Invention Secrecy Up Slightly in 2007

At the end of Fiscal Year 2007, there were a total of 5,002 invention secrecy orders in effect under the Invention Secrecy Act of 1951, up from 4,942 the year before.

U.S. government agencies imposed secrecy orders on 53 patent applications filed by private inventors in FY 2007, prohibiting their disclosure or export, according to statistics obtained by Secrecy News this week from the U.S. Patent and Trademark Office.

The so-called “John Doe” secrecy orders imposed on private inventors are a constitutional anomaly since they appear to infringe on private speech. But their constitutionality has never been successfully challenged in court.

See the latest invention secrecy statistics here. Related background on invention secrecy is here.

Classification Markings, Now and Then

The Information Security Oversight Office has published an expanded guide explaining how to properly mark classified documents. See “Marking Classified National Security Information” (pdf), October 2007.

A 1972 monograph prepared at the National Archives reviews the history of information control markings on military documents back to the 19th century and traces their development up to World War II. Such markings represent part of the pre-history of today’s national security classification system.

See “Origins of Defense-Information Markings in the Army and Former War Department” (pdf) by Dallas Irvine, National Archives Staff Information Paper, 1972.

A sizable collection of old military regulations relating to protection of confidential information is presented in a series of annexes to the paper (pdf).

Reliable Replacement Warhead Is a Symptom, Not the Solution

Last week, the Jasons, a group of distinguished scientists who advise the Department of Defense, released the unclassified summary of their review of the Reliable Replacement Warhead, or RRW. Walter Pincus covered the report in the Washington Post. The summary is posted on the FAS website.

Although almost everything about nuclear weapons and their design is classified, the unclassified summary contains many hints of problems with the RRW that are yet to be overcome.
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Bill on Contractor Liability Raises Intel Agency Concerns

Last week the House of Representatives passed a bill to extend federal legal jurisdiction to crimes committed abroad by U.S. contractors in war zones such as Iraq, so that such crimes could be prosecuted in U.S. courts.

But before the bill (H.R. 2740) was passed, it triggered alarms by those who were concerned that its provisions could undermine U.S. intelligence activities.

“The bill would have unintended and intolerable consequences for crucial and necessary national security activities and operations,” the White House said without elaboration in an October 3 statement (pdf) outlining its opposition to the bill.

Congressman J. Randy Forbes (R-VA) spelled out those intelligence agency concerns in more detail on the House floor.

For example, he said, “If a clandestine asset was implicated in a crime, investigating and arresting that asset under traditional criminal procedures could expose other assets and compromise critical intelligence activities.”

More fundamentally, he complained, the new bill “applies the entire criminal code to the new category of potential offenders and could implicate the authorized business of the intelligence community employees and contractors.”

Rep. Forbes therefore introduced a motion stating that “Nothing in this Act shall be construed to affect intelligence activities that are otherwise permissible prior to the enactment of this Act.”

The motion was approved, but not without some critical commentary.

“The [Forbes] amendment raises serious questions about the activities its proponents may be seeking to protect,” said Rep. David Price (D-NC), who authored the new bill.

“Given that my bill only targets activities that are unlawful, why do my colleagues feel the need to clarify that it does not affect activities that are permissible?”

“What activities are contractors carrying out that are permissible but not lawful?” Rep. Price wondered aloud.

“If there are private, for-profit contractors tasked with duties that require them to commit felony offenses, Congress needs to know about it. Such a revelation would point to a need for a serious debate about whether we are using contractors appropriately,” he said.

See the October 4 House debate on the new bill, the “Military Extraterritorial Jurisdiction Act Expansion and Enforcement Act of 2007,” which was passed by a large majority.

The awkward fact is that intelligence collection operations are routinely conducted in violation of established laws, including international legal norms to which the United States Government is formally committed.

“The CS [clandestine service] is the only part of the IC [intelligence community], indeed of the government, where hundreds of employees on a daily basis are directed to break extremely serious laws in counties around the world in the face of frequently sophisticated efforts by foreign governments to catch them,” according to a 1996 House Intelligence Committee staff report called IC21 (chapter 9, at page 205).

“A safe estimate is that several hundred times every day (easily 100,000 times a year) DO [Directorate of Operations] officers engage in highly illegal activities (according to foreign law) that not only risk political embarrassment to the US but also endanger the freedom if not lives of the participating foreign nationals and, more than occasionally, of the clandestine officer himself.”

1997 Report of the Overseas Jurisdiction Advisory Committee

A decade ago Congress established an advisory committee to examine the very issues of contractor liability in war zones abroad that have recently been in the headlines again.

The Overseas Jurisdiction Advisory Committee spent a year analyzing the state of the law, found “significant jurisdictional gaps” in the government’s ability to prosecute crimes committed abroad by contractors, and recommended legislative remedies.

The Committee’s extensive report (pdf) laid the foundation for the 2000 Military Extraterritorial Jurisdiction Act, which applied to defense contractors, and which would be extended by now-pending legislation to non-defense contractors as well.

Up to now, the Committee’s report has not been available online, rendering it practically inaccessible. A copy of the report obtained by Secrecy News is now available on the Federation of American Scientists web site.

See the Report of the Advisory Committee on Criminal Law Jurisdiction Over Civilians Accompanying the Armed Forces in Time of Armed Conflict (Overseas Jurisdiction Advisory Committee), April 1997.

JPL Scientists Gain Reprieve from Intrusive Investigations

A federal appeals court on Friday granted a temporary injunction blocking implementation of a policy that would require scientists at the Jet Propulsion Laboratory to undergo intrusive background investigations as a condition of continued employment.

The requirement stems from President Bush’s Homeland Security Presidential Directive 12, under which all federal employees and contractors are obliged to obtain secure forms of federal identification.

As interpreted by NASA, this provision means that JPL employees must not only provide verifiable proof of identity, which all are willing to do, but must also accept an open-ended background investigation into their personal conduct.

Under the NASA standard, according to critics, “any investigator” from “any federal agency” would be permitted to collect “any information” regarding the employee.

Dozens of JPL scientists said no.

A lower court rejected their request for an injunction against the policy on October 3. But the appeals court granted it on October 5, until further proceedings can be held. For background on the case see here.

“We cannot drive scientists into our laboratories,” said President Truman in a September 13, 1948 speech to the AAAS, “but, if we tolerate reckless or unfair attacks, we can certainly drive them out.”

Two More Chinese SSBNs Spotted

China appears to have launched two more SSBNs.

By Hans M. Kristensen (BLOG UPDATED OCTOBER 10, 2007)

China appears to have launched two more ballistic missiles submarines from the Bohai shipyard at Huludao approximately 400 km east of Beijing. This could bring to three the number of Jin-class (Type 094) nuclear-powered ballistic missile submarines (SSBNs) launched by China in the past three to four years.

The two submarines were discovered during analysis of newly published commercial satellite images on Google Earth. This is the second time in three months that FAS has discovered new Chinese ballistic missile submarines on commercial satellite images. The first time was in July 2007, when the first Jin-class was disclosed on the FAS Strategic Security Blog.

The submarines on the new image have the same dimensions as the previous submarine.
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GAO Seeks Greater Role in Oversight of Intelligence

Congressional oversight of intelligence should be augmented by the assistance of specially-cleared investigative teams from the Government Accountability Office, say some congressional leaders, and GAO officials appear eager to assume the task.

“The need for more effective oversight and accountability of our intelligence community has never been greater,” said Senator Daniel Akaka (D-HI) earlier this year. “Yet the ability of Congress to ensure that the intelligence community has sufficient resources and capability of performing its mission has never been more in question.”

Sen. Akaka introduced pending legislation (S. 82) that would reaffirm the ability of the GAO to conduct audits and investigations of U.S. intelligence agencies at the request of a congressional committee. Similar legislation has been introduced in the House (H.R. 978). Proponents say the legislation could receive favorable consideration next year. (The 2008 intelligence authorization bill, passed in the Senate today, does not address the matter.)

“I believe that there are many areas in which GAO can support the intelligence committees in their oversight roles,” said David M. Walker, Comptroller General of the United States and head of the GAO. Among the areas he identified are intelligence acquisition and contract management, human capital management, information technology architectures and systems, and business transformation efforts.

“We have significant knowledge and experience that can be of benefit to the Intelligence Community in connection with a broad range of transformation issues,” he stated.

Mr. Walker expressed his support for the Akaka bill and for an enhanced GAO role in intelligence oversight in a previously unpublished March 1, 2007 letter (pdf) to the Senate Intelligence Committee.

But the idea of greater GAO involvement in intelligence oversight was sharply discouraged by Director of National Intelligence J. Michael McConnell, who argued that the GAO could damage delicate relations between the intelligence agencies and the oversight committees.

“If not moderated, self-initiated action by the GAO or action on behalf of non-oversight Committees could undermine the ability of Intelligence Committee leadership to direct or stay abreast of oversight activities, and could risk upsetting the historic balance struck between the two branches of government in national security matters,” DNI McConnell wrote in a March 7 letter (pdf) to the Senate Intelligence Committee.

The DNI’s concerns are groundless or else could be remedied by simple modifications to the Akaka bill, responded Mr. Walker (pdf) on March 16.

The GAO/DNI correspondence was entered into the record of a March 21, 2007 hearing of the Senate Homeland Security Committee which is soon to be published. Copies were obtained in advance by Secrecy News.

The history of GAO attempts to engage in intelligence oversight dating back to the 1950s was examined in depth by Frederick M. Kaiser in “GAO Versus the CIA: Uphill Battles Against an Overpowering Force,” International Journal of Intelligence and Counterintelligence, 15:330-389, 2002.

Obama Would “Reverse Policy of Secrecy”

Democratic Presidential candidate Senator Barack Obama “will reverse this [Bush Administration] policy of secrecy,” his campaign stated this week, and he addressed the subject in a high-profile address at DePaul University on October 2.

“I’ll lead a new era of openness,” he said.

“I’ll turn the page on a growing empire of classified information, and restore the balance we’ve lost between the necessarily secret and the necessity of openness in a democratic society by creating a new National Declassification Center.”

The Obama campaign said the proposal was based upon a recommendation of the 1997 Moynihan Commission on Secrecy, and that the Center would “serve as a clearinghouse to set rules and regulations for declassification for federal agencies, and to make declassification secure but routine, efficient, and cost-effective.”

“We’ll protect sources and methods, but we won’t use sources and methods as pretexts to hide the truth. Our history doesn’t belong to Washington, it belongs to America,” Sen. Obama said.

This appears to be the most extensive discussion of secrecy and transparency issues in the presidential campaign to date. The subject was briefly addressed by Senator Clinton in her online campaign literature.

As far as could be determined, no Republican candidate has spoken out against current secrecy policy or advocated increased transparency. However, former Senator Fred Thompson issued a report on government secrecy that urged greater openness when he was chairman of the Senate Governmental Affairs Committee in 1998 (Sen. Rept. 105-258).

DoD Doctrine on Civil Support

The use of U.S. military assets and capabilities in a domestic, civilian context is both politically and legally sensitive. A new Defense Department publication (pdf) defines military doctrine concerning such “civil support” missions, which might include disaster relief, emergency response or support to law enforcement.

“Introducing federal forces into an otherwise civil response situation requires a clear understanding of authorities and their limits.”

The new publication aims to provide such an understanding.

“DOD components do not perform any function of civil government unless authorized,” the document states.

See “Civil Support,” Joint Publication 3-28, 14 September 2007.