US Army: Collecting Information on U.S. Persons

Military regulations offer wide latitude in the gathering of
domestic intelligence information.

“Contrary to popular belief, there is no absolute ban on [military] intelligence components collecting U.S. person information,” according
to a 2001 Army intelligence memo.

What’s more, military intelligence agencies can provisionally
“receive” domestic intelligence information that they may not be
legally permitted to “collect.”

“MI [military intelligence] may receive information from anyone,
anytime.”

That point was stressed in the November 5, 2001 memo issued by Lt. Gen.
Robert W. Noonan, Jr., the Deputy Chief of Staff for Intelligence.

DoD and Army regulations “allow collection about U.S. persons
reasonably believed to be engaged, or about to engage, in
International terrorist activities.”

“Remember, merely receiving information does not constitute
‘collection’ under AR [Army Regulation] 381-10; collection entails
receiving ‘for use’,” Gen. Noonan wrote.

“Army intelligence may always receive information, if only to
determine its intelligence value and whether it can be collected,
retained, or disseminated in accordance with governing policy.”

The distinction between “receiving” information (always permitted)
and “collecting” it (permitted only in certain circumstances)
appears to offer considerable leeway for domestic surveillance
activities under the existing legal framework.

This in turn makes it harder to understand why the NSA domestic
surveillance program departed from previous practice.

“It seems to me that there is enough ambiguity in the language that
with a bit of creativity in managing the US persons files there
would have been not too much trouble” applying existing rules to the
NSA program, said John Pike of GlobalSecurity.org, who pointed
Secrecy News to the 2001 Army memo.

See “Collecting Information on U.S. Persons,” Office of the Deputy Chief of Staff for Intelligence, November 5, 2001.

Army Regulation 381-10, “U.S. Army Intelligence Activities,” was
reissued on November 22, 2005, but up to now it has not been
publicly disclosed.

However, the previous edition of AR 381-10, dated July 1, 1984 (and in effect
until December 22, 2005), is available here.

The Status of the DCI Following Intel Reform

The intelligence reform legislation of 2004 abolished the position of Director of Central Intelligence, transferring many of its functions to the new Director of National Intelligence.

This raised a technical legal question as to whether the DCI who was serving at the time, Porter J. Goss, would need to be formally reappointed to the position of Director of the Central Intelligence Agency (DCIA).

The question was analyzed at length by the Justice Department Office of Legal Counsel (OLC) in a January 2005 memo that has just been released.

To cut to the chase, the OLC concluded “that when the Intelligence Reform Act takes effect the then-current DCI would not require a new appointment to serve as DCIA.”

See “Status of the Director of Central Intelligence Under the National Security Intelligence Reform Act of 2004,” Justice Department Office of Legal Counsel, January 12, 2005 (published January 23, 2006).

NRO Operational Files Exemption in Dispute

In the past, the National Reconnaissance Office, the agency that develops spy satellites, has released unclassified portions of its budget request documents. But last year, the NRO refused to do so, claiming that these unclassified materials fall under the “operational files” exemption to the Freedom of Information Act.

A lawsuit brought by the Federation of American Scientists is challenging that claim. The two parties have just finished briefing the case with replies to each other’s opposing motions.

“The defendant [NRO] has shown by a sworn declaration which is clear, specific, and reasonably detailed that the requested records are properly designated as operational,” the NRO concluded (pdf).

No, “since all parties agree that the requested record has been disseminated beyond its originating operational file, the conclusion is inescapable that the requested record must be processed under FOIA,” we argued (pdf).

At this point, the parties are largely talking past each other, and it will be up to the judge, the Hon. Reggie B. Walton, to resolve the dispute.

The latest pleadings in Aftergood v. NRO may be found here.

Inadvertent Disclosures of Classified Nuclear Info

The Department of Energy has released a sanitized version of its nineteenth report to Congress on inadvertent releases of classified nuclear weapons information through the declassification process.

Out of more than 150,000 pages at the National Archives that were reviewed by DOE, 16 pages contained Restricted Data, and another 99 pages contained Formerly Restricted Data (which is also classified).

As in the past, the most common type of inadvertent release concerned the locations of historical nuclear weapons storage depots. However, some design-related information was also inadvertently released. All of this material has now been withdrawn from public access.

See “Nineteenth Report to Congress on Inadvertent Releases of Restricted Data and Formerly Restricted Data Under Executive Order 12958,” November 2005 (released in declassified form January 2006).

Notable Rules and Regs

Some notable rules and regulations on security policy that have recently been published include the following:

“National Industrial Security Program Directive Number 1,” Information Security Oversight Office, January 27, 2006.

“International Interchange of Patent Rights and Technical Information,” Department of Defense Instruction 2000.03, January 17, 2006.

“Naturalization of Aliens Serving in the Armed Forces of the United States and of Alien Spouses and/or Alien Adopted Children of Military and Civilian Personnel Ordered Overseas,” Department of Defense Instruction 5500.14 January 4, 2006.

“Department of the Navy Policy for Content of Publicly Accessible World Wide Web Sites,” Secretary of the Navy Instruction 5720.47B, December 28, 2005.

Will the President address science policy, education and biosecurity in his State of The Union?

FAS hopes the President will take the opportunity to send the right message to the American public and ditch political rhetoric in his State of the Union.

FAS is deeply concerned that the nation is headed in the wrong direction on critical science issues that affect our health, national security, environment and economic future. The President has an opportunity to change that starting with his State of the Union address on January 31st. Specifically, we would like the President to take scientific research funding, science education funding, and biosecurity more seriously then he has in the past.

Continue reading

Plutonium getting a mention in State of the Union Address?

A couple of articles in the energy trade press [link] have said that President Bush may announce a major new energy initiative in the State of the Union Address. This is a program that has been in planning for over a year. Originally it was called the Global Nuclear Energy Initiative, or GNEI, pronounced “genie,” but apparently the Administration decided that acronym was a bit too cute, with too many “getting out of the bottle” snipes. More recent articles in the Washington Post [link] and Wall Street Journal report that the program has been renamed the Global Nuclear Energy Partnership (GNEP) and is not quite ready for prime time so will probably not appear in the Address but will be unveiled in a couple of months. [link] If it does get a mention, I will return to this on Wednesday.

By all accounts, the centerpiece of GNEP will be plutonium reprocessing and recycling. This is one of those ideas that is great in theory but doesn’t work in practice. The plan is to reduce nuclear waste by repeatedly recycling it through a new (in the US at least) type of power reactor, a fast neutron reactor. [more] Continue reading

Technology Security

Hello, I’m Anne Fitzpatrick. I work on international collaborations in computing, American and Russian nuclear weapons, and science and technology policy and culture. I also moonlight in the area of contemporary history of science and technology. In this blog I will be discussing: scientific computing technology and general information technology (IT) on the domestic and global fronts; the United States’ nuclear weapons complex, its national laboratories, and their Russian counterparts; and the science and technology scene in the former Soviet Union. I will write about major current events in my specialty areas, and to keep things lively, occasionally blog on surprise topics that do not fall exactly into any of these categories. Blog on!

Nuclear Information Project

I am Hans M. Kristensen, director of the Nuclear Information Project at FAS. I will be blogging facts, analysis, and declassified documents about new nuclear weapon systems, changes in existing nuclear forces, and developments in the policy and doctrine that guide the use of nuclear weapons.

You may have noticed that the Cold War is over and the total nuclear weapons stockpiles are decreasing. But, surprise, all the nuclear weapons states continue to modernize their forces as if the weapons are going to be around for a very long time in significant numbers. And the nuclear planners have turned out to be very innovative when it comes to creating new missions for the remaining weapons.

I also co-author the Nuclear Notebook in the Bulletin of the Atomic Scientists and the World Nuclear Forces overview in the SIPRI Yearbook.

Do Embedded Reporters Sign Non-Disclosure Agreements?

Puzzled by references to non-disclosure agreements signed by reporters who are embedded with U.S. military forces, Secrecy News requested a copy of such a non-disclosure agreement from the Pentagon.

But there isn’t one.

“The Office of the Assistant Secretary of Defense for Public Affairs has advised this Office that there is no non-disclosure agreement for access to classified material for embedded reporters,” wrote Chief DoD FOIA officer Will Kammer in response to our Freedom of Information Act request.

What there is, however, is a somewhat informal process of negotiation by which access is granted to a reporter in exchange for an agreement to conduct a security review.

“The [unit] commander may offer access if the reporter agrees to a security review of their coverage. Agreement to security review in exchange for this type of access must be strictly voluntary and if the reporter does not agree, then access may not be granted,” according to February 2003 public affairs guidance on embedded reporters.

“If a security review is agreed to, it will not involve any editorial changes; it will be conducted solely to ensure that no sensitive or classified information is included in the product. If such information is found, the media will be asked to remove that information from the product and/or embargo the product until such information is no longer classified or sensitive.”

“This paragraph does not authorize commanders to allow media access to classified information.”

See Mr. Kammer’s letter and the February 2003 public affairs guidance on embedded reporters here.