Document Denied: DHS Boosts Cooperation with Russian Intel

Two new U.S. Secret Service agents are to be stationed in Moscow this year, in accordance with a secret memorandum of understanding between the Department of Homeland Security and Russia’s Federal Security Service (FSB), one of that country’s foreign intelligence agencies. (Correction: The FSB focuses primarily on internal security. Russia’s principal foreign intelligence agency is the Sluzhba Vneshney Razvedki or SVR.)

The four-page memorandum of understanding was signed in November 2006 by DHS Secretary Michael Chertoff and the FSB Director.

In response to a Freedom of Information Act request from the Federation of American Scientists, DHS denied (pdf) the release of any portion of the document, citing FOIA exemption (7)(E) which protects law enforcement information.

The denial is being appealed. DHS officials have independently disclosed some of the contents of the memorandum.

Information about the document was first reported last December by Russia’s Tass News Agency. The DHS-FSB memorandum “envisages the exchange of information between the two sides on border control and related matters,” according to a Tass report.

DHS Acting Assistant Secretary Paul Rosenzweig described the agreement in a December 20, 2006 briefing.

“One of the products of [the new memorandum] is that either already or within the new year there will be two new Secret Service agents stationed in Moscow. [The Secret Service is now a DHS component — SN] That’s a return to a post that has been vacant for quite some time which we’re very pleased about. There remain several other DHS people there already.”

“With Russia in particular, there’s been some very strong positive movement in the past six months, as reflected by the signing of this agreement,” Mr. Rosenzweig said.

House Adopts Open Govt Bills

The House of Representatives yesterday adopted a slate of open government bills by large, veto-proof majorities in the face of sharp opposition from the Bush White House.

“Today, Congress took an important step towards restoring openness and transparency in government,” said Rep. Henry Waxman, who expeditiously moved the bills through his Committee on Oversight and Government Reform.

“Over the past six years, the Bush Administration has done everything it can to operate in secret, to avoid public scrutiny, and to limit congressional oversight,” Rep. Waxman said. “I am pleased that Congress is reversing this course by passing four critically important good government bills with strong bipartisan support.”

The vote coincided with Sunshine Week, a national campaign by media organizations and others to promote values of openness and accountability.

The House debate on amendments to the Freedom of Information Act, adopted by a vote of 308-117, is here. The White House statement of opposition is here (pdf).

The debate on provisions to strengthen whistleblower protections (adopted 331-94) is here. The White House opposition is here (pdf).

The House debate on amendments to the Presidential Records Act which, among other things, would nullify President Bush’s executive order on the subject (adopted 333-93) is here. And the White House statement of opposition is here (pdf).

A fourth bill adopted by the House would require increased disclosure of donors to presidential libraries.

AP: More Than a Million Pages Removed from Archives

More than 1 million pages of historical government records have been removed from public access at the National Archives on asserted security grounds since September 2001, according to an Associated Press investigation.

Some of the records are more than 100 years old.

See “Government guards papers from public eye” by Frank Bass and Randy Herschaft, Associated Press, March 14.

To illustrate the sometimes questionable nature of the document withdrawals, the Associated Press has posted an interactive “quiz” for readers (thanks to

New Army Regulation Redefines Leadership

A new U.S. Army regulation (PDF) “updates the definition of leadership and introduces the concept of the Pentathlete.”

The regulation identifies various aspects and levels of leadership, describes the warrior ethos and its place in Army culture, and discusses the responsibility of leaders and how they are trained.

Pentathletes in this context “are multi-skilled, innovative, adaptive, and situationally aware professionals who demonstrate character in everything that they do, are experts in the profession of arms, personify the warrior ethos in all aspects from war fighting to statesmanship to enterprise management, and boldly confront uncertainty and solve complex problems.”

See “Army Leadership,” Army Regulation AR 600-100, March 8, 2007.

Small Fuze – Big Effect

“It is not true,” British Defence Secretary Des Browne insisted during an interview with BBC radio, that a new fuze planned for British nuclear warheads and reported by the Guardian will increase their military capability. The plan to replace the fuze “was reported to the [Parliament’s] Select Committee in 2005 and is not an upgrading of the system; it is merely making sure that the system works to its maximum efficiency,” Mr. Browne says.

The minister is either being ignorant or economical with the truth. According to numerous statements made by US officials over the past decade, the very purpose of replacing the fuze is – in stark contrast to Mr. Browne’s assurance – to give the weapon improved military capabilities it did not have before.

The matter, which is controversial now because Britain is debating whether to build a new generation of nuclear-armed submarines, concerns the Mk4 reentry vehicle on Trident D5 missiles deployed on British (and US) ballistic missile submarines. The cone-shaped Mk4 contains the nuclear explosive package itself and is designed to protect it from the fierce heat created during reentry of the Earth’s atmosphere toward the target. A small fuze at the tip of the Mk4 measures the altitude and detonates the explosive package at the right “height of burst” to create the maximum pressure to ensure destruction of the target. The new fuze will increase the “maximum efficiency” significantly and give the British Trident submarines hard target kill capability for the first time.
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Janet Reno on Leaks (2000)

The steps by which the Justice Department conducts investigations of unauthorized disclosures of classified information (“leaks”) were described by then-Attorney General Janet Reno in 2000 testimony before a closed hearing of the Senate Intelligence Committee.

At a moment when some, such as Senator Jon Kyl, are proposing to enact new statutory penalties against leaks, it is noteworthy that the Attorney General concluded that such penalties are unnecessary.

“We believe that the criminal statutes currently on the books are adequate to allow us to prosecute almost all leak cases,” she testified.

Significantly, “We have never been forced to decline a prosecution solely because the criminal statutes were not broad enough.”

(A similar judgment was offered by Attorney General John Ashcroft in a 2002 report to Congress: “I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified.”)

Ms. Reno’s testimony, formally released under the Freedom of Information Act last week, provides perhaps the best single overview of the Justice Department’s handling of leak cases, from the initial “crime report” (sometimes called a “crimes report”) that advises the Justice Department of the leak, to the agency’s submission of answers to eleven specific questions about the leak, to the difficulties of conducting an investigation and the Department’s decision whether to prosecute.

“While we are prepared to prosecute vigorously those who are responsible for leaks of classified information,… I also want to say that the Department of Justice believes that criminal prosecution is not the most effective way to address the leak problem,” she said.

“In addition to the difficulties of identifying leakers, bringing leak prosecutions is highly complex, requiring overcoming defenses such as apparent authority, improper classification, and First Amendment concerns, and prosecutions are likely to result in more leaks in the course of litigation.”

“In general, we believe that the better way to address the problem of leaks is to try to prevent them through stricter personnel security practices, including prohibitions of unauthorized contacts with the press, regular security reminders, and through administrative sanctions, such as revocation of clearances,” she told the Senate Intelligence Committee.

The Committee proceeded to endorse a new anti-leak statute against her advice. It was enacted by Congress and then vetoed in November 2000 by President Clinton.

The Justice Department Office of Public Affairs released the Reno testimony in October 2003 to reporters from the Washington Post and the Associated Press, who briefly quoted it in passing. But others who requested a copy, including Secrecy News, were told to file a Freedom of Information Act request.

Following a pointless and wasteful three-and-a-half year “review” by the Justice Department, the testimony has now been formally released under the FOIA without redaction.

But leak controversies remain ever green, even aside from the proposed Kyl Amendment, the ongoing prosecution of two former AIPAC officials for allegedly mishandling classified information, and so on.

The New York Sun reported that Rep. Tom Davis, the ranking Republican on the House Oversight Committee, rebuked the Justice Department last week for failing to properly account for leak investigations that had been terminated. See “Gonzales Said To Stonewall a GOP Query” by Josh Gerstein, New York Sun, March 12.

Scraps From CRS

Some recent products of the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“China and Proliferation of Weapons of Mass Destruction and Missiles: Policy Issues,” updated January 31, 2007.

“National Guard Personnel and Deployments: Fact Sheet,” updated January 10, 2007.

and courtesy of U.S. News and World Report’s “Bad Guys Blog,” “Drug Trafficking and North Korea: Issues for U.S. Policy,” updated January 25, 2007.

Legal Support to Military Operations

The conduct of warfare today raises challenging new legal issues that require prompt and operationally sound responses, according to a new publication (pdf) from the Joint Chiefs of Staff.

“Modern military operations take place in an increasingly complex geo-political environment. The classic scenario of defending against cross-border aggression represents only one of the challenges facing current [joint forces]. Stability operations, foreign humanitarian assistance operations, and civil-military operations present increased requirements for direct legal support,” the new document states.

“Military lawyers were true combat multipliers in Iraq,” said General David H. Petraeus, who is now U.S. commander in Iraq. “I tried to get all the lawyers we could get our hands on — and then sought more.”

The missions and functions of military lawyers and organizations are described in “Legal Support to Military Operations,” Joint Publication JP 1-04, March 1, 2007.

FBI Committed Numerous Violations in Info Requests

The Federal Bureau of Investigation made numerous “improper and illegal” uses of the investigative tool known as “national security letters,” by which it gathers information in national security cases, a report (large pdf) by the Justice Department Inspector General found.

The abuses identified by the Inspector General “did not involve criminal misconduct,” the report said. “However, the improper or illegal uses we found included serious misuses of national security letter authority.”

These included the collection of information not permitted by law, the collection of information on persons not properly the subject of an FBI investigation, the failure to identify and report such errors, and quite a bit more.

See “A Review of the Federal Bureau of Investigation’s Use of National Security Letters,” DoJ Office of Inspector General, March 2007 (199 pages in a large 35 MB 12 MB PDF file) (Thanks to Prof. Edward P. Richards for providing a compressed, searchable version of this document).

In a statement today, the FBI did not dispute the new report’s conclusions.

“The Inspector General conducted a fair and objective review of the FBI’s use of a proven and useful investigative tool,” said Director Robert S. Mueller, III, “and his finding of deficiencies in our processes is unacceptable.”

The development of the FBI’s counterintelligence role in the crucible of pre-World War II security concerns is detailed in an interesting new book from the excellent University of Kansas Press. See “The Origins of FBI Counterintelligence” by Raymond J. Batvinis, Univ of Kansas Press, March 2007.