Reducing Controls on Unclassified Information

To reduce unnecessary restrictions on unclassified information, Congress should require agencies to publish more of their unclassified records, we suggested in a letter (pdf) to the House Intelligence Committee this week.

A White House policy announced last month to establish a government-wide standard for “controlled unclassified information” (CUI) may exacerbate existing barriers to public access, even sweeping up embargoed press releases into a formal control category.

Instead of facilitating broad information sharing, as intended, CUI could end up as the equivalent of a fourth level of classification that tends to prohibit public access to information that has not been specifically approved for release.

One way to avoid that outcome is to increase the routine disclosure of unclassified records of public interest.

“In parallel with the CUI process, Congress should mandate affirmative new disclosure requirements that will directly counteract the tendency to control information unnecessarily,” I wrote in a letter to Rep. Anna Eshoo of the House Intelligence Committee.

“Specifically, for example, I would urge legislation requiring the DNI Open Source Center to publish all or most of its unclassified analytical products.”

Rep. Eshoo had invited comments on the new CUI policy. Our June 16 reply is here.

A hearing was held last week on a bill introduced by Rep. Jane Harman to require the Department of Homeland Security by statute to adopt the new CUI policy. Witnesses included Meredith Fuchs of the National Security Archive, Patrice McDermott of and Caroline Fredrickson of the ACLU. Their prepared statements are available here.

Various Intelligence Hearings and Directives

Newly published hearing records and Pentagon directives concerning intelligence policy include the following.

A House Intelligence Subcommittee examined intelligence community personnel security policy in “Security Clearance Reform,” February 27, 2008.

“National Security Letters: The Need for Greater Accountability and Oversight” was the subject of a Senate Judiciary Committee hearing on April 23, 2008.

The Senate Intelligence Committee considered “Modernization of the Foreign Intelligence Surveillance Act” in a May 1, 2007 hearing.

“DoD Implementation of the Joint Intelligence Community Duty Assignment (JDA) Program” is the response to a DNI policy to promote employee rotations throughout the intelligence bureaucracy. See DoD Instruction 1400.36 (pdf), June 2, 2008.

Another new DoD Instruction (3305.16) addresses “DoD Measurement and Signature Intelligence (MASINT) Training” (pdf), June 12, 2008.

Thanks to Stewart Mott

Stewart R. Mott, the political activist and philanthropist who died last week, was a consistent supporter of the FAS Project on Government Secrecy.

A man of many appetites, he seemed to derive pleasure from giving away money to support causes he believed in. Luckily for us, open and accountable government was one of those causes. For fifteen years, he sent us checks that helped anchor and sustain this Project and Secrecy News.

“The disadvantages of being wealthy are, in my experience, few,” he told Tim Weiner of the New York Times in a video interview from 2006.

A June 14 Times obituary, “Stewart R. Mott, 70, Offbeat Philanthropist, Dies,” by Douglas Martin, captures some of his eccentricities and his willful non-conformism.

But his capacity for kindness, not his flamboyance, was his most attractive quality. We are in his debt.

Understanding President Bush’s FY2009 Biodefense Budget Request

Today the American Association for Advancement in Science (AAAS) Center for Science, Technology and Security Policy sponsored a briefing on Capitol Hill entitled “Understanding President Bush’s FY2009 Biodefense Budget Request.” Dr. Alan Pearson of the Center for Arms Control and Nonproliferation was the featured speaker at the event and his presentation was followed up by comments from distinguished roundtable panelists.

Dr. Pearson has done an in-depth analysis of federal biodefense funding and his full report “Federal Funding for Biological Weapons and Defense, Fiscal Years 2001 to 2009” is available online. Today Dr. Pearson presented data from this report and highlighted some trends. On the whole, since FY02, federal biodefense funding has remained relatively consistent between 5 and 7 billion dollars each year. In addition to this, Project BioShield received 3.3 billion dollars in FY04 and FY05 and is slated to receive an additional 2.175 billion in FY09 (which will bump total FY09 spending to nearly 9 billion). Overall, the bulk of funding is received by the Department of Defense, the National Institutes of Health, and the Center for Disease Control and Prevention. More than half of the funding goes towards research, development, testing and evaluation (RDT&E) as well as medical countermeasures procurement and stockpiling. In general, funding for these activities as well as surveillance and food and agriculture needs has been increasing since FY03, but money provided for state and local hospital preparedness is actually declining.

Dr. Pearson also pointed out that funding for prevention projects as compared to RDT&E projects decreased to about 3% of total biodefense spending immediately following September 11, 2001. For FY08 and FY09, funding has returned to 7%, which is approximately equal to the pre-9/11 levels. Other trends Pearson mentioned were the increased focus on global engagement as opposed to focusing on the former Soviet Union, and an increased emphasis on infectious disease surveillance, biosafety and biosecurity.

Immediately following Dr. Pearson’s presentation the roundtable panelists each added a few comments of their own. Dr. Brad Smith of the UPMC Center for Biosecurity said a few words about medical countermeasures. Specifically he noted that this really isn’t a large amount of money in defense terms, and likely isn’t adequate for the long term nature of drug development and testing to protect the entire nation.

Dr. Gerald Epstein from the Center for Strategic and International Studies continued by pointing out that this really isn’t a problem that can be addressed using an export control model as has been done in the past for nuclear material. In this case the spread of biotechnology is necessary to promote long-term capacity building worldwide, and the dual-use nature of it presents the security problem.

Dr. Eric Toner of the UPMC Center for Biosecurity briefly brought up the lessons learned from the 2001 anthrax attacks. He noted that hospitals are better prepared today to handle an event and have greatly improved the communications networks within their region and with first responders.

Dr. James Roth from Iowa State University discussed agriculture and food defense. He argued that this sector is underfunded because the U.S., since the end of World War II, has always had plenty of (cheap) food available. This has dramatically changed, and now the lack of agriculture and food security present huge vulnerabilities.

Finally, Dr. Georges Benjamin from the American Public Health Association talked about infectious disease surveillance and public health preparedness. He highlighted the fact that within the U.S. there is no culture of civilian preparedness; that most people have not recognized this issue as part of their daily lives and have not made family disaster plans.

Secrecy News Purged from State Dept History Mailing List

Secrecy News was removed from the distribution list for the U.S. State Department history publication “Foreign Relations of the United States” (FRUS) after we reported on errors in several FRUS volumes on March 24 and 26, 2008.

A spokesman for the State Department Historian’s Office confirmed that officials had ordered the removal of Secrecy News from the FRUS mailing list in response to our critical coverage.

In an email message to the series editor yesterday, I asked the Historian’s Office (HO) to reconsider its action. To do so would serve the best interests of FRUS, I suggested.

“I know that a sizable fraction of my Secrecy News mailing list (which now exceeds 13,500 self-selected subscribers) has an interest in FRUS publications. Many of those subscribers are unlikely to be part of other existing networks of academics and historians through which news of FRUS is disseminated,” I wrote.

“I would also willingly publish any criticism of my own writing that HO personnel or HAC [Historical Advisory Committee] members felt was warranted,” I added.

The request to reinstate Secrecy News on the FRUS mailing list awaits a decision by the State Department Historian, Dr. Marc J. Susser.

A New DNI Directive on the National Intelligence Council

The Director of National Intelligence this week issued a new Intelligence Community Directive (pdf) that defines the structure and mission of the National Intelligence Council (NIC).

“The NIC consists of the senior-most intelligence analysts supporting the DNI in carrying out responsibilities as head of the IC and as the principal adviser to the President, the NSC, and the HSC for intelligence matters related to national security,” the directive explains.

“The NIC produces coordinated assessments of the IC’s views on critical national security issues. The NIC’s flagship product is the National Intelligence Estimate, which provides the authoritative written judgments of the IC on national security issues for the United States Government.”

See Intelligence Community Directive ICD-207, “National Intelligence Council,” June 9, 2008.

The most recent unclassified product of the NIC that has been publicly disclosed is “Disruptive Civil Technologies: Six Technologies With Potential Impacts on US Interests Out to 2025” (pdf), Conference Report, April 2008.

Tuberculosis and More from CRS

Some new reports from the Congressional Research Service obtained by Secrecy News that have not been made readily available to the public include the following (all pdf).

“Tsunami Detection and Warnings for the United States,” May 28, 2008.

“Nanotechnology: A Policy Primer,” May 20, 2008.

“Nanotechnology and U.S. Competitiveness: Issues and Options,” May 15, 2008.

“The Army’s M-4 Carbine: Background and Issues for Congress,” May 30, 2008.

“Tuberculosis: International Efforts and Issues for Congress,” updated May 1, 2008.

“Russia’s Economic Performance and Policies and Their Implications for the United States,” May 30, 2008.

The “What if?” of Dual-Use Research Awareness

By Michael Stebbins, originally at Science Progress.

The principle is simple. The products, information and techniques of some life sciences research could be misused for nefarious purposes, such as bioterrorism, and the scientific community should do everything it can to prevent such misuse without impeding research progress. What is unclear is what steps scientists should take when they have concerns about such “dual-use” research.

The problem is that we (myself included) have not taken the long-view on this issue.

Dual-use research has been the subject of much discussion in the biosecurity community since the 2003 release of the National Research Council report, Biotechnology Research in the Age of Terrorism, which suggested that, “Adequately addressing the potential risks that research in advanced biotechnology could be misused by hostile parties will require educating the community of life scientists, both about the nature of these risks and about the responsibilities of scientists to address and manage them.” But convincing scientists that they should add dual-use research awareness and evaluations to their already long list of idiosyncratic worries turned out to be far harder than anyone imagined.

Enter the National Science Advisory Board for Biosecurity. In June of last year, the NSABB released their Proposed Framework for the Oversight of Dual Use Life Sciences Research, in which the board recommend that life scientists receive “mandatory education about dual-use research issues and policies,” with the goal of “ensure(ing) that all individuals engaged in life sciences research are aware of the concerns and issues regarding dual use research and their roles and responsibilities in the oversight of such research.”

In addition to mandatory training, both the National Research Council and the NSABB have advocated for the creation of codes of conduct for life sciences researchers that includes dual-use awareness. Now, research societies are preparing and implementing their codes of conduct, infusing another layer of awareness into the research community.

Indeed, it will not be long before it is mandatory that all federal grantees in the life sciences receive such training, and that all biologists sign codes of conduct. Awareness will spread like happy little dandelions. That is until someone points out that they are weeds.

Don’t get me wrong. I am an advocate of mandatory training and think codes of conduct are a good tool for increasing awareness. Not least of the reasons for my support being that the Federation of American Scientists arguably has the most extensive dual-use training materials available to date in the form of our multimedia Case Studies in Dual-Use Research. Wide distribution of these case studies and materials created by other groups has been a goal of ours from the time we started the project.

The problem is that we (myself included) have not taken the long-view on this issue. If we dramatically increase awareness, then we also increase the chances that scientists will have concerns about dual-use research or worse—suspicions that a colleague is up to no good. What the NSABB, National Research Council and the biosecurity community on the whole have failed to fully address is how those researchers should attend to their concerns. Government-issued guidelines for researchers will only get them so far.

Since part of the duty of a responsible researcher will certainly be reporting unsafe experiments or suspicious behavior, instituting codes of conduct and training all scientists makes potential whistleblowers out of every working biologist. This creates an immediate need for protocols and methods for scientists to get advice and report their concerns.

There is currently no reliable independent system in place for these researchers to report or receive advice on how to handle their concerns.

It is well recognized that a major barrier to reporting such incidents to law enforcement, supervisors, biosafety officers, or institutional review boards, is the fear of reprisal. This might also be compounded by some members of the scientific community not trusting government officials and law enforcement in particular. This extends from laboratory technicians and support staff to primary investigators. Even if there is no indication of foul play, scientists may feel that there are experiments being conducted at their institution that have serious dual-use implications, or that are dangerous to those conducting them and their colleagues.

There is currently no reliable independent system in place for these researchers to report or receive advice on how to handle their concerns. Such a system would be a valuable contribution to strengthening biosecurity awareness and participation within the biological research community. It should be pointed out that such a system is a good way to get across the idea that official whistle-blowing is not the first and only resort.

I and others have suggested that we need to build a secure Internet-based system where scientists will be able to report their concerns and receive advice and recommendations on the steps that they should or should not take. Concerns will naturally run the range of how to fill out dual-use reporting forms on grants to reporting potentially illegal situations in the lab. It is important that the government not operate the system to ensure buy in. Rather, an ombudsman network should be run by a non-government organization that will allow partial anonymity.

In the event that a clear cause of action is required, such as when a law is being broken, a non-government organization would be well-placed to help facilitate conversations with law enforcement, make queries on the behalf of the scientist to government, or alleviate concerns without endangering their status at the institute.

The system will have to be backed by a large group of advisors, including experts from multiple science disciplines, ethicists, legal and law enforcement representatives to ensure that users are receiving timely and accurate advice. The system administrator will have to be available at all times and have constant access to advisors in the case of a serious problem.

One major concern of scientists will be the preservation of anonymity. This issue can be simply handled by having staff farm out the query to advisors without revealing the identity of the scientist. Total anonymity, however, cannot be completely preserved in such a system.

In principle, users will turn to this system when they feel uncomfortable reporting concerns within their institution or when they are unsure of who to turn to. Responses will either ask for further information, clarification, or report back advice on the appropriate course of action.

Users must also feel comfortable that the information they divulge will not be released to anyone unless they approve it. This can be accomplished by making users agree to simple terms before sending their query. Those terms will detail operation standards and will inform users under which conditions the managers have a legal responsibility to inform appropriate authorities, and that they may be contacted by such authorities directly in the event that a law has been or is about to be broken.

Detailed records of responses and customizable electronic form letters will allow us to provide useful assistance and inform users of their rights and the laws that might apply to them in a timely manner. It should be stressed that in the event a user reports an imminent threat, they will automatically receive instructions on who they should contact. There are several important issues that will have to be addressed while developing a biosecurity reporting system, among them:

Whistleblower Laws. The United States has a well-established set of “whistleblower” laws that protect people from reprisals for reporting. There are several excellent non-profit groups that specialize in this area and it will be important to bring them in for legal advice and possibly to present a series of Frequently Asked Questions on the site for scientists to learn about their options.

Legal Advice. We will need legal advice on a broad range of issues, including the liability associated with giving advice, maintaining anonymity, the situations under which those with knowledge of possible crimes are legally obligated to contact law enforcement, and applicable laws for users.

Advisory Boards. An advisory board consisting of scientists, ethicists, biosecurity experts, and legal advisors will have to be brought in for the design and implementation. A second advisory board will have to be available for advice on individual cases. It will be important to have a wide array of expertise and knowledge on hand to address any reports that come in.

Law Enforcement Guidelines. A clear relationship with law enforcement will need to be established so that in the event that there is a user who is uncomfortable going to law enforcement themselves, we would be able to report an incident on their behalf.

Testing. It will be necessary to test the system through a series of table-top scenarios that provide challenges to our response times and content.

It is a virtual certainty that this type of system would eventually be abused maliciously against other scientists trying to slow down a competitor, or exact revenge. In that sense, the system itself would have dual-use potential and like science, safeguards and awareness will reduce, but might not eliminate, unfortunate incidences.

It is also hard to predict how often such a system would be used and what percentage of the time it would receive cranks. But it is equally unclear to what degree dual-use research is a threat to national security. If we are going to require scientists to learn about the potential for misuse, then it is essential that they have a place to turn if they recognize potential misuse or have questions about complying with legal and ethical requirements.

Michael Stebbins is the Director of Biology Policy for the Federation of American Scientists, President of the SEA Action Fund and author of Sex, Drugs and DNA: Science’s Taboos Confronted.

Reporter Bill Gertz Subpoenaed to Testify on Sources

Washington Times reporter Bill Gertz was subpoenaed by a federal court last month to testify regarding his sources for a 2006 story relating to alleged Chinese espionage.

While Mr. Gertz has been a prolific reporter of classified information for two decades and has even republished classified documents in his books, his current legal entanglement arises not from national security secrecy but from grand jury secrecy.

A court found that Mr. Gertz had disclosed secret grand jury information pertaining to the trial of Chi Mak and others who were accused and later convicted of illegal exports of defense technology to China.

“During the course of proceedings in this case, Washington Times reporter Bill Gertz authored a May 16, 2006 article that revealed secret information before a grand jury,” wrote Judge Cormac J. Carney in a May 1, 2008 Order (pdf).

Judge Carney noted that the Government had conducted a year-long investigation of the matter and interviewed “over 500 persons of interest” without being able to identify the source of the grand jury leak.

“Accordingly, the Court finds it necessary to subpoena Mr. Gertz to testify regarding the identity of the source that provided him with the grand jury information,” the Judge wrote.

In a robustly argued response (pdf) on June 5, attorneys for Mr. Gertz urged the Court to withdraw the subpoena.

Mr. Gertz’s story, they said, had not actually revealed “matters occurring before the Grand Jury.” Rather, he had reported on the intentions of prosecutors and relied on non-Grand Jury sources, including public statements by prosecutors. In support of their position, they cited a ruling in U.S.A. v. Rosen (the “AIPAC” case) in which the Court had declined to find a violation of grand jury secrecy under somewhat similar circumstances.

“There is simply no evidence contained in the record proving, or even tending to prove, that actual Grand Jury information was disclosed to Mr. Gertz.”

Along with other factual and legal arguments, Mr. Gertz’s attorneys also asserted a First Amendment privilege on his behalf. The subpoena, including the command for Mr. Gertz to testify, “is unreasonable and oppressive,” they concluded.

Mr. Gertz had been ordered to appear in court in Santa Ana, California on Friday, June 13, but that date has been postponed.

The subpoena of Mr. Gertz as well as his attorneys’ response were both first reported by Josh Gerstein in the New York Sun on May 30 and June 6.

Mr. Gertz is represented by attorneys Siobhan Cullen, Allen Farber, and Charles Leeper of Drinker, Biddle & Reath. That law firm is probably famous for other things, but it is best known to Secrecy News for representing the plaintiffs in the 1953 Reynolds case that established the state secrets privilege in the U.S. Supreme Court, and also for attempting to re-open the case fifty years later on grounds that a fraud had been committed upon the Court.