Judge Walton has presided
over a number of celebrated cases including U.S. v. Libby, U.S. v. Roger
Clemens, and Hatfill v. John Ashcroft.  Less famously, he also heard
Aftergood v. National Reconnaissance Office, a 2005 Freedom of Information
Act case in which he ruled in favor of the plaintiff, myself.  That case
inaugurated the now-routine public release of unclassified intelligence
agency budget justification records.

http://www.fas.org/blog/secrecy/2006/07/fas_wins_foia_lawsuit_over_nro.html

MENTAL DISORDERS AMONG IRAQ VETERANS, AND MORE FROM CRS

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

Mental Disorders Among OEF/OIF Veterans Using VA Health Care: Facts and
Figures, February 4, 2013:

        http://www.fas.org/sgp/crs/misc/R41921.pdf

Evaluating the "Past Performance" of Federal Contractors: Legal
Requirements and Issues, February 4, 2013:

        http://www.fas.org/sgp/crs/misc/R41562.pdf

Increasing the Social Security Payroll Tax Base: Options and Effects on
Tax Burdens, February 5, 2013:

        http://www.fas.org/sgp/crs/misc/RL33943.pdf

Water Resource Issues in the 113th Congress, January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R42947.pdf

Upcoming Rules Pursuant to the Patient Protection and Affordable Care Act:
The 2012 Unified Agenda, February 1, 2013:

        http://www.fas.org/sgp/crs/misc/R42946.pdf

The American Taxpayer Relief Act of 2012: Modifications to the Budget
Enforcement Procedures in the Budget Control Act, February 4, 2013:

        http://www.fas.org/sgp/crs/misc/R42949.pdf

United Nations System Funding: Congressional Issues, January 15, 2013:

        http://www.fas.org/sgp/crs/row/RL33611.pdf

U.S. Foreign Aid to the Palestinians, January 18, 2013:

        http://www.fas.org/sgp/crs/mideast/RS22967.pdf

European Union Enlargement, February 4, 2013:

        http://www.fas.org/sgp/crs/row/RS21344.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – KEEPING SECRETS FROM CONGRESS

When government information is classified or otherwise withheld from
release, the possibility of government accountability to the public is
undermined.  But when the executive branch withholds crucial information
from Congress, that may pose an even more fundamental challenge to
democratic governance.

"The administration has refused to share Presidential Policy Directive 11
(PPD 11) with the Congress," said Sen. Richard Lugar last year at a hearing
of the Senate Foreign Relations Committee which has just been published. 
PPD 11 is the Obama Administration document that set the terms of reference
for the Nuclear Posture Review Implementation Study, which will dictate the
future size and configuration of the U.S. nuclear arsenal.

Sen. Lugar voiced a polite objection to this unilateral act of Obama
Administration secrecy:  "I simply would say that our country is strongest
and our diplomacy is most effective when nuclear policy is made by
deliberate decisions in which both the legislative and executive branches
fully participate."

        http://www.fas.org/irp/congress/2012_hr/implement.html

The withholding of presidential directives from Congress is not a new
practice.  A 1992 investigation by the General Accounting Office found that
Congress had not been routinely notified of the preparation or issuance of
national security directives and that none of the relevant congressional
committees "are regularly receiving copies" of such directives.

It is known that presidential directives can be used to establish national
policy, to direct the implementation of policy, and to authorize the
commitment of government resources. But without access to detailed
information about the directives, GAO reported in 1992, "it is impossible
to satisfactorily determine how many NSDs [national security directives]
issued make and implement U.S. policy and what those policies are."

On the other hand, unlike many executive orders, presidential directives
"do not appear to be issued under statutory authority conferred by Congress
and thus do not have the force and effect of law," GAO said. Certainly such
directives cannot limit congressional authority or power to legislate.

        http://www.fas.org/irp/offdocs/gao-nsiad-92-72.pdf

Yesterday eleven Senators wrote to President Obama to ask him to direct
the release to Congress "the secret legal opinions outlining your authority
to authorize the killing of Americans in the course of counterterrorism
operations."

"It is vitally important... for Congress and the American public to have a
full understanding of how the executive branch interprets the limits and
boundaries of this authority, so that Congress and the public can decide
whether this authority has been properly defined, and whether the
President's power to deliberately kill American citizens is subject to
appropriate limitations and safeguards," the Senators wrote.

        http://www.fas.org/irp/congress/2013_cr/olc-lethal.pdf

Later in the day, Mike Isikoff of NBC News obtained a confidential
Department of Justice White Paper entitled "Lawfulness of a Lethal
Operation Directed Against a U.S. Citizen Who Is a Senior Operational
Leader of Al-Qa'ida or An Associated Force."

        http://www.fas.org/irp/eprint/doj-lethal.pdf

NBC said the document had been "provided to members of the Senate
Intelligence and Judiciary committees in June by administration officials
on the condition that it be kept confidential and not discussed publicly." 
This non-disclosure condition, now abrogated, is difficult to understand on
national security grounds, but easier to comprehend as an attempt to manage
or evade public controversy.

At any rate, the government's legal argument, such as it is, is now on the
public record.  The most important task before Congress is not to plead for
release of additional, underlying source documents, but to respond as a
legislative body to the Administration's now-public assertion of its
position.  To do nothing is to endorse it.

AN INTELLIGENCE HISTORY OF THE 1973 ARAB-ISRAELI WAR

The Central Intelligence Agency has published a series of essays on
intelligence and the 1973 Arab-Israeli war, to coincide with a symposium on
the subject held last week at the Nixon Presidential Library.

https://www.cia.gov/library/publications/historical-collection-publications/

The publication itself ("President Nixon and the Role of Intelligence in
the 1973 Arab-Israeli War") is a welcome addition to the literature.  But
it also "includes some embarrassing errors," wrote Amir Oren in the Israeli
paper Ha'aretz on February 3 ("CIA report on Yom Kippur War: Israel had
nuclear arsenal"). 

"For example," Oren wrote, "in the photograph labeled 'An Egyptian soldier
holding up a portrait of President Sadat,' the soldier in question and the
two soldiers flanking him are clearly Israelis, as evidenced by the 'IDF'
stamped visibly on their shirts."

"The editors of the new study also err in attributing two things to
lessons from the Six-Day War: the faulty prevailing conception among
Israeli Military Intelligence 'that Israel would have at least 48 hours'
warning before an invasion' and that Sadat wouldn't start a war before
acquiring fighter planes. Furthermore, it seems they also confused war
analyst Maj. Gen. (ret.) Chaim Herzog with one of his sons, Brig. Gen.
(ret.) Mike Herzog," he added.

If these discrepancies are cause for embarrassment, then it is the kind of
embarrassment that should be willingly endured. To put it another way,
exposing such work to external review and criticism is an unsurpassed way
of identifying and correcting errors.

A REPORT ON CIA DETENTION AND RENDITION PROGRAMS

In the absence of an official public account of post-9/11 U.S.
counterterrorism programs, Americans (and others) must rely on unofficial
accounts.

"Globalizing Torture" is a new report from the Open Society Justice
Initiative, authored by Amrit Singh.  It is said to provide "the most
comprehensive account yet assembled of the human rights abuses associated
with CIA secret detention and extraordinary rendition operations. It
details for the first time what was done to the 136 known victims, and
lists the 54 foreign governments that participated in these operations. It
shows that responsibility for the abuses lies not only with the United
States but with dozens of foreign governments that were complicit."

        http://www.opensocietyfoundations.org/

It was reported in "Report Says 54 Countries Helped CIA After 9/11" by
Scott Shane, New York Times, February 4.

THE JOINT LIGHT TACTICAL VEHICLE, AND MORE FROM CRS

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

Joint Light Tactical Vehicle (JLTV): Background and Issues for Congress,
February 4, 2013:

        http://www.fas.org/sgp/crs/weapons/RS22942.pdf

U.S.-India Security Relations: Strategic Issues, January 24, 2013:

        http://www.fas.org/sgp/crs/row/R42948.pdf

Multilateral Development Banks: U.S. Contributions FY2000-FY2013, February
1, 2013:

        http://www.fas.org/sgp/crs/misc/RS20792.pdf

IMF Reforms: Issues for Congress, February 1, 2013:

        http://www.fas.org/sgp/crs/misc/R42844.pdf

Medicare, Medicaid, and Other Health Provisions in the American Taxpayer
Relief Act of 2012, January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R42944.pdf

Hemp as an Agricultural Commodity, December 18, 2012:

        http://www.fas.org/sgp/crs/misc/RL32725.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – ARMY MANUAL HIGHLIGHTS ROLE OF “INFORM AND INFLUENCE ACTIVITIES”

The use of information-related tools to support military operations and to
help shape their outcome is discussed in a newly updated Army manual on
what are now called "Inform and Influence Activities."

Inform and influence activities (or IIA) refers to "the integration of
designated information-related capabilities in order to synchronize themes,
messages, and actions with operations to inform United States and global
audiences, influence foreign audiences, and affect adversary and enemy
decisionmaking."

In some circumstances, the manual says, information operations can play a
decisive role.

"Activities occurring in, through, or by means of the information
environment have a consequential effect on an operational environment and
can impact military operations and outcomes. Therefore, commanders and
their staffs must understand their operational environments completely.
This understanding includes the information environment and the potential
impacts it can have on current and planned military operations."

But the effectiveness of such activities is naturally limited by the
realities of the military engagement.

"Soldiers' actions powerfully influence the credibility of IIA. Visible
actions coordinated with carefully chosen, credible words influence
audiences more than uncoordinated or contradictory actions and words. All
audiences--local and regional as well as adversary and enemy--compare the
friendly force's message with its actions. Consistency contributes to the
success of friendly operations by building trust and credibility.
Conversely, if actions and messages are inconsistent, friendly forces lose
credibility. Loss of credibility makes land forces vulnerable to enemy and
adversary information or countermessaging and places Army forces at a
disadvantage."

"Aligning information-related capabilities with the overall operation
ensures that messages are consistent with the forces' actions to amplify
the credibility of those messages. It is paramount that inform and
influence efforts complement not contradict. Failing to do so jeopardizes
credibility."

The updated Army manual replaces a 2003 document titled "Information
Operations."

"The publication does not address every information-related capability
commanders can use to help shape their complex operational environments. It
should, however, generate introspection and provide just enough guidance to
facilitate flexibility and innovative approaches for commanders to execute
the art of command to inform and influence."

See "Inform and Influence Activities," U.S. Army Field Manual 3-13,
January 2013:

        http://www.fas.org/irp/doddir/army/fm3-13.pdf

AFTERMATH OF DEEPWATER HORIZON OIL SPILL, AND MORE FROM CRS

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

Deepwater Horizon Oil Spill: Recent Activities and Ongoing Developments,
January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R42942.pdf

The Unemployed and Job Openings: A Data Primer, January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R42943.pdf

Congressional Redistricting and the Voting Rights Act: A Legal Overview,
January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R42482.pdf

Health Insurance Exchanges Under the Patient Protection and Affordable
Care Act (ACA), January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R42663.pdf

Medicare Primer, January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R40425.pdf

U.S. Government Agencies Involved in Export Promotion: Overview and Issues
for Congress, January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R41495.pdf

Sovereign Debt in Advanced Economies: Overview and Issues for Congress,
January 31, 2013:

        http://www.fas.org/sgp/crs/misc/R41838.pdf

Ukraine: Current Issues and U.S. Policy, January 31, 2013:

        http://www.fas.org/sgp/crs/row/RL33460.pdf

United Nations Regular Budget Contributions: Members Compared, 1990-2010,
January 15, 2013:

        http://www.fas.org/sgp/crs/row/RL30605.pdf

U.S. and South Korean Cooperation in the World Nuclear Energy Market:
Major Policy Considerations, January 28, 2013:

        http://www.fas.org/sgp/crs/row/R41032.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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Secrecy News is archived at:
     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – FORMER CIA OFFICER KIRIAKOU SENTENCED FOR LEAK

Former CIA officer John Kiriakou was sentenced today to 30 months in
prison for a violation of the Intelligence Identities Protection Act after
he pleaded guilty to one count of identifying a covert agent.

Although the sentence is less than that prescribed by federal sentencing
guidelines, the government said that it considers the reduced penalty
"reasonable."

In a presentencing memorandum for the defense, Mr. Kiriakou's attorneys
said that his offense should be seen in the context of his lifelong
commitment "to public service and the defense of America's national
security."

        http://www.fas.org/sgp/jud/kiriakou/012413-defmem.pdf

"In the course of his service to the United States and the Central
Intelligence Agency, Mr. Kiriakou placed himself in harm's way on countless
occasions, earning the CIA's Exceptional Service Award no fewer than ten
times," the defense memorandum said.

Although Mr. Kiriakou accepted full responsibility for his actions, the
defense said that he had been duped into making the unauthorized disclosure
that led to his prosecution.

"In 2006, Journalist A told Mr. Kiriakou that he was working on a book
about the Abu Omar rendition in Milan. That was false. Journalist A has
never published a book on that subject and the defense is aware of no
evidence that he was ever working on one."

"In reality, unknown to Mr. Kiriakou, Journalist A was acting as a private
investigator on behalf of lawyers representing terrorist detainees in
Guantanamo Bay, Cuba, and was forwarding the information he received from
Mr. Kiriakou, as well as information he received from many other
individuals, to another private investigator working with the detainees'
lawyers. Mr. Kiriakou now realizes that he made a very serious mistake in
passing any information to Journalist A, but he would not have done so had
he known how Journalist A would make use of that information," the defense
memorandum said.

The defense noted that "Mr. Kiriakou has fully and forthrightly accepted
responsibility for his actions and recognizes the seriousness of the crime
to which he has pled guilty.  Yet while many will never know Mr. Kiriakou
apart from this prosecution, the incident that led to this moment cannot
undo the reality of Mr. Kiriakou's life in full-- a life dedicated to the
values of freedom, decency, public service, and love of country.  As the
government concedes, although Mr. Kiriakou's crime was unquestionably
serious, he was never motivated by any desire to harm the United States,
national security, the CIA's critical mission abroad, or any individual
person."

A petition asking President Obama to pardon Mr. Kiriakou or commute his
sentence has already been signed by thousands of supporters.

After Vice Presidential aide Scooter Libby was convicted of perjury in
connection with the unauthorized disclosure of the identity of CIA officer
Valerie Plame in 2007 and sentenced to 30 months in jail, his sentence was
promptly commuted by President George W. Bush.

INTERNATIONAL TAX HAVENS, AND MORE FROM CRS

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

Tax Havens: International Tax Avoidance and Evasion, January 23, 2013:

        http://www.fas.org/sgp/crs/misc/R40623.pdf

An Overview of the Tax Provisions in the American Taxpayer Relief Act of
2012, January 20, 2013:

        http://www.fas.org/sgp/crs/misc/R42894.pdf

Receipt of Unemployment Insurance by Higher-Income Unemployed Workers
("Millionaires"), January 23, 2013:

        http://www.fas.org/sgp/crs/misc/R42643.pdf

Summary Report: Congressional Action on the FY2013 Disaster Supplemental,
January 22, 2013:

        http://www.fas.org/sgp/crs/misc/R42892.pdf

FY2013 Supplemental Funding for Disaster Relief: Summary and
Considerations for Congress, January 23, 2013:

        http://www.fas.org/sgp/crs/misc/R42869.pdf

Congressional Commissions: Overview, Structure, and Legislative
Considerations, January 22, 2013:

        http://www.fas.org/sgp/crs/misc/R40076.pdf

Congressional Careers: Service Tenure and Patterns of Member Service,
1789-2013, January 3, 2013:

        http://www.fas.org/sgp/crs/misc/R41545.pdf

Global Security Contingency Fund (GSCF): Summary and Issue Overview,
January 22, 2013:

        http://www.fas.org/sgp/crs/row/R42641.pdf

Bosnia and Herzegovina: Current Issues and U.S. Policy, January 24, 2013:

        http://www.fas.org/sgp/crs/row/R40479.pdf

Mexico's New Administration: Priorities and Key Issues in U.S.-Mexican
Relations, January 16, 2013:

        http://www.fas.org/sgp/crs/row/R42917.pdf

Reauthorization of the FISA Amendments Act, January 2, 2013:

        http://www.fas.org/sgp/crs/intel/R42725.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – PROSECUTORIAL DISCRETION IN IMMIGRATION CASES

"Under the Federal criminal justice system, the prosecutor has wide
latitude in determining when, whom, how, and even whether to prosecute for
apparent violations of Federal criminal law," says the U.S. Attorneys'
Manual. "The prosecutor's broad discretion in such areas as initiating or
foregoing prosecutions, selecting or recommending specific charges, and
terminating prosecutions by accepting guilty pleas has been recognized on
numerous occasions by the courts." (Chapter 9-27).

Although prosecutors enjoy broad discretion concerning whether and whom to
prosecute, there are limits, the Manual says, and consequences for
prosecutorial overreaching:  "Serious, unjustified departures from the
principles set forth herein are [to be] followed by such remedial action,
including the imposition of disciplinary sanctions, when warranted, as are
deemed appropriate."

(After the execution of Socrates, remorseful Athenians rose up against his
three prosecutors, according to the uncorroborated account of Diogenes
Laertius.  Meletus was stoned to death, while Anytus and Lycon were
banished.)

The exercise of prosecutorial discretion is discussed in a new report from
the Congressional Research Service, which focuses particularly on
immigration cases.

The report "addresses the constitutional and other foundations for the
doctrine of prosecutorial discretion, as well as the potential ways in
which prosecutorial discretion may be exercised in the immigration
context." It also considers "potential constitutional, statutory, and
administrative constraints upon the exercise of prosecutorial discretion."

See "Prosecutorial Discretion in Immigration Enforcement: Legal Issues,"
January 17, 2013:

        http://www.fas.org/sgp/crs/misc/R42924.pdf

Some other new and updated CRS products that Congress has not authorized
CRS to release to the public include these:

Chemical Facility Security: Issues and Options for the 113th Congress,
January 14, 2013:

        http://www.fas.org/sgp/crs/homesec/R42918.pdf

Nonstrategic Nuclear Weapons, December 19, 2012:

        http://www.fas.org/sgp/crs/nuke/RL32572.pdf

The Protection of Classified Information: The Legal Framework, January 10,
2013:

        http://www.fas.org/sgp/crs/secrecy/RS21900.pdf

Crisis in Mali, January 14, 2013:

        http://www.fas.org/sgp/crs/row/R42664.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – 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.

        http://www.fas.org/irp/eprint/diffusion.pdf

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.

        http://www.fas.org/sgp/othergov/doe/excess.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – HOMELAND SECURITY HAS TOO MANY DEFINITIONS, SAYS CRS

The existence of multiple, overlapping and inconsistent definitions of the
term "homeland security" reflects and reinforces confusion in the homeland
security mission, according to a newly updated report from the
Congressional Research Service.

"Ten years after the September 11, 2001, terrorist attacks, the U.S.
government does not have a single definition for 'homeland security.'
[Instead,] different strategic documents and mission statements offer
varying missions that are derived from different homeland security
definitions."

Most official definitions of homeland security include terrorism
prevention.  Many but not all encompass disaster response. Most do not
include border security, or maritime security, or immigration matters, or
general resilience, though some do.

"An absence of consensus about the inclusion of these policy areas may
result in unintended consequences for national homeland security
operations," the CRS report said. "For example, not including maritime
security in the homeland security definition may result in policymakers,
Congress, and stakeholders not adequately addressing maritime homeland
security threats, or more specifically being able to prioritize federal
investments in border versus intelligence activities."

"The competing and varied definitions in these documents may indicate that
there is no succinct homeland security concept. Without a succinct homeland
security concept, policymakers and entities with homeland security
responsibilities may not successfully coordinate or focus on the highest
prioritized or most necessary activities."

"At the national level, there does not appear to be an attempt to align
definitions and missions among disparate federal entities," CRS said.

Without a uniform definition, a coherent strategy cannot be formulated and
homeland security policy is rudderless.  "Potentially, funding is driving
priorities rather than priorities driving the funding."

Speaking of funding, there are thirty federal departments, agencies, and
entities receiving annual homeland security funding excluding the
Department of Homeland Security, the CRS report said.  In fact,
approximately 50% of homeland security funding is appropriated for agencies
other than the Department of Homeland Security.

See "Defining Homeland Security: Analysis and Congressional
Considerations," January 8, 2013:

        http://www.fas.org/sgp/crs/homesec/R42462.pdf

DESALINATION, DNA TESTING, AND MORE FROM CRS

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

Desalination and Membrane Technologies: Federal Research and Adoption
Issues, January 8, 2013:

        http://www.fas.org/sgp/crs/misc/R40477.pdf

The Corporation for Public Broadcasting: Federal Funding and Issues,
January 8, 2013:

        http://www.fas.org/sgp/crs/misc/RS22168.pdf

DNA Testing in Criminal Justice: Background, Current Law, Grants, and
Issues, December 6, 2012:

        http://www.fas.org/sgp/crs/misc/R41800.pdf

Environmental Considerations in Federal Procurement: An Overview of the
Legal Authorities and Their Implementation, January 7, 2013:

        http://www.fas.org/sgp/crs/misc/R41297.pdf

Responsibility Determinations Under the Federal Acquisition Regulation:
Legal Standards and Procedures, January 4, 2013:

        http://www.fas.org/sgp/crs/misc/R40633.pdf

Social Security: The Windfall Elimination Provision (WEP), January 8,
2013:

        http://www.fas.org/sgp/crs/misc/98-35.pdf

Social Security: The Government Pension Offset (GPO), January 8, 2013:

        http://www.fas.org/sgp/crs/misc/RL32453.pdf

Economic Growth and the Unemployment Rate, January 7, 2013:

        http://www.fas.org/sgp/crs/misc/R42063.pdf

Overview and Issues for Implementation of the Federal Cloud Computing
Initiative: Implications for Federal Information Technology Reform
Management, January 4, 2013:

        http://www.fas.org/sgp/crs/misc/R42887.pdf

The National Telecommunications and Information Administration (NTIA):
Issues for the 113th Congress, January 3, 2013:

        http://www.fas.org/sgp/crs/misc/R42886.pdf

Military Medical Care: Questions and Answers, January 7, 2013:

        http://www.fas.org/sgp/crs/misc/RL33537.pdf

Israel: 2013 Elections Preview, January 8, 2013:

        http://www.fas.org/sgp/crs/mideast/R42888.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS –

The Foreign Intelligence Surveillance Court (FISC), which authorizes
intelligence surveillance activities, acknowledged in 2007 that it has
issued "legally significant decisions that remain classified and have not
been released to the public."

In 2010, the Office of the Director of National Intelligence and the
Department of Justice undertook to declassify those Court rulings, but
since then none has been released. Why not?

"We tried," a senior intelligence agency official said, but the rulings
were hard to declassify. After redacting classified operational information
and other sensitive details, no intelligible text of any consequence
remained, according to this official.

The Department of Justice made a similar assertion years ago in response
to a lawsuit brought by the ACLU, stating that "Any legal discussion that
may be contained in these materials would be inextricably intertwined with
the operational details of the authorized surveillance."

Although the 2010 declassification initiative has not been formally
cancelled, it is unclear how or why the failure to date to declassify the
FISC orders would change.

In the debate over reauthorization of the FISA Amendments Act, Sen. Jeff
Merkley offered an amendment that was intended to break the current
impasse.  If a surveillance court order could not be declassified, the
amendment proposed, then an unclassified summary of the order should be
prepared.  (If even that were not possible, the amendment would have
required a report on the status of the declassification process.)

        http://www.fas.org/irp/congress/2012_cr/faa-amend.html#fisc

The Merkley amendment, like others, was rejected by the full Senate.  But
Senator Dianne Feinstein, the Intelligence Committee chair, offered her
assistance to Sen. Merkley in advancing public access to FIS Court
opinions.

"If the opinion cannot be made public, hopefully a summary of the opinion
can," Sen. Feinstein said on December 27. "And I have agreed with Senator
Merkley to work together on this issue."

But the intelligence agency official said that unclassified summaries of
surveillance court decisions were probably not a satisfactory alternative. 
A summary written by the Department of Justice would not be a statement of
the court's opinion at all, the official said.  At best, it would represent
the Administration's own understanding of what the court had ruled,
paraphrased for public release.

What if the Court itself were to prepare its opinions in a "tearline"
format, with a general statement of its findings presented separately from
the more highly classified specifics of the case under discussion?  Would
that not facilitate declassification and release of the court rulings?

"That might work," the official said.  However, he said, it would be
"awkward" for agencies to presume to tell the court how to format its
opinions.

But it would not be awkward for members of Congress to make such a
request, perhaps in a forthcoming letter referenced by Sen. Feinstein.

"I have offered to Senator Merkley to write a letter requesting
declassification of more FISA Court opinions," she said. "If the letter
does not work, we will do another intelligence authorization bill next
year, and we can discuss what can be added to that bill on this issue."

In the past, a handful of FISA Court opinions have been declassified and
made public, including a FISC opinion dated May 17, 2002, a FIS Court of
Review (FISCR) opinion dated November 18, 2002, and a FISCR opinion dated
August 22, 2008.

NEW PROCEDURES FOR INTELLIGENCE SYSTEM ACQUISITION

The Director of National Intelligence issued a directive last month
prescribing procedures for major system acquisitions by elements of the
intelligence community.

The directive defines a multi-phase process for identifying critical
needs, evaluating alternative paths to meet those needs, and so forth.

See Intelligence Community Directive 115, "Intelligence Community
Capability Requirements Process," December 21, 2012:

        http://www.fas.org/irp/dni/icd/icd-115.pdf

REACHING THE DEBT LIMIT, AND MORE FROM CRS

New and updated reports from the Congressional Research Service which
Congress has directed CRS not to release to the public include the
following.

Reaching the Debt Limit: Background and Potential Effects on Government
Operations, January 4, 2013:

        http://www.fas.org/sgp/crs/misc/R41633.pdf

The "Fiscal Cliff" and the American Taxpayer Relief Act of 2012, January
4, 2012:

        http://www.fas.org/sgp/crs/misc/R42884.pdf

Proposals to Change the Operation of Cloture in the Senate, January 3,
2013:

        http://www.fas.org/sgp/crs/misc/R41342.pdf

International Trade and Finance: Key Policy Issues for the 113th Congress,
January 4, 2013:

        http://www.fas.org/sgp/crs/misc/R42882.pdf

Speakers of the House: Elections, 1913-2013, January 4, 2013:

        http://www.fas.org/sgp/crs/misc/RL30857.pdf

The Endangered Species Act (ESA) and Claims of Property Rights "Takings",
January 7, 2013:

        http://www.fas.org/sgp/crs/misc/RL31796.pdf

The Role of TARP Assistance in the Restructuring of General Motors,
January 3, 2013:

        http://www.fas.org/sgp/crs/misc/R41978.pdf

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, January
4, 2013:

        http://www.fas.org/sgp/crs/row/RL30588.pdf

U.S.-Taiwan Relationship: Overview of Policy Issues, January 4, 2013:

        http://www.fas.org/sgp/crs/row/R41952.pdf

North Korea: U.S. Relations, Nuclear Diplomacy, and Internal Situation,
January 4, 2013:

        http://www.fas.org/sgp/crs/nuke/R41259.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – AN OPEN SOURCE LOOK AT IRAN’S INTELLIGENCE MINISTRY

Iran's Ministry of Intelligence and Security is believed to employ more
than 30,000 intelligence officers and support personnel, making it "one of
the largest and most active intelligence agencies in the Middle East,"
according to a new report from the Federal Research Division of the Library
of Congress.

"The Ministry of Intelligence and Security (MOIS) uses all means at its
disposal to protect the Islamic Revolution of Iran, utilizing such methods
as infiltrating internal opposition groups, monitoring domestic threats and
expatriate dissent, arresting alleged spies and dissidents, exposing
conspiracies deemed threatening, and maintaining liaison with other foreign
intelligence agencies as well as with organizations that protect the
Islamic Republic's interests around the world," the report states.

See "Iran's Ministry of Intelligence and Security: A Profile," December
2012.

        http://www.fas.org/irp/world/iran/mois-loc.pdf

The report was first obtained and reported by Bill Gertz in "Iran Spy
Network 30,000 Strong," Washington Free Beacon, January 3, 2013.

        http://freebeacon.com/iran-spy-network-30000-strong/

The new report provides an informative account of the Ministry's history,
organizational structure, and recruitment practices, as far as these can be
discerned from published sources.

"The information in this report was collected mainly from Farsi and
English journals, online news Web sites, and Iranian blogs," the Preface
states.  (Some older information from the FAS web site is cited at a couple
of points.)

"Needless to say, the Ministry of Intelligence and Security does not
publish information about its activities on Iranian Web sites.
Consequently, in the absence of official government information, this
report occasionally relies on social media, in particular blogs, as a
source of information more than might ordinarily be warranted. The
reliability of blog-based information may be questionable at times, but it
seems prudent to evaluate and present it in the absence of alternatives."

"Every minister of intelligence must hold a degree in ijtihad (the ability
to interpret Islamic sources such as the Quran and the words of the Prophet
and imams) from a religious school, abstain from membership in any
political party or group, have a reputation for personal integrity, and
possess a strong political and management background," the report says.

A newly disclosed U.S. Army intelligence document explains how to
determine whether weapons that were captured in Iraq were manufactured in
Iran.

Iranian weapons systems "have several distinctive visual identification
markings that identify their source" which are described in the Army
publication.  The document was partially declassified last month and was
obtained under the Freedom of Information Act by Matthew Schroeder of the
FAS Arms Sales Monitoring Project.

See "Identifying Small Arms and RPGs Produced in Iran," U.S. Army National
Ground Intelligence Center, 2004.

        http://www.fas.org/irp/world/iran/smallarms.pdf

ARMY DRAWDOWN, SPECIAL OPERATIONS FORCES, MORE FROM CRS

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

Army Drawdown and Restructuring: Background and Issues for Congress,
January 3, 2013:

        http://www.fas.org/sgp/crs/natsec/R42493.pdf

U.S. Special Operations Forces (SOF): Background and Issues for Congress,
January 3, 2013:

        http://www.fas.org/sgp/crs/natsec/RS21048.pdf

The Unified Command Plan and Combatant Commands: Background and Issues for
Congress, January 3, 2013:

        http://www.fas.org/sgp/crs/natsec/R42077.pdf

Internet Domain Names: Background and Policy Issues, January 3, 2013:

        http://www.fas.org/sgp/crs/misc/97-868.pdf

Internet Governance and the Domain Name System: Issues for Congress,
January 2, 2013:

        http://www.fas.org/sgp/crs/misc/R42351.pdf

Federal Regulation of Chemicals in Commerce: An Overview of Issues for the
113th Congress, January 3, 2013:

        http://www.fas.org/sgp/crs/misc/R42879.pdf

Physician Practices: Background, Organization, and Market Consolidation,
January 2, 2013:

        http://www.fas.org/sgp/crs/misc/R42880.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/unsubscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRERCY NEWS – INTELLIGENCE OVERSIGHT STEPS BACK FROM PUBLIC ACCOUNTABILITY

The move by Congress to renew the FISA Amendments Act for five more years
without amendments came as a bitter disappointment to civil libertarians
who believe that the Act emphasizes government surveillance authority at
the expense of constitutional protections.  Amendments that were offered to
provide more public information about the impacts of government
surveillance on the privacy of American communications were rejected by the
Senate on December 27 and 28.

    http://www.fas.org/irp/congress/2012_cr/faa-amend.html

    http://www.fas.org/irp/congress/2012_cr/faa-reauth.html

Beyond the specifics of the surveillance law, the congressional action
appears to reflect a reorientation of intelligence oversight away from
public accountability.  The congressional intelligence committees once
presented themselves as champions of disclosure. They no longer do so.

The first annual report of the Senate Select Committee on Intelligence,
chaired by the late Sen. Daniel K. Inouye, stated in 1977 that "While most
of the work of the Committee is, of necessity, conducted in secrecy, we
believe that even secret activities must be as accountable to the public as
possible."

    http://www.intelligence.senate.gov/pubactivities.html

Of course, the question of how much accountability is "possible" has
always been debatable.  But the basic principle of maximum possible
disclosure was endorsed by subsequent Committee leaders including Sen.
Barry Goldwater and Sen. Daniel P. Moynihan, who also wrote in 1981 that
"intelligence activities should be as accountable as possible to the
public."

In 1999, Senators Richard Shelby and Bob Kerrey affirmed on behalf of the
Intelligence Committee that "as much information as possible about
intelligence activities should be made available to the public."

But in recent years the Committee's periodic statement of principles has
changed in a subtle but significant way.  In its most recent report in
2011, the Committee said it seeks "to provide as much information as
possible about its intelligence oversight activities to the American public
consistent with national security concerns." Instead of disclosure and
public accountability for intelligence activities, the Committee would
promise only to reveal as much as possible about its oversight activities.

What makes this rhetorical shift noteworthy is that it seems to correspond
in broad strokes to a shift in the character and activity of the Committee
away from public accountability for intelligence.  Past Committees did not
always press for public accountability (and were not often successful when
they did), and the current Committee has not been completely indifferent to
it, but there does seem to be a perceptible trend.

The Senate Intelligence Committee used to be at the forefront of debates
over public disclosure of intelligence.  Demands for declassification --
often for intelligence budget information -- were a normal feature of
annual intelligence legislation in the 1990s. Public hearings, including
hearings with non-governmental witnesses, were commonplace.  To varying
degrees, Senators like Daniel Moynihan, Howard Metzenbaum, Arlen Specter,
Bob Kerrey, and others were thorns in the side of U.S. intelligence
agencies in support of public disclosure.

Over the past decade, however, the Committee's priorities appear to have
changed, to the detriment of public accountability.  In fact, despite the
Committee's assurance in its annual reports, public disclosure even of the
Committee's own oversight activities has decreased.

In 2012, the Committee held only one public hearing, despite the
prevalence of intelligence-related public controversies.  That is the
smallest number of public hearings the Committee has held in at least 25
years and possibly ever.  A non-governmental witness has not been invited
to testify at an open Committee hearing since 2007.

(A congressional official countered that in recent years confirmation
hearings had provided the occasion for most public hearings by the
Intelligence Committee, and that in 2012 there were simply no nominees
requiring hearings.  Meanwhile, the official noted, the Committee did
include a provision to reauthorize the Public Interest Declassification
Board in its markup of the 2013 intelligence bill.  And the Committee is
engaged with agency Inspectors General that are reviewing classification
practices in the intelligence community and elsewhere.  The Committee's own
web site has also been usefully supplemented with hearing records and
reports dating back to the 1970s.)

When annual disclosure of the intelligence budget total did finally become
a routine occurrence in 2007, it was principally through the legislative
efforts of Senators Joe Lieberman and Susan Collins of the Senate Homeland
Security Committee, not the Intelligence Committee.  Similarly, efforts to
strengthen oversight of intelligence by the Government Accountability
Office were led by Senator Daniel Akaka, again from outside the
Intelligence Committee.

(The Intelligence Committee did, however, legislate a requirement in 2010
for disclosure of the budget request for the National Intelligence Program.
 And it was cautiously supportive of an expanded role for GAO in
intelligence oversight.)

Most recently, the Intelligence Committee conducted a multi-year
investigation of the CIA's post-9/11 detention and interrogation program. 
It is, said Senator Dianne Feinstein, the Intelligence Committee chair, "by
far the most important oversight activity ever conducted by this
committee."  But the resulting report "will remain classified and is not
being released in whole or in part at this time," she said December 13. 
Its importance is evidently independent of any public impact it might have.

    http://www.fas.org/irp/news/2012/12/df121312.html

(A congressional official said there is an intent to make portions of the
report public over the coming months.)

Even in view of the contrary indications (noted above), and some others,
the dominant trend as we perceive it is that public accountability in
intelligence has been deemphasized.

Senator Feinstein made the point another way, when she said of the
Committee that "We are the public." 

"I mean, we are the public check on the Executive Branch," Sen. Feinstein
said during the FISA reauthorization debate on December 27, explaining why
she believed greater disclosure of information concerning government
surveillance activities was unnecessary. "We are not of the intelligence
community. We are the public, and it is our oversight, it is our due
diligence to go in and read the classified material."

Intelligence Committee Vice Chair Sen. Saxby Chambliss also said that the
Committees themselves provided public oversight by serving as proxies for
the public:  "In matters concerning the FISA Court, the congressional
Intelligence and Judiciary Committees serve as the eyes and ears of the
American people. Through this oversight, which includes being given all
significant decisions, orders, and opinions of the court, we can ensure
that the laws are being applied and implemented as Congress intended."

By these lights, public accountability is more or less superfluous. 
Senator Chambliss said that a report on the privacy impact of government
surveillance advocated by Sen. Ron Wyden was unnecessary, because "If we do
our job, there is absolutely no reason for this amendment--and we do our
job."

Members of the House Judiciary Committee last month expressed their own
confidence in non-public intelligence oversight.  They rejected a
resolution introduced by Rep. Dennis Kucinich to require the Attorney
General to produce legal justifications for the use of drones "relating to
the practice of targeted killing of United States citizens and targets
abroad," a subject of recurring public controversy.

In a December 18 report, the Committee said the Kucinich resolution was
unwarranted because "the House and Senate Intelligence Committees continue
to conduct robust oversight into the drone program that targets terrorists
and their associates."  Public controversy is beside the point.

    http://www.fas.org/irp/congress/2012_rpt/adverse.html

How should one understand the apparent diminished interest in public
accountability?  It is hard to say.  There is a strain of political
commentary that characteristically invokes official bad faith as the
sovereign explanation for all disfavored policy outcomes:  Officials act
the way they do -- instead of the way I wanted them to -- because they are
power-hungry or compromised by financial interest, social affiliation, or
personal ambition.  This is usually a lazy and self-serving explanation (if
my opponents are scoundrels, I must be okay) even if it is not always and
altogether wrong.

Another possibility is that intelligence collection is much more fragile
than is generally recognized.  A senior intelligence agency official said
recently that if the specific surveillance methods authorized by the FISA
Amendments Act were to become public knowledge, those methods could be
circumvented or defeated "without much difficulty."  The official did not
elaborate.

Even if that were true, however, it would not explain the broader trends
-- the declining number of public hearings on intelligence, the diminished
focus on declassification, the abandoned (or muted) commitment to
disclosure of "as much information as possible about intelligence
activities."

Nor does it fully explain the Senate's categorical rejection last month of
all of the proposed amendments to the FISA Amendments Act, which were about
as undemanding as they could be. (The intelligence community said that one
amendment to require preparation of an estimate of the number of American
communications collected was not feasible or would entail privacy
violations of its own). Most of the amendments would not have imposed any
change in policy or any compulsory disclosure, but only certain reporting
obligations, and even those had waivers for national security concerns.  As
far as oversight and accountability are concerned, these proposals were
practically de minimis, of homeopathic proportions, and yet they were
rejected by the Senate.

(Although Sen. Jeff Merkley's amendment to promote declassification of
opinions of the Foreign Intelligence Surveillance Court was among the
rejected proposals, Sen. Feinstein said that she would work together with
Sen. Merkley to help achieve that end.)

"What it comes down to is what we define robust congressional oversight in
a program such as this to be," said Sen. Ron Wyden of his amendment to the
FISA Amendments Act, which was voted down on December 28.

"Plain and simple--we need more information," said Sen. Mark Udall. "How
else can we evaluate this policy? The American public has a right to know.
And needs to know. How many Americans are affected by FISA? Are existing
privacy protections working? Are they too weak? Do they need to be
strengthened? These are vital questions. They need to be answered. And so
far they have not been."

Now, for the foreseeable future, they will not be answered, at least not
to anyone outside of the intelligence committees.

NEW CRS REPORTS ON TAX POLICY

New and updated reports from the Congressional Research Service that
Congress has not made available to the public include the following items
on tax policy.

International Corporate Tax Rate Comparisons and Policy Implications,
December 28, 2012:

        http://www.fas.org/sgp/crs/misc/R41743.pdf

Reform of U.S. International Taxation: Alternatives, December 27, 2012:

        http://www.fas.org/sgp/crs/misc/RL34115.pdf

Distributional Effects of Taxes on Corporate Profits, Investment Income,
and Estates, December 27, 2012:

        http://www.fas.org/sgp/crs/misc/RL32517.pdf

Tax Deductions for Individuals: A Summary, December 20, 2012:

        http://www.fas.org/sgp/crs/misc/R42872.pdf

Funding and Financing Highways and Public Transportation, December 26,
2012:

        http://www.fas.org/sgp/crs/misc/R42877.pdf

The Debt Limit: History and Recent Increases, December 27, 2012:

    http://www.fas.org/sgp/crs/misc/RL31967.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

To UNSUBSCRIBE, go to
     http://www.fas.org/sgp/news/secrecy/unsubscribe.html

OR email your request to saftergood@fas.org

Secrecy News is archived at:
     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – SENATE PASSES INTELLIGENCE BILL WITHOUT ANTI-LEAK MEASURES

congress night1
The Senate passed the FY2013 intelligence authorization act on December 28
after most of the controversial provisions intended to combat leaks had
been removed.

Sen. Dianne Feinstein, the chair of the Senate Intelligence Committee,
said the bill was revised in order to expedite its passage.

"Since the bill was reported out," she said, "the Committee has received
thoughtful comments from our colleagues, media organizations, and from
organizations that advocate for greater governmental transparency. As a
result of these comments, and technical suggestions received from the
Executive Branch, we have decided to remove ten of the twelve sections in
the title of the original bill that addressed unauthorized disclosures of
classified information so that we might ensure enactment this year of the
important other provisions of the bill."

        http://www.fas.org/irp/congress/2012_cr/intelauth.html

More precisely, the revision of the bill could be attributed to the
intervention of Sen. Ron Wyden, who all but single-handedly blocked its
enactment after it was approved in Committee last July by a vote of 14-1,
with only Wyden dissenting.  Its passage by the full Congress seemed to be
assured, but in November, Sen. Wyden placed a hold on the bill to prevent
its adoption by unanimous consent.

The provisions that were removed from the final bill included restrictions
on background briefings for the press, limits on media commentary by former
government officials, and authority for the DNI to unilaterally revoke the
pension of a suspected leaker. ("Anti-Leak Measures in Senate Bill Target
Press, Public," Secrecy News, July 31, 2012).

Sen. Wyden opposed most of the anti-leak measures, he explained on
December 21, "because, in my view, they would have harmed first amendment
rights, led to less informed public debate about national security issues,
and undermined the due process rights of intelligence agency employees,
without actually enhancing national security."

He supported the revised intelligence bill, which passed the Senate Friday
on a voice vote.

One of the anti-leak provisions that did remain in the bill (sect. 504)
will require government officials to notify Congress whenever classified
intelligence is disclosed to the press in an authorized manner, other than
through FOIA or other routine processes.  Thus, Congress must be advised
whenever classified intelligence is declassified specifically for the
purpose of disclosure to the media or -- more remarkably -- if it is
disclosed to the press on an authorized basis while still classified.

This is an unprecedented legislative definition (or recognition) of a
category of information that has no explicit basis in executive branch
policy-- namely, authorized disclosures of classified information to an
uncleared member of the press or the public.  ("Can Disclosures of
Classified Information Be Authorized?", Secrecy News, December 19, 2012). 
While disclosures of classified information to the press obviously occur,
the official authorization for such disclosures, if it exists at all, has
always remained tacit.  (There is an exception for life-threatening
emergencies, in which classified information may be disclosed to
first-responders and the like.)

The new provision notably applies to all "government officials," including
White House officials.  It may oblige the Administration either to abstain
from authorized disclosures of classified intelligence to the press, or to
revise its policies to more clearly permit such disclosures, or to somehow
evade the new reporting requirement, perhaps by defining it away.  Thus,
for example, Vice President Dick Cheney stated in 2004 that classified
information could be used "to shape and inform what one says publicly"
without violating prohibitions on disclosure of classified information.

In any case, it will be interesting to see whether the executive branch
notifies Congress of even a single such authorized disclosure to the media
of classified intelligence over the coming year, after which the provision
will sunset (or expire).

"Unfortunately," said Sen. Feinstein, "I am certain that damaging leaks of
classified information will continue, and so the Committee will need to
continue to look for acceptable ways to address this problem."

The revised intelligence bill also backs off from a move to repeal the
requirement for an annual report on security clearances.  The most recent
such annual report provided significant new transparency and insight into
the security clearance system, including the unexpectedly large number of
cleared persons.  ("Security-Cleared Population Tops 4.8 Million," Secrecy
News, July 23, 2012).

The Director of National Intelligence had asked Congress to eliminate this
reporting requirement, and the Committee markup of the bill initially
complied in July.  But in response to concerns expressed by public interest
groups, the final legislation did not include the repeal of the security
clearance reporting requirement.

"I believe we have addressed all of the concerns that have been brought to
our attention by our colleagues and the public," said Sen. Feinstein.

A NEW RULE TO PROTECT RADIOACTIVE MATERIAL (CRS)

A forthcoming Nuclear Regulatory Commission rule on the physical
protection of radioactive "byproduct materials" -- not including uranium or
plutonium -- is discussed in a new report from the Congressional Research
Service.

"The rule will have broad impacts across the country and across most if
not all aspects of industries that use radioactive material, including
hospital and blood bank irradiators, industrial radiography equipment,
massive facilities for irradiating certain foods and medical supplies,
laboratory equipment for research into radiation and its effects, state
regulators, and manufacturers, distributors, and transporters of
radioactive sources. NRC anticipates that the rule will be published in the
Federal Register in early 2013."

See "Nuclear Regulatory Commission 10 C.F.R. 37, A New Rule to Protect
Radioactive Material: Background, Summary, Views from the Field," December
14, 2012:

    http://www.fas.org/sgp/crs/nuke/R42868.pdf

Congress has directed CRS not to make its reports directly available to
the public.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – NRO RELEASES REDACTED BUDGET BOOK FOR FY 2013

The National Reconnaissance Office (NRO), the U.S. intelligence agency
that is responsible for developing and operating the nation's intelligence
satellites, has released a redacted version of its Congressional Budget
Justification Book for the current fiscal year in response to a Freedom of
Information Act request.

"NRO systems allow users to quickly focus multiple sensors on almost any
point on the globe to respond to emerging crises or operational
requirements and provide persistent, multi-INT coverage," the budget
document says.

"With these capabilities the NRO is an indispensable contributor to
national policymakers, the overall national intelligence effort, and the
war on terrorism and ongoing military operations.... In addition to their
primary intelligence missions, NRO systems increasingly support Homeland
Security requirements."

        http://www.fas.org/irp/nro/fy2013cbjb.pdf

During the present budget year, the NRO said it is working "to improve the
responsiveness of existing systems." But it is also "developing new product
types integrating multi-platform, multi-INT, and multi-domain data to
maximize overhead performance and synergistically address the nation's
highest priority issues."

The agency told Congress it has had "successes developing new operational
concepts and sensor data processing tools enabling legacy satellites,
designed against different collection requirements and operating well
beyond their design lives, to effectively address current intelligence
problems."

The large majority of the NRO budget document has been redacted as
classified and was withheld from public disclosure.  But meaningful
glimmers of fact or assertion can still be found in what has been released.
 For example:

NRO said it has accomplished a "recent 88 percent reduction in
collection-to-analyst dissemination timelines."

NRO expects to complete 15,000 initial and periodic security clearance
reviews during the current fiscal year.

The budget document says the funding request for the NRO Inspector General
was cut by 37% this year. The NRO said this reduction could be managed
although sharp cuts in future budgets were discouraged:  "There is no
greater time when an organization is in need of oversight than in times of
significantly decreasing budgets. It is during difficult fiscal decline
that fraud is most likely to occur, when management controls weaken, and
when unintended performance risks take root."

The current NRO research agenda includes efforts "to take advantage of
massive data sets, multiple data sources, and high-speed machine processing
to identify patterns without a priori knowledge or pattern definition; [as
well as] visualization and presentation of patterns for human
interpretation to enable identification of normal and abnormal behaviors to
detect, characterize, and identify elusive targets."

The redacted budget document devotes at least cursory attention to NRO
strategic planning, human resources, administration, facilities,
information technology, and research and development, among other topics. 
Actual NRO budget numbers were not disclosed.

PRESIDENTIAL REORGANIZATION AUTHORITY, AND MORE FROM CRS

Noteworthy new and updated reports from the Congressional Research Service
that have not been made available to the public include the following.

Presidential Reorganization Authority: History, Recent Initiatives, and
Options for Congress, December 11, 2012:

        http://www.fas.org/sgp/crs/misc/R42852.pdf

Presidential Appointee Positions Requiring Senate Confirmation and
Committees Handling Nominations, November 15, 2012:

        http://www.fas.org/sgp/crs/misc/RL30959.pdf

Legal Protections for Subcontractors on Federal Prime Contracts, December
10, 2012:

        http://www.fas.org/sgp/crs/misc/R41230.pdf

Loss of Federal Pensions for Members of Congress Convicted of Certain
Offenses, December 10, 2012:

        http://www.fas.org/sgp/crs/misc/96-530.pdf

The National Defense Authorization Act for FY2012: Detainee Matters,
December 11, 2012:

        http://www.fas.org/sgp/crs/natsec/R42143.pdf

"Gang of Four" Congressional Intelligence Notifications, November 19,
2012:

        http://www.fas.org/sgp/crs/intel/R40698.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – SENATE PUTS BRAKES ON DEFENSE CLANDESTINE SERVICE

The Senate moved last week to restrain the rapid growth of the Defense
Clandestine Service, the Pentagon's human intelligence operation.

Under a provision of the FY2013 defense authorization act that was
approved on December 4, the Pentagon would be prohibited from hiring any
more spies than it had as of last April, and it would have to provide
detailed cost estimates and program plans in forthcoming reports to
Congress.

"DoD needs to demonstrate that it can improve the management of
clandestine HUMINT before undertaking any further expansion," the Senate
Armed Services Committee wrote in a report on the new legislation.

        http://www.fas.org/irp/congress/2012_cr/ndaa-dcs.html

Longstanding problems with defense human intelligence cited by the
Committee include:  "inefficient utilization of personnel trained at
significant expense to conduct clandestine HUMINT; poor or non-existent
career management for trained HUMINT personnel; cover challenges; and
unproductive deployment locations."

The Committee noted further that "President Bush authorized 50 percent
growth in the CIA's case officer workforce, which followed significant
growth under President Clinton. Since 9/11, DOD's case officer ranks have
grown substantially as well. The committee is concerned that, despite this
expansion and the winding down of two overseas conflicts that required
large HUMINT resources, DOD believes that its needs are not being met."

Instead of an ambitious expansion, a tailored reduction in defense
intelligence spending might be more appropriate, the Committee said.

"If DOD is able to utilize existing resources much more effectively, the
case could be made that investment in this area could decline, rather than
remain steady or grow, to assist the Department in managing its fiscal and
personnel challenges," the Senate Committee wrote.

The Washington Post published a revealing account of Pentagon plans to
expand the size and reach of the defense human intelligence program in "DIA
sending hundreds more spies overseas" by Greg Miller, December 1.

Along with overhead surveillance, bolstering human intelligence has been
the focus of one of two major defense intelligence initiatives, said Under
Secretary of Defense (Intelligence) Michael G. Vickers last October.  The
Defense Clandestine Service "enable[s] us to be more effective in the
collection of national-level clandestine human intelligence across a range
of targets of paramount interest to the Department of Defense," he said.

The latest issues of the U.S. Army's Military Intelligence Professional
Bulletin, released under the Freedom of Information Act, are available here
(in some very large pdf files):

        http://www.fas.org/irp/agency/army/mipb/index.html

"A Short History of Army Intelligence" by Michael E. Bigelow of US Army
Intelligence and Security Command, dated July 2012, is available here:

        http://www.fas.org/irp/agency/army/short.pdf

Newly updated doctrine from the Joint Chiefs of Staff includes Information
Operations, JP 3-13, 27 November 2012:

        http://www.fas.org/irp/doddir/dod/jp3_13.pdf

and Joint Forcible Entry Operations, JP 3-18, 27 November 2012:

        http://www.fas.org/irp/doddir/dod/jp3_18.pdf

The defense authorization bill approved by the Senate last week also
called upon the Pentagon to expedite the domestic use of unmanned aerial
systems (UAS) and their integration into National Airspace System (NAS).

"While progress has been made in the last 5 years [in integrating UASs
into domestic airspace], the pace of development must be accelerated," the
Senate Armed Services Committee said in its report on the bill.  "Greater
cross-agency collaboration and resource sharing will contribute to that
objective."

"Without the ability to operate freely and routinely in the NAS, UAS
development and training -- and ultimately operational capabilities -- will
be severely impacted," the Senate Committee said.

        http://www.fas.org/irp/congress/2012_cr/ndaa-uas.html

OPEN SOURCE TECHNOLOGIES FOR ARMS CONTROL

Members of the public are invited to develop and submit ideas to an essay
contest on the potential uses of open source information and technology to
support international arms control initiatives.

The State Department is sponsoring the contest in partnership with the
James Martin Center for Nonproliferation Studies and the Moscow-based
Center for Policy Studies.

        http://cns.miis.edu/stories/121206_open_source_esssay_contest.htm

"The contest aims to harness the ingenuity of American and Russian
citizens to think creatively about innovative ways to use open source
information and communication technologies for arms control verification,
compliance monitoring, and monitoring of sensitive facilities," the CNS
said in its announcement.

While an essay contest is not a momentous undertaking, this one does seem
to represent a wholesome awareness that the underlying realities of
national security are changing in fundamental ways.  It follows that
national security policies -- including classification policies and public
engagement -- need to adapt accordingly.  

"Diplomacy today is very different than it was at the dawn of the nuclear
age," the State Department said. "More often diplomacy is happening in the
open, and at quicker speeds."

"The astonishing advancements in information and communication
technologies include new tools and capabilities that could help support
arms control transparency and compliance.  This essay contest aims to
encourage more public participation, discussion and thought on arms
control," the State Department said.

There is already an impressive history of public participation in arms
control efforts, notably including the work of Thomas Cochran and the
Natural Resources Defense Council in demonstrating seismic monitoring for
verification of a low-threshold nuclear test ban.

IRAN'S BALLISTIC MISSILE PROGRAM, AND MORE FROM CRS

Noteworthy new and updated reports from the Congressional Research Service
that Congress has not made publicly available include the following.

Iran's Ballistic Missile and Space Launch Programs, December 6, 2012:

        http://www.fas.org/sgp/crs/nuke/R42849.pdf

Syria's Chemical Weapons: Issues for Congress, December 5, 2012:

        http://www.fas.org/sgp/crs/nuke/R42848.pdf

Egypt: Background and U.S. Relations, December 6, 2012:

        http://www.fas.org/sgp/crs/mideast/RL33003.pdf

In Brief: Next Steps in the War in Afghanistan? Issues for Congress,
December 6, 2012:

        http://www.fas.org/sgp/crs/natsec/R42137.pdf

Afghanistan Casualties: Military Forces and Civilians, December 6, 2012:

        http://www.fas.org/sgp/crs/natsec/R41084.pdf

Detention of U.S. Persons as Enemy Belligerents, December 4, 2012:

        http://www.fas.org/sgp/crs/natsec/R42337.pdf

Right to Work Laws: Legislative Background and Empirical Research,
December 6, 2012:

        http://www.fas.org/sgp/crs/misc/R42575.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – DETAINED LINGUIST SEEKS RELEASE FROM JAIL

James F. Hitselberger, a Navy contract linguist who was charged under the
Espionage Act for mishandling classified records, yesterday asked a court
to release him from pre-trial detention.  His release would pose no hazard,
and he is not a flight risk, his public defenders said.

Mr. Hitselberg allegedly removed classified records from a secure facility
in Bahrain, and had previously donated classified materials to the Hoover
Institution, which maintains a James F. Hitselberger Collection.  He is not
suspected of transmitting classified information to a foreign power.  See
"Document Collector Charged Under Espionage Statute," Secrecy News,
November 7, 2012.

        http://www.fas.org/blog/secrecy/2012/11/collector_charged.html

According to prosecutors, Mr. Hitselberger is a shadowy figure who might
vanish if released from custody.  They urged that he be detained until
trial.

"For almost eight months, the defendant, James Hitselberger, has lived as
a fugitive," according to a November 29 government memorandum.  "He speaks
multiple foreign languages, has an apparent network of friends and
acquaintances overseas, and is adept in adapting to foreign surroundings."

        http://www.fas.org/sgp/jud/hitsel/112912-detention.pdf

But in a motion for reconsideration filed yesterday, defense attorneys
said that prosecutors had misrepresented the facts.

        http://www.fas.org/sgp/jud/hitsel/120412-recon.pdf

Mr. Hitselberger "neither fled nor hid from law enforcement officials." 
He "never tried to conceal his identity or location."  Although government
officials had his contact information, "no government agent ever contacted
Mr. Hitselberger or asked him to return to the United States."

"The facts demonstrate that Mr. Hitselberger was not a fugitive, [and he]
cooperated with law enforcement in the investigation of his conduct... He
was never told that law enforcement agents required him to return to the
United States, and he did not 'flee' from law enforcement," defense
attorneys wrote.

Even prosecutors admitted that "Hitselberger has no history of violence.
Nor has the government's investigation revealed that he has tried to pass
any of the classified information he has acquired to a foreign power."

Under the circumstances, defense attorneys asked the court to release Mr.
Hitselberger from pre-trial detention into the custody of his family, and
under electronic monitoring.

"The evidence does not support a finding that Mr. Hitselberger would be a
substantial risk of flight or a danger to the community if released," they
wrote. "Mr. Hitselberger will comply with conditions of release and has
neither the passport necessary nor the will to flee."

The offenses allegedly committed by Mr. Hitselberger are undoubtedly
violations of classification policy.  But the notion that they rise to the
level of multiple felonies is hard to credit, and suggests an excess of
zeal among prosecutors.

A status conference in the case will be held on December 13.

See also "Linguist charged with pilfering records seeks release" by Josh
Gerstein, Politico, December 5:

        http://www.politico.com/blogs/under-the-radar/

HOW A BILL BECOMES A LAW, AND MORE FROM CRS

On January 6, 2013 Congress will convene to count electoral votes and to
formally certify the results of the last presidential election.  The
process was detailed by the Congressional Research Service in "Counting
Electoral Votes: An Overview of Procedures at the Joint Session, Including
Objections by Members of Congress," November 30, 2012:

        http://www.fas.org/sgp/crs/misc/RL32717.pdf

The declining economic condition of many state governments is examined by
CRS in "State Government Fiscal Stress and Federal Assistance," December 3,
2012:

        http://www.fas.org/sgp/crs/misc/R41773.pdf

And for members of Congress who never had civics class, CRS explains how a
bill becomes a law in "Introduction to the Legislative Process in the U.S.
Congress," November 30, 2012:

        http://www.fas.org/sgp/crs/misc/R42843.pdf

See also the elementary "Introduction to the Federal Budget Process,"
December 3, 2012:

        http://www.fas.org/sgp/crs/misc/98-721.pdf

Other new and updated CRS reports that Congress has not made publicly
available include the following.

Congressional Salaries and Allowances, December 4, 2012:

        http://www.fas.org/sgp/crs/misc/RL30064.pdf

Alternative Minimum Taxpayers by State: 2009, 2010, and Projections for
2012, December 4, 2012:

        http://www.fas.org/sgp/crs/misc/RS22083.pdf

Offsets, Supplemental Appropriations, and the Disaster Relief Fund:
FY1990-FY2012, December 4, 2012:

        http://www.fas.org/sgp/crs/misc/R42458.pdf

The Bayh-Dole Act: Selected Issues in Patent Policy and the
Commercialization of Technology, December 3, 2012:

        http://www.fas.org/sgp/crs/misc/RL32076.pdf

Technology Transfer: Use of Federally Funded Research and Development,
December 3, 2012:

        http://www.fas.org/sgp/crs/misc/RL33527.pdf

Industrial Competitiveness and Technological Advancement: Debate Over
Government Policy, December 3, 2012:

        http://www.fas.org/sgp/crs/misc/RL33528.pdf

Cooperative R&D: Federal Efforts to Promote Industrial Competitiveness,
December 3, 2012:

        http://www.fas.org/sgp/crs/misc/RL33526.pdf

IMF Reforms: Issues for Congress, December 4, 2012:

        http://www.fas.org/sgp/crs/misc/R42844.pdf

China's Economic Conditions, December 4, 2012:

        http://www.fas.org/sgp/crs/row/RL33534.pdf

Federal Emergency Management: A Brief Introduction, November 30, 2012:

        http://www.fas.org/sgp/crs/homesec/R42845.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – SECURING U.S. DIPLOMATIC FACILITIES, AND MORE FROM CRS

In almost every year since 2007, Congress appropriated less money for
diplomatic security than had been requested.  In FY2012, the State
Department sought $2.9 billion for security, and Congress enacted $2.6
billion.

The diplomatic security function, including its funding profile, was
discussed in the light of recent attacks of U.S. diplomatic facilities in
Benghazi, Libya and elsewhere in a new report from the Congressional
Research Service.  See "Securing U.S. Diplomatic Facilities and Personnel
Abroad: Background and Policy Issues," November 26, 2012:

        http://www.fas.org/sgp/crs/row/R42834.pdf

Some other new and updated CRS reports that have not been made publicly
available include the following.

Panama: Political and Economic Conditions and U.S. Relations, November 27,
2012:

        http://www.fas.org/sgp/crs/row/RL30981.pdf

The Judgment Fund: History, Administration, and Common Usage, November 26,
2012:

        http://www.fas.org/sgp/crs/misc/R42835.pdf

Financing the U.S. Trade Deficit, November 16, 2012:

        http://www.fas.org/sgp/crs/misc/RL33274.pdf

Saudi Arabia: Background and U.S. Relations, November 27, 2012:

        http://www.fas.org/sgp/crs/mideast/RL33533.pdf

SOME BASIC BUDGET TUTORIALS FROM CRS

In a series of newly updated reports presumably intended for new Members
of Congress who are unfamiliar with basic features of the federal budget,
the Congressional Research Service presented the very rudiments of the
budget process.  See:

Basic Federal Budgeting Terminology, November 26, 2012:

        http://www.fas.org/sgp/crs/misc/98-410.pdf

Overview of the Authorization-Appropriations Process, November 26, 2012:

        http://www.fas.org/sgp/crs/misc/RS20371.pdf

Baselines and Scorekeeping in the Federal Budget Process, November 26,
2012:

        http://www.fas.org/sgp/crs/misc/98-560.pdf

Budget Reconciliation Legislation: Development and Consideration, November
26, 2012:

        http://www.fas.org/sgp/crs/misc/98-814.pdf

Entitlements and Appropriated Entitlements in the Federal Budget Process,
November 26, 2012:

        http://www.fas.org/sgp/crs/misc/RS20129.pdf

Legislative Procedures for Adjusting the Public Debt Limit: A Brief
Overview, November 26, 2012:

        http://www.fas.org/sgp/crs/misc/RS21519.pdf

EVOLUTION OF REMOTE SENSING AND NATIONAL SECURITY

A study performed for the National Geospatial-Intelligence Agency (NGA)
"chronicles the policy history of civil and commercial remote sensing from
1960 through 2008."

The study "highlights the difficulties in establishing a consistent
government role in a field where public good and private profit exist
side-by-side, and where business interests have the potential to contribute
to and conflict with national security interests."

See "U.S. National Security and Economic Interests in Remote Sensing: The
Evolution of Civil and Commercial Policy" by James A. Vedda, The Aerospace
Corporation, February 20, 2009:

        http://www.fas.org/irp/eprint/remote.pdf

The unclassified study was released yesterday by NGA three years after it
was requested under the Freedom of Information Act.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

SECRECY NEWS – CLASSIFICATION DECISIONS ARE REVIEWABLE BY COURTS, GOVT ADMITS

Executive branch decisions to classify national security information are
subject to judicial review in Freedom of Information Act cases, government
attorneys acknowledged in a brief filed yesterday.

That potentially explosive question arose following an extraordinary
ruling by a federal judge ordering the U.S. Trade Representative to release
a one-page classified document that had been requested under the FOIA by
the Center for International Environmental Law.  The document's
classification was not "logical," said DC District Judge Richard W. Roberts
last March, and therefore it was not exempt from public disclosure.

        http://www.fas.org/blog/secrecy/2012/03/not_logical.html

The government appealed that ruling in September, but stopped short of
asserting that the court had no authority to order release of the
classified document.

Yesterday, in response to arguments presented in an amicus brief from
media organizations, government attorneys made their acceptance of judicial
review explicit in a final reply brief.

"We agree that district courts (and courts of appeals) play an important
role in evaluating the government's compliance with its obligations under
FOIA, in Exemption 1 cases [involving national security classification] as
well as others...."

"We have not sought to diminish the role of courts in FOIA Exemption 1
cases, nor have we suggested that the Executive's determination that a
document is classified should be conclusive or unreviewable," attorneys
wrote in the November 27 brief (at p. 8).

        http://www.fas.org/sgp/jud/ciel/112712-ustr-reply.pdf

In other words, the government did not assert that the executive has some
kind of transcendent Article II classification power, nor did government
attorneys contend (a la Egyptian President Morsy) that the judicial review
provisions of FOIA are an unconstitutional infringement on executive
authority.

This was the crucial information policy question that was raised by the
move to appeal Judge Roberts' highly unusual disclosure order, and the
government has more or less resolved it by submitting to the discipline of
judicial review.

What remains is a bona fide dispute:  Was the decision to classify the
USTR document well-founded and plausible, as the government insists, and
therefore entitled to judicial deference?  Or was it illogical, as the
lower court ruled, nullifying the document's exemption from FOIA?

Oral arguments in the case are scheduled for February of next year.

DOES FOREIGN AID WORK?, AND MORE FROM CRS

New and newly updated reports from the Congressional Research Service
obtained by Secrecy News that have not been made publicly available include
the following.

Does Foreign Aid Work? Efforts to Evaluate U.S. Foreign Assistance,
November 19, 2012:

        http://www.fas.org/sgp/crs/row/R42827.pdf

Congressional Redistricting: An Overview, November 21, 2012:

        http://www.fas.org/sgp/crs/misc/R42831.pdf

Update on Controlling Greenhouse Gases from International Aviation,
November 19, 2012:

        http://www.fas.org/sgp/crs/misc/R42828.pdf

The Federal Acquisition Regulation (FAR): Answers to Frequently Asked
Questions, November 16, 2012:

        http://www.fas.org/sgp/crs/misc/R42826.pdf

Gangs in Central America, November 26, 2012:

        http://www.fas.org/sgp/crs/row/RL34112.pdf

The Federal Food Safety System: A Primer, November 26, 2012:

        http://www.fas.org/sgp/crs/misc/RS22600.pdf

The President's Office of Science and Technology Policy: Issues for
Congress, November 26, 2012:

        http://www.fas.org/sgp/crs/misc/RL34736.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – WHITE HOUSE ADVANCES INSIDER THREAT POLICY

In a memorandum to agency heads last week, President Obama transmitted
formal requirements that agencies must meet in order "to deter, detect, and
mitigate actions by employees who may represent a threat to national
security."

Along with espionage and acts of violence, the National Insider Threat
Policy notably extends to the "unauthorized disclosure of classified
information, including the vast amounts of classified data available on
interconnected United States Government computer networks." To combat such
unauthorized disclosures, agencies are required to "monitor employee use of
classified networks."

        http://www.fas.org/sgp/obama/nitp.pdf

The new standards, which have not been made publicly available, were
developed by an interagency Insider Threat Task Force that was established
by President Obama in the October 2011 executive order 13587, and they
reflect the ongoing tightening of safeguards on classified information in
response to the voluminous leaks of the last few years.

        http://www.fas.org/irp/offdocs/eo/eo-13587.htm

But the latest issuance also illustrates the superfluousness (or worse) of
current congressional action concerning leaks.  Executive branch agencies
do not need Congress to tell them to develop "a comprehensive insider
threat program management plan," as would be required by the Senate version
of the pending FY2013 Intelligence Authorization Act (section 509).  Such
plans will go forward in any case.

        http://www.fas.org/irp/congress/2012_cr/ssci-leaks.pdf

Sen. Ron Wyden has placed a hold on the pending intelligence bill, citing
objections to several of the proposed anti-leak provisions contained in
Title V of the bill. He said the proposed steps were misguided or
counterproductive.

"I am concerned that they will lead to less-informed public debate about
national security issues, and also undermine the due process rights of
intelligence agency employees, without actually enhancing national
security," he said on November 14.

        http://www.fas.org/irp/congress/2012_cr/wyden-hold.html

The most problematic measures in the Senate bill are those intended to
restrict contacts between reporters and government officials.

Senator Wyden said that legislative actions to limit the ability of the
press to report on classified matters could undermine or cripple the
intelligence oversight process.

"I have been on the Senate Intelligence Committee for 12 years now, and I
can recall numerous specific instances where I found out about serious
government wrongdoing--such as the NSA's warrantless wiretapping program,
or the CIA's coercive interrogation program--only as a result of
disclosures by the press," he said.

        *        *        *

The record of a July 2012 House Judiciary Committee hearing on National
Security Leaks and the Law has recently been published.

        http://www.fas.org/irp/congress/2012_hr/leaks-hjc.pdf

IG REVIEW OF FISA COMPLIANCE COMPLETED BUT NOT RELEASED

The Office of the Inspector General (OIG) of the Department of Justice
said it had recently completed a review of the Department's use of Section
702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act
(FAA), but the report is classified and its findings have not been
released.

"The OIG examined the number of disseminated FBI intelligence reports
containing a reference to a U.S. person identity, the number of U.S. person
identities subsequently disseminated in response to requests for identities
not referred to by name or title in the original reporting, the number of
targets later determined to be located in the United States, and whether
communications of such targets were reviewed.  The OIG also reviewed the
FBI's compliance with the required targeting and minimization procedures,"
according to a November 7 OIG memorandum on Top Management and Performance
Challenges in the Department of Justice.

        http://www.justice.gov/oig/challenges/2012.htm

A copy of the classified report has been requested under the Freedom of
Information Act.

Earlier this year, Sen. Ron Wyden placed a hold on reauthorization of the
FISA Amendments Act "because I believe that Congress does not have enough
information about this law's impact on the privacy of law-abiding American
citizens, and because I am concerned about a loophole in the law that could
allow the government to effectively conduct warrantless searches for
Americans' communications."

        http://www.fas.org/irp/congress/2012_cr/wyden-fisa.html

AUTONOMY IN WEAPON SYSTEMS

The Department of Defense issued a new Directive last week establishing
DoD policy for the development and use of autonomous weapons systems.

        http://www.fas.org/irp/doddir/dod/d3000_09.pdf

An autonomous weapon system is defined as "a weapon system that, once
activated, can select and engage targets without further intervention by a
human operator."

The new DoD Directive Number 3000.09, dated November 21, establishes
guidelines that are intended "to minimize the probability and consequences
of failures in autonomous and semi-autonomous weapon systems that could
lead to unintended engagements."

"Failures can result from a number of causes, including, but not limited
to, human error, human-machine interaction failures, malfunctions,
communications degradation, software coding errors, enemy cyber attacks or
infiltration into the industrial supply chain, jamming, spoofing, decoys,
other enemy countermeasures or actions, or unanticipated situations on the
battlefield," the Directive explains.

An "unintended engagement" resulting from such a failure means "the use of
force resulting in damage to persons or objects that human operators did
not intend to be the targets of U.S. military operations, including
unacceptable levels of collateral damage beyond those consistent with the
law of war, ROE [rules of engagement], and commander's intent."

The Department of Defense should "more aggressively use autonomy in
military missions," urged the Defense Science Board last summer in a report
on "The Role of Autonomy in DoD Systems."

        http://www.fas.org/blog/secrecy/2012/09/dsb_autonomy.html

The U.S. Army issued an updated Army Field Manual 3-36 on Electronic
Warfare earlier this month.

        http://www.fas.org/irp/doddir/army/fm3-36.pdf

INDIA-US SECURITY RELATIONS, AND MORE FROM CRS

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

India-U.S. Security Relations: Current Engagement, November 13, 2012:

        http://www.fas.org/sgp/crs/row/R42823.pdf

A Guide to China's Upcoming Leadership Transitions, October 16, 2012:

        http://www.fas.org/sgp/crs/row/R42786.pdf

U.S. Trade and Investment Relations with sub-Saharan Africa and the
African Growth and Opportunity Act, November 14, 2012:

        http://www.fas.org/sgp/crs/row/RL31772.pdf

Roles and Duties of a Member of Congress, November 9, 2012:

        http://www.fas.org/sgp/crs/misc/RL33686.pdf

The Congressional Research Service made a humorous appearance in the
Doonesbury comic strip on November 24, in connection with the report on tax
cuts that was withdrawn in response to criticism from some Republican
Senators.

        http://doonesbury.slate.com/strip/archive/2012/11/24

In fact, as often noted, members of Congress of both parties consistently
withhold public access to most CRS reports.

        http://www.fas.org/blog/secrecy/2012/11/crs_withdrawal.html

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – Document Collector Charged under Espionage Statute


In a new case of alleged mishandling of classified materials, a Navy
contract linguist who served in Bahrain until earlier this year was charged
with unlawful retention of national defense information after several
classified documents were found in his possession.  

But although James F. Hitselberger, an experienced Arabic translator, was
charged under an Espionage Act statute (18 USC 793e), he is not suspected
of espionage.  The government "concedes that Defendant... did not
disseminate the classified information to a 'foreign power'," a Magistrate
Judge noted on Monday when the case was unsealed.

        http://www.fas.org/sgp/jud/hitsel/index.html

Rather, Mr. Hitselberger told NCIS agents that "his sole purpose was to
take the materials to his quarters to read" and he "claimed not to know
that the documents... were classified, notwithstanding their clear
markings."

        http://www.fas.org/sgp/jud/hitsel/complaint.pdf

The case has a number of unusual features, beginning with the defendant
himself, who is a peripatetic collector of rare documents. While at the
University of Texas at Austin in the 1990s, he was said to have been
"working on an open-ended Ph.D. in an unknown subject."  His living
quarters in Bahrain, in which a classified document was allegedly found in
April of this year, were "extremely cluttered and contained hundreds of
newspapers [and] numerous books."

Remarkably, Mr. Hitselberger had donated many of his most valuable
documentary discoveries over the years to the Hoover Institution at
Stanford University, which actually maintains a "James F. Hitselberger
Collection." It notably includes political posters and leaflets that he
gathered in pre-revolutionary Iran.

        http://www.oac.cdlib.org/findaid/ark:/13030/kt909nf448/

Unfortunately, according to a newly unsealed complaint, Hoover's
Hitselberger Collection also contained classified records that he had
contributed.

"Agents visited the Hoover Archives and reviewed the collection.  In an
area open to the public, the agents found a classified document titled
Bahrain Situation Update dated February 13, 2012.... In a secure,
non-public area of the Archives, agents also discovered two other documents
marked SECRET."

A disconcerted Hoover Institution archivist told Mr. Hitselberger in May
by email that "in light of the FBI investigation of your collection here at
Hoover, we will no longer accept additions to the collection, as we don't
want to risk receiving more classified material."

In April of this year, Mr. Hitselberger was dismissed from his post in
Bahrain and was expected to return to the United States.  Instead, however,
he traveled for months through Germany, Sweden, Malta, Bulgaria and the
United Kingdom, and was beyond the reach of U.S. authorities.

"Although the government was aware of Defendant's whereabouts during that
time, the countries would not extradite him [to the U.S.] because the
offense charged was characterized as a 'political offense'," according to a
November 5 memorandum of findings of fact by DC District Magistrate Judge
Deborah A. Robinson.

But last month, when it was learned that he was traveling to Kuwait, the
Government of Kuwait agreed to expel him into U.S. custody if he arrived
there without a valid passport.  So the U.S. suspended his passport, and
upon arrival placed him under arrest.

In traditional espionage cases, a suspected spy is sometimes identified by
unexplained affluence or ostentatious behavior.  But, as noted, this is not
an espionage case and there is no question of affluence.

To the contrary, the government and the court seemed disturbed by Mr.
Hitselberger's extraordinary frugality which, they suggested, might enable
him to quietly vanish.

"Defendant has demonstrated his ability to live abroad and survive on his
apparently modest means," wrote Judge Robinson. "Defendant's pattern of
residing in, and relocating to, various countries without ascertainable
income bespeaks his ability to live abroad undetected with limited
resources."

        http://www.fas.org/sgp/jud/hitsel/findings.pdf

Mr. Hitselberger was ordered detained without bond.

NATURAL GAS IN THE US ECONOMY, AND MORE FROM CRS

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

Natural Gas in the U.S. Economy: Opportunities for Growth, November 6,
2012:

        http://www.fas.org/sgp/crs/misc/R42814.pdf

The Dodd-Frank Wall Street Reform and Consumer Protection Act: Title VII,
Derivatives, November 6, 2012:

        http://www.fas.org/sgp/crs/misc/R41398.pdf

Same-Sex Marriages: Legal Issues, November 5, 2012:

        http://www.fas.org/sgp/crs/misc/RL31994.pdf

Mayo v. Prometheus: Implications for Patents, Biotechnology, and
Personalized Medicine, November 6, 2012:

        http://www.fas.org/sgp/crs/misc/R42815.pdf

U.S. Direct Investment Abroad: Trends and Current Issues, October 26,
2012:

        http://www.fas.org/sgp/crs/misc/RS21118.pdf

Foreign Direct Investment in the United States: An Economic Analysis,
October 26, 2012:

        http://www.fas.org/sgp/crs/misc/RS21857.pdf

Employment for Veterans: Trends and Programs, October 23, 2012:

        http://www.fas.org/sgp/crs/misc/R42790.pdf

Yemen: Background and U.S. Relations, November 1, 2012:

        http://www.fas.org/sgp/crs/mideast/RL34170.pdf

Bahrain: Reform, Security, and U.S. Policy, November 6, 2012:

        http://www.fas.org/sgp/crs/mideast/95-1013.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – Intelligence Spending drops for a second year


For the second year in a row and for only the second time in the post-9/11
era, total intelligence spending declined last year to $75.4 billion,
according to figures released yesterday by the Director of National
Intelligence and the Department of Defense.

        http://www.fas.org/irp/budget/index.html

Total spending had peaked in FY2010 at $80.1 billion, and declined in
FY2011 to $78.6 billion.

"We are looking at some pretty steep budget cuts across the board in the
Intelligence Community," DNI James Clapper told the Senate Intelligence
Committee last January.

"Never before has the Intelligence Community been called upon to master
such complexity on so many issues in such a resource-constrained
environment," he said then. "We're rising to the challenge by continuing to
integrate the Intelligence Community, ... taking advantage of new
technologies, implementing new efficiencies, and, as always, simply working
hard. But, candidly, maintaining the world's premier intelligence
enterprise in the face of shrinking budgets will be difficult. We'll be
accepting and managing risk more so than we've had to do in the last
decade."

        http://www.fas.org/irp/congress/2012_hr/threat.pdf

But while intelligence budgets are shrinking, they remain very high by
historical standards, having more than doubled over the past decade.

Total intelligence spending is comprised of two budget constructs:  the
National Intelligence Program (NIP) and the Military Intelligence Program
(MIP).  The large defense intelligence agencies -- including NSA, NRO, and
NGA -- receive funding through both budget programs.

For the first time ever in FY2012, both the budget request for the NIP
($55 billion) and the subsequent budget appropriation ($53.9 billion) have
been disclosed.  (The MIP request was disclosed for FY2013, but not for
FY2012.)  This is something of a breakthrough in intelligence
classification policy.

Hypothetically (or so it was long asserted), a hostile intelligence
analyst could derive valuable insight from the gap between each year's
budget appropriation, or between the appropriation and the request, to the
detriment of U.S. security.

"Disclosure of the budget request or the total appropriation reasonably
could be expected to cause damage to the national security in several
ways," wrote Director of Central Intelligence George Tenet in 1999 in a
successful effort to keep the budget secret at that time. "First,
disclosure of the budget request reasonably could be expected to provide
foreign governments with the United States' own assessment of its
intelligence capabilities and weaknesses. The difference between the
appropriation for one year and the Administration's budget request for the
next provides a measure of the Administration's unique, critical assessment
of its own intelligence programs. A requested budget decrease reflects a
decision that existing intelligence programs are more than adequate to meet
the national security needs of the United States. A requested budget
increase reflects a decision that existing intelligence programs are
insufficient to meet our national security needs. A budget request with no
change in spending reflects a decision that existing programs are just
adequate to meet our needs."

        http://www.fas.org/sgp/foia/tenet499.html

But this longstanding official position has now lost any semblance of
cogency.

"In my view, this argument does not stand up to even a few minutes of
serious analysis," wrote former 9/11 Commission executive director (and
Romney campaign adviser) Philip Zelikow in the latest issue of the CIA
journal Studies in Intelligence.

But with serious analysis evidently in short supply, total intelligence
budget secrecy remained the norm for many decades until recently.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – Court orders FBI to release withheld information

COURT ORDERS FBI TO RELEASE WITHHELD INFORMATION

As often happens, the Federal Bureau of Investigation invoked national
security a few years ago to justify withholding certain information from a
Freedom of Information Act requester named Deirdre McKiernan Hetzler.

But as rarely happens, a court last month critically assessed the FBI
national security claim and ordered the Bureau to release some of the
withheld information.

Ms. Hetzler, acting pro se (i.e. without an attorney), had requested
records concerning her deceased father, who had once been the subject of an
FBI investigation.  The FBI provided her with some records but withheld
others, stating that they remained classified in order to protect an
intelligence activity.

But after reviewing the withheld records in camera, Judge Michael A.
Telesca of the Western District of New York determined that some of the
information contained in them was not exempt from disclosure under FOIA. 
The FBI had been withholding it under the FOIA's national security
exemption even though it was actually unclassified or declassified.

"The Court is not persuaded that Defendants [the FBI and the Justice
Department] have carried their burden of showing that disclosure of this
information could cause serious damage to national security," Judge Telesca
wrote in a September 6, 2012 opinion.  He therefore ordered the FBI to
reprocess the request and to release the information to Ms. Hetzler as
specified in his ruling.

        http://www.fas.org/sgp/jud/hetzler.pdf

The Court here acted as a check on the normally unconstrained official
tendency to classify and withhold information.  That is what judicial
review is supposed to do, though it doesn't happen very often.

Earlier this year, Judge Richard W. Roberts of the DC District ordered the
U.S. Trade Representative to release a classified document to the Center
for International Environmental Law (CIEL) because he found that the
document was not properly classified.  

The USTR "failed to provide a plausible or logical explanation of why
disclosure of [the document] reasonably could be expected to damage United
States foreign relations," he wrote in his opinion ordering release.

        http://www.fas.org/blog/secrecy/2012/03/not_logical.html

The government has appealed that ruling.  Judge Roberts "inappropriately
second-guessed the Executive's expertise in the uniquely sensitive area of
foreign relations," the government said in its September 17 appeals brief.

        http://www.fas.org/blog/secrecy/2012/09/ciel_appeal_brief.html

No, on the contrary, CIEL responded in its own brief to the appeals court
this week, Judge Roberts did exactly what the FOIA requires.

"A district court reviewing [an agency claim that a document is classified
and exempt from disclosure] must give substantial weight to the agency's
explanations, but must not simply acquiesce in the agency's determination,"
CIEL attorneys wrote.

        http://www.fas.org/sgp/jud/ciel/102412-app.pdf

"Congress explicitly 'stressed the need for an objective, independent
judicial determination, and insisted that judges could be trusted to
approach the national security determinations with common sense, and
without jeopardy to national security'," they wrote, citing prior FOIA case
law.

The document that is being contested in this case is a one-page memorandum
that presents the US government's legal interpretation of the phrase "in
like circumstances."

The government says that because the document was shared confidentially
with other governments as part of a (now-concluded) free trade negotiation,
its involuntary disclosure would undermine the confidentiality of
diplomatic negotiations.

Judge Roberts said this argument was not compelling "since the United
States would be revealing its own position only" and would not be
disclosing foreign government information that had been provided in
confidence.

Indeed, "There is no expectation that a government is required to keep its
own negotiating positions confidential from its own citizens," said former
US trade negotiator Daniel Magraw in a statement cited by CIEL.

CIEL said that "Under USTR's interpretation, USTR could withhold any
document -- even a document whose release would otherwise cause absolutely
no harm -- simply by entering into a confidentiality arrangement and
arguing that the breach of that arrangement would undermine trust and cause
damage to US foreign relations; the withholding would be insulated from
judicial review."

"Fortunately, FOIA limits what an agency can make confidential," CIEL
wrote in its appeals brief.

A date for oral argument before the DC Circuit Court of Appeals has not
yet been set.

AN UPDATED CATALOG OF ARMY WEAPON SYSTEMS

The U.S. Army has just published the 2013 edition of its annual Weapon
Systems Handbook, which is filled with updated information on dozens of
weapon systems, the military contractors who produce them, and the foreign
countries that purchase them.

        http://www.fas.org/man/dod-101/sys/land/wsh2013/index.html

So one learns, for example, that the RQ-11B Raven Small Unmanned Aircraft
System is marketed to Denmark, Estonia, Lebanon, and Uganda, while the
United States sells artillery ammunition both to Israel and to Lebanon.

An appendix provides an informative breakdown of military industry
contractors by weapon system and by the state where the contractor is
located.

        http://www.fas.org/man/dod-101/sys/land/wsh2013/app.pdf

"The systems listed in this book are not isolated, individual products.
Rather, they are part of an integrated Army system of systems designed to
equip the Army of the future to successfully face any challenges,"
according to the Handbook introduction.

"After 10 years of combat, today's Army is significantly more capable than
the Army of 2001. As we draw down from Iraq and Afghanistan, we must remain
flexible, adaptable, and agile enough to respond and meet the needs of the
combatant commanders."

"Our objective is to equip and maintain an Army with the latest most
advanced weaponry to win and return home quickly."

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – Liberties Oversight Board invites Public Input


The long-dormant Privacy and Civil Liberties Oversight Board (PCLOB)
announced that it will hold its first public meeting next week and it
invited members of the public to provide input to help shape the Board's
near-term agenda.

"In anticipation of setting the agenda of issues on which the Board will
focus its attention, the Board would welcome the views of nongovernmental
organizations and members of the public," stated a notice in the October 23
Federal Register.

        http://www.fas.org/sgp/news/2012/10/pclob.html

The PCLOB was created in response to a recommendation of the 9/11
Commission that "there should be a board within the executive branch to
oversee... the commitment the government makes to defend our civil
liberties."

By statute, the PCLOB is mandated to "(1) analyze and review actions the
executive branch takes to protect the Nation from terrorism, ensuring that
the need for such actions is balanced with the need to protect privacy and
civil liberties; and (2) ensure that liberty concerns are appropriately
considered in the development and implementation of laws, regulations, and
policies related to efforts to protect the Nation against terrorism."

In response to the announcement of next week's meeting, we wrote in to
propose that the PCLOB should review the government's problematic use of
Section 215 of the USA Patriot Act. "The use of Section 215, the so-called
'business records' provision, is the subject of intense and unresolved
controversy that warrants the Board's attention," we suggested.

        http://www.fas.org/sgp/news/2012/10/pclob-let.pdf

Senators Ron Wyden and Mark Udall have stated that "most Americans would
be stunned to learn the details of how these secret court opinions have
interpreted section 215 of the Patriot Act."  If so, the members of the
PCLOB can be stunned on behalf of most Americans by virtue of the security
clearances and right of access that they possess.

For background on the origins and development of the PCLOB, see "Privacy
and Civil Liberties Oversight Board: New Independent Agency Status,"
Congressional Research Service, August 27, 2012:

        http://www.fas.org/sgp/crs/misc/RL34385.pdf

FEDERAL SUPPORT FOR ACADEMIC RESEARCH, AND MORE FROM CRS

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

Federal Support for Academic Research, October 18, 2012:

        http://www.fas.org/sgp/crs/misc/R41895.pdf

Unfunded Mandates Reform Act: History, Impact, and Issues, October 22,
2012:

        http://www.fas.org/sgp/crs/misc/R40957.pdf

Terrorism and Transnational Crime: Foreign Policy Issues for Congress,
October 19, 2012:

        http://www.fas.org/sgp/crs/terror/R41004.pdf

Managing the Nuclear Fuel Cycle: Policy Implications of Expanding Global
Access to Nuclear Power, October 19, 2012:

        http://www.fas.org/sgp/crs/nuke/RL34234.pdf

U.S. Sanctions on Burma, October 19, 2012:

        http://www.fas.org/sgp/crs/row/R41336.pdf

Burma's Political Prisoners and U.S. Sanctions, October 19, 2012:

        http://www.fas.org/sgp/crs/row/R42363.pdf

Navy DDG-51 and DDG-1000 Destroyer Programs: Background and Issues for
Congress, October 18, 2012:

        http://www.fas.org/sgp/crs/weapons/RL32109.pdf

Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program:
Background and Issues for Congress, October 18, 2012:

        http://www.fas.org/sgp/crs/weapons/R41129.pdf

Navy Shipboard Lasers for Surface, Air, and Missile Defense: Background
and Issues for Congress, October 19, 2012:

        http://www.fas.org/sgp/crs/weapons/R41526.pdf

Navy Irregular Warfare and Counterterrorism Operations: Background and
Issues for Congress, October 18, 2012:

        http://www.fas.org/sgp/crs/natsec/RS22373.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Kiriakou pleads guilty in leak case

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.

        http://www.fas.org/sgp/jud/kiriakou/facts.pdf

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.

        http://www.fas.org/sgp/jud/kiriakou/plea.pdf

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.

        http://www.fas.org/irp/dni/icd/icd-709.pdf

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.

        http://www.sheldoncohen.com/

"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.

        http://www.fas.org/sgp/eprint/doha-cohen.pdf

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.  A copy is available here:

        http://www.fas.org/sgp/othergov/dod/index.html

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:

        http://www.fas.org/sgp/crs/misc/97-936.pdf

Contemporary Developments in Presidential Elections, October 18, 2012:

        http://www.fas.org/sgp/crs/misc/R42139.pdf

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

        http://www.fas.org/sgp/crs/misc/RL33577.pdf

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

        http://www.fas.org/sgp/crs/misc/RS20115.pdf

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

        http://www.fas.org/sgp/crs/row/R42523.pdf

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

        http://www.fas.org/sgp/crs/row/RL33142.pdf

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

        http://www.fas.org/sgp/crs/row/RL33153.pdf

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

        http://www.fas.org/sgp/crs/weapons/RL32665.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – Intelligence Imagery set to be disclosed


A massive quantity of historical intelligence satellite imagery from the
KH-9 HEXAGON program is being declassified and will be made public in a
series of releases that are scheduled over the coming year, intelligence
community officials say.

Declassification of intelligence satellite imagery languished for years
after President Clinton ordered the release of product from the Corona,
Argon and Lanyard missions in the 1995 executive order 12951.  Although the
Clinton order also required the periodic review of imagery from other
missions, that requirement was effectively ignored by intelligence agencies
and neglected by congressional oversight.

But in a May 2010 memorandum Director of National Intelligence Dennis C.
Blair ordered the "re-establishment" of the declassification review of
intelligence imagery -- though it had never been officially disestablished
-- with a particular focus on imagery from satellite systems that were
deemed obsolete.

        http://www.fas.org/sgp/othergov/intel/imagery.pdf

In January 2011, DNI James R. Clapper formally declared that the KH-9
HEXAGON program was obsolete, and that declassification review of all
program imagery should therefore commence.  KH-9 HEXAGON was operational
from 1971 to 1984.

        http://www.fas.org/sgp/othergov/intel/dni012011.pdf

"The process to declassify imagery pursuant to EO 12951 began shortly
after DNI Blair's May 26, 2010 memorandum and has been ongoing, in earnest,
with the goal of releasing as much imagery as possible to the public,
consistent with national security," said Michael G. Birmingham of the
Office of the Director of National Intelligence. "Accordingly, The
KH-9/HEXAGON system was declared obsolete in January 2011 and a phased
declassification of its imagery has ensued."

More than two years after the Blair memorandum, however, next to nothing
has yet been made public.

"The notable challenges to this effort are the sheer volume of imagery and
the logistics involved in cataloging the imagery and moving it to archive,"
Mr. Birmingham told Secrecy News.

"For context, and to grasp the scope of the project, the KH-9/HEXAGON
system provided coverage over hundreds of millions of square miles of
territory during its 19 successful missions spanning 1971-1984.  It is a
daunting issue to address declassification of the program specifics
associated with an obsolete system such as the KH-9, which involves the
declassification of huge volumes of intelligence information gathered on
thousands of targets worldwide during a 13 year time period."

Daunting or not, the large bulk of the KH-9 imagery is expected to be
released, with only perhaps 5% or so remaining classified.

"There is a schedule of multiple deliveries with final delivery of imagery
scheduled for September 2013," Mr. Birmingham said.

Within the intelligence community, the National Geospatial-Intelligence
Agency is the executive agent for imagery declassification.  NGA public
affairs did not respond to questions about its declassification program.

HISTORIAN ANNA K. NELSON, RIP

We were sad to learn that Professor Anna K. Nelson, a tenacious and
effective advocate for improved public access to national security records,
passed away last month.

For decades, Prof. Nelson argued for improved declassification practices
in almost every venue imaginable, from congressional hearings to the most
obscure and transient advisory bodies.  As a professor of history at
American University, she insisted that government records were public
property and that access to such records was one of the foundations of good
citizenship.

        http://www.american.edu/cas/faculty/anelson.cfm

Among many other posts, she served as a presidentially-appointed member of
the JFK Assassination Records Review Board, which was tasked to oversee the
declassification of records concerning the assassination of President
Kennedy.  Because of the perseverance of Dr. Nelson and her colleagues,
that Board was uniquely productive in overcoming longstanding barriers to
declassification, particularly those pertaining to intelligence agency
records.

Nevertheless, she was habitually pessimistic about the prospects for
meaningful secrecy reform.

"Given past performance, it is highly unrealistic to assume that agencies,
particularly Defense and the CIA, will be completely forthcoming or that
the Archives will ever question agency decisions," she wrote in a 2000
letter to Congress. "Agency declassification of selected, heavily redacted
records will not serve the public interest. It will only breed more
suspicion."

        http://www.fas.org/sgp/news/2000/02/nelson.html

Prof. Nelson also spoke out in defense of robust investigative reporting
on national security matters.  In 2008, for example, she submitted a
declaration of behalf of New York Times reporter James Risen, arguing that
a grand jury subpoena against him in the pending leak case against former
CIA officer Jeffrey Sterling should be quashed.

        http://www.fas.org/sgp/jud/sterling/risen-nelson.pdf

"If Mr. Risen and other investigative journalists are unable to report
effectively on matters of intelligence, the historical record will be
incomplete, if not erroneous," Dr. Nelson wrote.

"Although our own books and articles are stuffed with footnotes, we
historians understand that investigative journalists, as observers of the
present, must protect their sources. If they do not, the American people
will never learn about corruption, incompetence, excessive government
secrecy, flaws in homeland security, or disastrous decisions made by policy
makers who are advised by their intelligence chiefs," she wrote. "We must
depend upon journalists and journalists must be permitted to depend upon
confidential sources."

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

Secrecy News – The Purpose of National Security Policy declassified

THE PURPOSE OF NATIONAL SECURITY POLICY, DECLASSIFIED

The most fundamental purpose of national security policy is not to keep
the nation safe from physical attack but to defend the constitutional
order.  At least, that is what President Reagan wrote in a Top Secret 1986
directive.

"The primary objective of U.S. foreign and security policy is to protect
the integrity of our democratic institutions and promote a peaceful global
environment in which they can thrive," President Reagan wrote in National
Security Decision Directive 238 on "Basic National Security Strategy,"
which was partially declassified in 2005.

        http://www.fas.org/irp/offdocs/nsdd/nsdd-238.pdf

In a list of national security objectives, the directive does note the
imperative "to protect the United States... from military, paramilitary, or
terrorist attack."

But that is not the primary objective, according to the Reagan directive. 
Defense of the Constitution evidently takes precedence.

The first purpose of national security policy is "to preserve the
political identity, framework and institutions of the United States as
embodied in the Declaration of Independence and the Constitution,"
President Reagan wrote.

This is a remarkable statement, for several reasons.  First, it recognizes
that the political identity and institutions of the United States are not
simply a given, but that they are vulnerable to many types of threats and
must be actively defended and sustained.  This task is not normally
assigned the urgency or the priority given to "national security."

Second, the directive distinguishes between constitutional governance and
physical security. Not every measure intended to promote security is
constitutional.  And not every act in defense of democratic self-governance
is likely to promote public safety.  (The American Revolution was not
calculated to increase "homeland security." Quite the opposite.)  Sometimes
a choice between the two is required.  President Reagan indicated what he
thought the choice should be.

And third, the directive is remarkable because its rhetoric was so
imperfectly realized by the Reagan Administration (and egregiously defied
in the Iran-Contra Affair) and has been largely abandoned by its
successors.

"Defending our Nation against its enemies is the first and fundamental
commitment of the Federal Government," wrote President George W. Bush in
his 2002 National Security Strategy, skipping over President Reagan's
"primary" objective.

Likewise, "As President, I have often said that I have no greater
responsibility than protecting the American people," President Obama wrote
in his National Strategy for Counterterrorism.

The Reagan directive invites reflection on what U.S. national security
policy would look like if it were truly structured above all "to protect
the integrity of our democratic institutions."

In a section of the directive that was only classified Confidential,
President Reagan contrasted the U.S. with the Soviet Union, which was
described as its polar opposite.

"Our way of life, founded upon the dignity and worth of the individual,
depends on a stable and pluralistic world order within which freedom and
democratic institutions can thrive.  Yet, the greatest threat to the Soviet
system, in which the State controls the destiny of the individual, is the
concept of freedom itself."

"The survival of the Soviet system depends to a significant extent upon
the persistent and exaggerated representation of foreign threats, through
which it seeks to justify both the subjugation of its own people and the
expansion of Soviet military capabilities well beyond those required for
self-defense," President Reagan wrote.

Numerous Presidential directives from the Reagan Administration have been
declassified in recent years and have released by the Reagan Library,
though others still remain partially or completely classified.

Many of the declassified directives provide a fascinating account that
enlarges and enriches the public record of events of the time.  

        http://www.fas.org/irp/offdocs/nsdd/index.html

Only last year, for example, a 1985 directive (NSDD-172) on "Presenting
the Strategic Defense Initiative" was finally declassified.

        http://www.fas.org/irp/offdocs/nsdd/nsdd-172.pdf

This year, NSDD 159 on "Covert Action Policy Approval and Coordination
Procedures" (1985) was declassified.

        http://www.fas.org/irp/offdocs/nsdd/nsdd-159.pdf

NSDD 207 on "The National Program for Combatting Terrorism" (1986) was
declassified in 2008.

        http://www.fas.org/irp/offdocs/nsdd/nsdd-207.pdf

Among other things, that directive ordered the Attorney General to "Review
the Freedom of Information Act (FOIA) and determine whether terrorist
movements or organizations are abusing its provisions."

JOB GROWTH DURING THE RECOVERY, AND MORE FROM CRS

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

Job Growth During the Recovery, updated October 16, 2012:

        http://www.fas.org/sgp/crs/misc/R41434.pdf

The President's Emergency Plan for AIDS Relief (PEPFAR): Funding Issues
After a Decade of Implementation, FY2004-FY2013, October 10, 2012:

        http://www.fas.org/sgp/crs/misc/R42776.pdf

Statutes of Limitation in Federal Criminal Cases: An Overview, updated
October 1, 2012:

        http://www.fas.org/sgp/crs/misc/RL31253.pdf

Venezuela: Issues for Congress, updated October 16, 2012:

        http://www.fas.org/sgp/crs/row/R40938.pdf

Georgia's October 2012 Legislative Election: Outcome and Implications,
October 15, 2012:

        http://www.fas.org/sgp/crs/row/R42777.pdf

Iran Sanctions, updated October 15, 2012:

        http://www.fas.org/sgp/crs/mideast/RS20871.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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     http://www.fas.org/sgp/news/secrecy/unsubscribe.html

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Secrecy News is archived at:
     http://www.fas.org/sgp/news/secrecy/index.html

Support the FAS Project on Government Secrecy with a donation:
     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – Kiriakou not allowed to argue lack of intent to harm U.S.

A court ruled this month that former CIA officer John Kiriakou, who is
charged with unauthorized disclosures of classified information to the
media, will not be permitted to argue at trial that he intended no harm to
the United States, or that his entire career testifies to a deep commitment
to national security.

Instead, the central question at trial will be whether Kiriakou "had
reason to believe" that the information he allegedly released would cause
injury to the United States.

The court ruling, which favors the prosecution's conception of the case,
was issued during a sealed hearing on October 1.  The hearing transcript
has not been released, but the ruling was disclosed in two footnotes in an
October 3 defense pleading that was unsealed last week.

        http://www.fas.org/sgp/jud/kiriakou/100312-reply98.pdf

The defense said it would have demonstrated at trial "that Mr. Kiriakou
had no intent to harm the United States, and that he had no motive to do so
had the Court not ruled such arguments inadmissible" (footnote 7).

Similarly, the defense indicated that "this Court's October 1, 2012 ruling
precludes arguments regarding Mr. Kiriakou's intent to harm the United
States or a defense resting on Mr. Kiriakou's lack of bad faith" (footnote
4).

The defense said it would continue to "note where information would be
relevant to such arguments in order to preserve its ability to appeal the
issue should that become necessary."

Meanwhile, two reporters who were subpoenaed by the Kiriakou defense filed
motions to quash the subpoenas.

Attorneys for Matthew Cole, designated "Journalist A" in the Kiriakou
indictment, said that the information sought by the Kiriakou defense was
protected by a reporter's First Amendment privilege and that there was no
basis to overrule the privilege.

Not only that, but Cole attorneys George Doumar and Mark Zaid added that
Mr. Cole would assert a Fifth Amendment right to refuse to testify to avoid
self-incrimination.  They said that the government's past move to prosecute
unauthorized receipt and transmission of classified information in the
AIPAC case (US v. Rosen) raises the possibility that Cole's testimony
"could subject him to a subsequent federal criminal proceeding. Therefore,
he will invoke his Fifth Amendment right to remain silent."

        http://www.fas.org/sgp/jud/kiriakou/101112-Aquash.pdf

Washington Post researcher Julie Tate also moved to quash a subpoena for
her testimony.  She was identified as the "Researcher 1" sought by the
defense in an article by Josh Gerstein of Politico last week.

Ms. Tate possesses exceptional news gathering skills.  But she has nothing
to do with the charges against Mr. Kiriakou, her attorneys said in their
October 11 motion to quash.

"The testimony defendant seeks from Ms. Tate has no conceivable relevance
to this case. Defendant has been charged with unlawfully disclosing
classified information to Journalist A and Journalist B--not to Ms. Tate.
Ms. Tate is not mentioned in the Indictment, and there is no evidence in
the record that Ms. Tate has ever met or communicated with Mr. Kiriakou....
 The law places the burden on the defendant to establish that he has a need
for Ms. Tate's testimony that is so compelling that it outweighs the First
Amendment interests at stake. That burden has not been met."

        http://www.fas.org/sgp/jud/kiriakou/101112-tate-quash.pdf

Scott Shane of the New York Times, who is "Journalist B" in the Kiriakou
indictment, is also believed to have been subpoenaed.  But that subpoena is
said to have been withdrawn for reasons that are unclear.  In any case, Mr.
Shane and the New York Times did not file a motion to quash.

The pending motions to quash the subpoenas will be argued before Judge
Leonie M. Brinkema at an October 18 hearing.

SECRECY CONFERENCE AT FORDHAM LAW SCHOOL

A day-long conference on national security secrecy will be held tomorrow,
October 16, at Fordham Law School in New York City.

The conference brings together a promising mix of former government
officials, journalists, litigators, academics and others, including myself.

For more information on the conference, which is open to the public, see
here:

        http://www.fas.org/sgp/news/2012/10/fordham.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://www.fas.org/sgp/news/secrecy/subscribe.html

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – Kiriakou Defense seeks to depose reporters

In a new challenge to press independence, attorneys for John Kiriakou, the
former CIA officer who is charged with leaking classified information, have
asked a court for permission to depose three journalists in support of his
defense.

Two of the journalists are cited in the April 2012 Kiriakou indictment as
Journalist A and Journalist B.  Based on the description provided, these
are understood to be Matthew Cole, formerly of ABC News, and Scott Shane of
the New York Times.  The Kiriakou attorneys also asked for court
authorization to depose a third journalist designated as Researcher 1, who
"has worked in close association with Journalist A."

"Based upon communications with each of these individuals and their
counsel, all are unwilling to submit to on-the-record interviews or
otherwise testify voluntarily," the newly unsealed September 28 defense
motion stated.  "It is likely that all may assert a 'journalist's
privilege' if compelled to testify."

        http://www.fas.org/sgp/jud/kiriakou/092812-depose89.pdf

"The applicability of this privilege in this case... is likely to be a
point of significant debate," the motion acknowledged.

The Kiriakou defense said the reporters' testimony was needed because it
could be exculpatory for their client, and that the reporters could affirm
that Kiriakou lacked any intent to harm the United States or to benefit a
foreign power.

"The defense anticipates the likely elicited testimony to speak directly
to whether Mr. Kiriakou had the requisite state of mind or was merely
induced into disclosing the information by these witnesses."

The government has objected to the defense proposal, declaring that "It is
also impermissible to disclose classified information to unauthorized
persons, including the media."

But this seems to miss the point.  The Kiriakou defense does not seek to
provide classified information to the reporters.  Rather, "the defense
intends to elicit answers from these witnesses that are expected to include
classified information," though attorneys said they could not specify in
advance what classified information the reporters might possess or reveal.

The defense has also filed an expansive list of categories of classified
information that it intends to disclose at trial, which was unsealed and
released in redacted form this week.  It includes Mr. Kiriakou's entire
personnel file, records describing his role in the capture of Abu Zubaydah,
correspondence with the CIA Publications Review Board and quite a few other
topics.

        http://www.fas.org/sgp/jud/kiriakou/091212-cipa90.pdf

Prosecutors objected that the notice was "vague and overbroad" and smacked
of "graymail."

"The filing purports to provide notice of 75 separate categories of
information that the defense asserts it intends to disclose at a public
trial, including more than 3000 pages of cited examples, all of which refer
to entire sets of or excerpts of documents, without designating what part
or portion of any given page it wishes to use," the government said.

        http://www.fas.org/sgp/jud/kiriakou/092612-resp83.pdf

In support of the proposed disclosures, the Kiriakou defense firmly
reiterated its view of the relevant legal standard at issue in the case.

"To convict Mr. Kiriakou under [the espionage statute], the government
must 'demonstrate the likelihood of [his] bad faith purpose to either harm
the United States or to aid a foreign government,' and Mr. Kiriakou is
entitled to discover, and present, evidence that shows the opposite," the
defense said.

"Evidence that Mr. Kiriakou honorably served his country for fifteen
years, placed his own life at risk to protect the national security, and
received multiple awards and decorations for his service goes to the heart
of the very specific mens rea [intent] element of the Espionage Act, and
directly rebuts any evidence that Mr. Kiriakou acted with a 'bad faith
purpose to... harm the United States."

        http://www.fas.org/sgp/jud/kiriakou/092812-reply91.pdf

OBAMA ISSUES DIRECTIVE ON INTEL COMMUNITY WHISTLEBLOWERS

President Obama yesterday issued Presidential Policy Directive 19 on
"Protecting Whistleblowers with Access to Classified Information."

        http://www.fas.org/irp/offdocs/ppd/ppd-19.pdf

The directive generally prohibits official reprisals against an
intelligence community employee who makes a "protected disclosure"
concerning unlawful activity or "waste, fraud, and abuse." It does not
authorize disclosure of classified information outside of official channels
to the press or the public.

The directive was occasioned by the ongoing failure of Congress to extend
the protections of the Whistleblower Protection Act to intelligence
community employees.

The new presidential directive, reported today by Joe Davidson in the
Washington Post, was welcomed by whistleblower advocacy organizations.

"While this directive is not a panacea, it begins to fill a large void in
whistleblower protections and lays the framework for more government
accountability where it is sorely needed," said Angela Canterbury of the
Project on Government Oversight. "Because the President directs agencies to
create procedures for internal review of claims, we will be very interested
in the rulemaking and strength of the due process rights in practice."

"For the first time, intelligence community employees have free speech
rights to challenge fraud, waste and abuse within agency channels," said
Tom Devine of the Government Accountability Project, while cautioning that
"Until agencies adopt implementing regulations, no one whose new rights are
violated will have any due process to enforce them."

"This policy directive represents a significant breakthrough, but it is no
substitute for Congress to legislate permanent rights for national security
whistleblowers, with third party enforcement the same as for other
employees," Mr. Devine said.

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – Violent Behavior cannot be predicted

VIOLENT BEHAVIOR CANNOT BE RELIABLY PREDICTED, PANEL SAYS

The outbreak of violence by individuals who seek to harm other persons or
institutions cannot be reliably predicted today, the Defense Science Board
said in a new report to the Secretary of Defense.  Instead, efforts to
counter violence should focus on prevention and mitigation of the threat.

The new DSB study on "Predicting Violent Behavior" was initiated in
response to the 2009 Fort Hood shooting in which thirteen people were
killed and dozens wounded allegedly by Army Major Nidal Malik Hasan, who
had not previously been identified as a threat.

        http://www.fas.org/irp/agency/dod/dsb/predicting.pdf

"The state of the art in physiological and neurological sciences today
does not provide useful capability for predicting targeted violence," the
DSB report said.

"While there are promising indicators that might predict aberrant
behavior, severe personality disorders, addiction, and other anti-social
behaviors, the current state of the science is such that the false
positives and false negatives are very high. In addition, developing a
practical means to observe any useful indicators may present a significant
challenge."

In the wake of the Fort Hood shootings, the Defense Department attempted
to develop lists of problematic behaviors that might signal a propensity to
violence.  One such list was the behaviors included in the adjudicative
guidelines for granting (or denying) security clearances.  

        http://www.fas.org/sgp/isoo/guidelines.html

But the use of that list was not justified, the DSB said.  "The Task Force
found little to no relationship between the adjudicative guidelines and
targeted violence."

Moreover, "the Task Force also found that indicator lists are most
effective in the hands of trained professionals and are not an effective
substitute for a more nuanced, comprehensive set of factors developed by
threat-management practitioners. If not handled properly and by trained
personnel, lists can lead to high false-positives with accompanying stigma,
lack of trust, and reluctance to report. Lists also tend to be static and
unless continually revisited the list of indicators becomes less likely to
identify adaptive perpetrators who will purposefully avoid elements of
listed behavior to avoid interdiction."

Overall, the DSB Panel advised, "prevention as opposed to prediction
should be the Department's goal.  Good options exist in the near-term for
mitigating violence by intervening in the progression from violent ideation
to violent behavior."

PRESIDENTIAL ELECTIONS AND NATIONAL SECURITY, MORE FROM CRS

Presidential elections and the possible transition to a new Administration
are potentially a period of heightened national security vulnerability, a
new report from the Congressional Research Service says.

The report distinguishes five phases of the presidential election period,
and proposes concerns relevant to each.  Thre report provides tabulated
listings of US military operations during presidential transition period,
and terrorist incident that have occurred during such transitions.  See
"2012-2013 Presidential Election Period: National Security Considerations
and Options," October 5, 2012:

        http://www.fas.org/sgp/crs/natsec/R42773.pdf

Some other noteworthy CRS products that Congress has not made publicly
available include the following.

Sudan and South Sudan: Current Issues for Congress and U.S. Policy,
October 5, 2012:

        http://www.fas.org/sgp/crs/row/R42774.pdf

U.S. Textile Manufacturing and the Trans-Pacific Partnership Negotiations,
October 5, 2012:

        http://www.fas.org/sgp/crs/row/R42772.pdf

Presidential Appointments, the Senate's Confirmation Process, and Changes
Made in the 112th Congress, October 9, 2012:

        http://www.fas.org/sgp/crs/misc/R41872.pdf

Unemployment: Issues in the 112th Congress, October 5, 2012:

        http://www.fas.org/sgp/crs/misc/R41578.pdf

Antipoverty Effects of Unemployment Insurance, October 4, 2012:

        http://www.fas.org/sgp/crs/misc/R41777.pdf

_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.

The Secrecy News Blog is at:
     http://www.fas.org/blog/secrecy/

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     http://www.fas.org/member/donate_today.html

_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
voice:  (202) 454-4691
twitter: @saftergood

Secrecy News – 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."

        http://www.fas.org/sgp/jud/kiriakou/092612-resp83.pdf

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.

        http://www.fas.org/sgp/jud/kiriakou/100212-resp82.pdf

"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."

        http://www.fas.org/irp/doddir/army/fm1-05.pdf

"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:

        http://www.fas.org/sgp/crs/row/R41856.pdf

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:

        http://www.fas.org/sgp/crs/mideast/RL33546.pdf

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

        http://www.fas.org/sgp/crs/misc/R42769.pdf

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

        http://www.fas.org/sgp/crs/misc/R42768.pdf

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

        http://www.fas.org/sgp/crs/misc/R42763.pdf

New online portal with overview of declassification activity

The National Archives has set up a new online portal that provides an
overview of declassification activity in and around the Arvhices, with
input from the National Declassification Center, the Public Interest
Declassification Board, the Presidential Libraries, and the Interagency
Security Classification Appeals Panel (ISCAP).

        http://www.archives.gov/declassification/

The new section on ISCAP declassification decisions is of particular
interest, since it provides links to the documents that have been newly
declassified at the direction of the ISCAP, which receives appeals from the
public for release of documents that agencies have declined to declassify. 
Documents declassified through the ISCAP process in the past year include
excerpts of several Presidential Daily Briefs from the 1960s, intelligence
reports on various topics, and several documents on strategic nuclear
forces.

        http://www.archives.gov/declassification/iscap/decisions.html

The documents were posted in response to Section 5.3(b)(4) of President
Obama's Executive Order 13526, which required that the ISCAP "appropriately
inform senior agency officials and the public of final Panel decisions on
appeals under sections 1.8 and 3.5 of this order."

The release of the latest collection of documents through ISCAP is
commendable, and its publication online is more than welcome.

        http://www.archives.gov/declassification/iscap/decision-table.html

And yet it is not entirely satisfactory, nor does it seem to comply with
the spirit or the letter of the executive order.  That's because while the
newly posted documents are the products of ISCAP decisions, they are not
the decisions themselves.  And those decisions have not been released.

By definition, every document released through ISCAP represents an error
or a misjudgment by classifiers in the originating agency, who previously
refused to release it to a requester.  Obviously, if the originating agency
had released it, there would have been no appeal to ISCAP, and thus no
occasion for an ISCAP decision to declassify.

But what was the error in each particular case?  Why exactly did ISCAP
overrule the classifiers in the originating agency and order that the
document be released?  And most important:  what are the lessons of each
ISCAP decision for future agency classification and declassification
activity?

These questions have no immediate answer.

The Executive Order stated clearly (section 3.1i) that "agencies shall
consider the final decisions of the [ISCAP] Panel" in conducting their own
declassification programs.  But without any articulation of the bases for
the ISCAP decisions, there is nothing for agencies to consider.  All that
can be said with confidence is that the individual document that has been
released can no longer be withheld.  And we knew that already.

It seems that ISCAP does not prepare formal opinions to justify its
actions.  It holds discussions among its interagency membership, and then
it votes.

But if the ISCAP process is to be more than a retail declassification
operation, producing a meager couple of dozen declassified documents per
year, then it needs to do something more.  One way to proceed would be for
ISCAP to issue a concise Record of Decision for each case.  It could
describe the original agency position against disclosure, the ISCAP's
assessment of that position, and the logic of its decision to overrule the
agency and declassify the document, in whole or in part.

In this way, the Panel's impressive efforts to correct agency
classification errors and misjudgements would have a better chance of
propagating throughout the system.

"The ISCAP decisions site is a work in progress, and will be further
refined to better serve the needs of our users," according to an NDC blog
entry on the site.

        http://blogs.archives.gov/ndc/?p=474

2010 MILITARY INTELLIGENCE BUDGET REQUEST DECLASSIFIED

The Department of Defense this week released a redacted version of the
budget justification for the FY 2010 Military Intelligence Program (MIP).

"The MIP sustains all programs, projects or activities that support the
Secretary of Defense intelligence, counterintelligence, and related
intelligence responsibilities and provides capabilities to meet the
warfighters' operational and tactical requirements whenever and wherever
needed," the document states.

The MIP budget justification for FY 2010, which was submitted to Congress
in 2009, presents dozens of individual military intelligence programs. 
While budget figures have been censored, along with various other
classified matters, the summary descriptions of most of the individual MIP
programs were released more or less intact.

The document (large pdf) was provided to the Federation of American
Scientists in response to a Freedom of Information Act request.

        http://www.fas.org/irp/budget/mip-fy2010.pdf

"In the last several years, we have embarked on a fundamental change to
the concept of defense intelligence - one that balances the unique role of
support to the warfighter with the recognition that today's security
environment crosses traditional organizational domains," the budget
document says.

"The deep integration of defense intelligence into the larger Intelligence
Community, the evolution of our collaboration with homeland defense
counterparts, and the fostering of committed international partnerships are
all outcomes of this fundamental change," wrote James R. Clapper,
then-Under Secretary of Defense (Intelligence) in his introduction to the
budget justification.

In FY 2010, Congress appropriated $27 billion for the Military
Intelligence Program.  The FY 2013 request for the MIP was $19.2 billion. 
The budget appropriation for FY 2012 is to be disclosed by the end of this
month.

        http://www.fas.org/irp/budget/index.html