A Seat at the Obama Transition Table

The Obama transition team announced last week that it would provide unrestricted online access to information and documents submitted by outside groups and individuals.

“Every day, we meet with organizations who present ideas for the Transition and the Administration, both orally and in writing,” wrote transition co-chair John Podesta in a December 5 memo (pdf). “We want to ensure that we give the American people a ‘seat at the table’ and that we receive the benefit of their feedback.”

One might think that the disclosure of advice and recommendations contributed by outside parties is a small, easy step to take.  But remarkably, such outside advice has often been kept secret.  Most famously, Vice President Cheney fought to preserve the secrecy of his 2001 Energy Task Force.

Even non-zealots like the members of the CIA Historical Review Panel (HRP) have surrendered to secrecy.  “Because the HRP’s advice to the DCIA must be completely frank and candid, we are not reporting Panel recommendations,” wrote panel chair Prof. Robert Jervis of Columbia University in the Panel’s latest statement, implying strangely that his panel is unable to express its views on CIA classification policy candidly in public.  There is no indication so far that would-be Obama advisors feel any similar constraint.

The broader significance of the new Obama transition team policy was assessed by John Wonderlich of the Sunlight Foundation in “Obama and Affirmative Disclosure.”

Humanitarian Aid and Medical Diplomacy

The Department of Defense has updated its policy on “humanitarian and civic assistance activities,” which are “conducted in conjunction with authorized military operations” abroad.  See DoD Instruction 2205.02 (pdf), December 2, 2008.

Medical assistance is a potentially important element of counterinsurgency operations in Afghanistan, argued a senior military medical officer earlier this year.  See “The Role of Medical Diplomacy in Stabilizing Afghanistan” (pdf), by Donald F. Thompson, Defense Horizons, May 2008.  (Interestingly, however, he noted that such assistance can sometimes backfire by “undercutting the confidence of the local population in their own government’s ability to provide essential services.”)

Former Senator Bill Frist has called for increased investment in medical diplomacy, and warned against letting U.S. adversaries get “ahead” on this front.

“We cannot allow countries in direct security and economic competition with America … to use health diplomacy as a means of building new alliances, attracting new followers, or otherwise strengthening their position vis-a-vis our nation,” he wrote (pdf) in Yale Law and Policy Review (Fall 2007).

Missile Watch #3: Black Market Missiles Still Common in Iraq

Despite a million dollar buyback program and hundreds of raids on illicit weapons caches, US and Iraqi forces are still finding surface-to-air missiles in insurgent stockpiles.  US military press releases and media reports reveal that, since October 2006, at least 121 such missiles have been recovered, along with 4 additional launchers and various components.  These reports suggest that insurgents still have ready access to surface-to-air missiles, including MANPADS, at least some of which are reportedly still operational.  The missiles pose an immediate threat to civilian and military aircraft in Iraq and a potential threat to aircraft in the region.

To read the rest of Missile Watch #3, click here.

India’s Nuclear Forces 2008

Mystery missile: widely reported as a future sea-launched ballistic missile, is the Shourya launch in November 2008 (right) a land-based mobile missile (left), a silo-based missile, or a hybrid?      Images: DRDO

By Hans M. Kristensen

A decade after India officially crossed the nuclear threshold and announced its intention to develop a Triad of nuclear forces based on land-, air-, and sea-based weapon systems, its operational force primarily consists of gravity bombs delivered by fighter jets. Short of the short-range Prithvi, longer-range Agni ballistic missiles have been hampered by technical problems limiting their full operational status [Update Feb. 2, 2009: “Defense sources” quoted by Times of India appear to confirm that the Agni missiles are not yet fully operational]. A true sea-based deterrent capability is still many years away.

Despite these constraints, indications are that India’s nuclear capabilities may evolve significantly in the next decade as Agni II and Agni III become operational, the long-delayed ATV nuclear-powered ballistic missile submarine is delivered, and warhead production continues for these and other new systems.

Our latest estimate of India’s nuclear forces is available from the Bulletin of the Atomic Scientists.

New Light on the Office of Legal Counsel

In 2004, Congress enacted an ambiguously-worded statute that made it a crime to produce, possess, or use the variola virus (which causes smallpox) or any derivative of it that has more than 85 percent of the variola gene sequence.

Scientists were alarmed because the statute could be read to prohibit possession of other viruses that are used in research, and to compromise the development of vaccines.  The National Science Advisory Board for Biosecurity, which advises the Secretary of Health and Human Services, recommended that the statute be repealed.

But it wasn’t repealed.  Instead, it was “interpreted” by the Justice Department Office of Legal Counsel (OLC) to eliminate the problem.  The OLC opinion (pdf), published by the Justice Department this week, said that the prohibition extends only to viruses that cause smallpox and those that are deliberately engineered by human manipulation of the smallpox virus itself.  The vaccine developers and other scientific researchers were off the hook.

No sensible person would be likely to object to the conclusion reached by OLC.  What seems problematic, however, is the interpretive process and the quasi-legislative authority that OLC now has to define and redefine the terms of existing laws.  In this case, OLC interpretation was the functional equivalent of statutory amendment or repeal.  And though unclassified, the July 2008 OLC ruling remained unpublished for several months.  One can only imagine what OLC may be doing in classified areas.

Steven G. Bradbury, the head of the Office of Legal Counsel, recently responded to numerous questions (and deflected others) regarding the conduct of his office posed by members of the House Judiciary Committee following a February 14, 2008 hearing.

Substantive replies were given (pdf) to questions such as these:  If an OLC opinion is incorrect, would it still confer immunity on a person who relied on it?  (Basically, yes.) How does the Department decide which OLC memoranda and opinions are to be classified and which are to be released to the public?  (OLC does not have original classification authority, and proceeds on a case by case basis.)  Can the President change his interpretation of an Executive Order without formally amending the order or issuing a new one?  (Yes, he said.)

Other questions, such as why Deputy Attorney General James Comey said that officials would be “ashamed” when the public learned of certain OLC legal interpretations, were not directly answered.

And still others, such as the limits of Presidential authority, cannot be definitely answered at all, Mr. Bradbury said.  “The President’s independent constitutional powers, including his powers as Commander in Chief, have never been fully defined, and cannot be, because their contours necessarily depend on the concrete exigencies of particular events.”

Mr. Bradbury’s answers to questions for the record were transmitted on August 18, 2008, and published in the PDF version of “Justice Department’s Office of Legal Counsel,” hearing before the House Judiciary Committee, February 14, 2008.

Index on Censorship, and Secrecy in Congress

Index on Censorship, the British magazine on freedom of expression, devotes its latest issue to secrecy, surveillance and executive authority in the United States at the end of the Bush Administration.  It features articles by Jameel Jaffer, Geoffrey R. Stone, Eric Lichtblau, Patrick Radden Keefe, and myself, among others.  Many of the articles can be viewed online.

“For all its apparent openness, its televised debates and public hearings, Congress is more secretive than its reputation suggests,” writes Tim Starks in a Congressional Quarterly Weekly cover story.  “Critics of congressional secrecy argue that the practice is not only undemocratic, it is particularly hypocritical, and it undercuts the public’s confidence in government.”  See “A Dome Under Lock and Key” by Tim Starks, CQ, November 30.

Congressional Resources on Arms Control

Noteworthy new Congressional publications on arms control-related topics include the following.

“North Korea and Its Nuclear Program — A Reality Check” (pdf), Report to the Senate Committee on Foreign Relations, October 2008.

“International Convention for Suppression of Nuclear Terrorism,” Report of the Senate Committee on Foreign Relations, September 11, 2008.

“Technologies to Combat Weapons of Mass Destruction,” hearing before the Senate Armed Services Committee, March 12, 2008.

Iran’s “Hoot” Torpedo Documented

In April 2006, Iran successfully test-fired a new high-speed torpedo called Hoot.  It was test-fired again last July, along with various other missiles.

“The torpedo is capable of destroying the largest warships and any other vessel on the surface or beneath the water, and split it into two parts,” according to an Iranian Naval Forces official.

Technical specifications (pdf) for components of the Hoot torpedo are presented in an Iranian document (in Farsi) that was provided to Secrecy News.  The document appears to have been produced by a subunit of Iran’s Aerospace Industries Organization, according to a colleague who reviewed it.

“Only Iran and another country possess the technology to build this [torpedo],” the Iranian press reported after last July’s test, apparently referring to Russia and its Shkval torpedo.  On  4 April 2006, Izvestiya Moscow said that the Hoot resembles the Shkval technically and in appearance, and that Shkval torpedoes may have found their way to Iran via China, where they were delivered in the mid-1990s.  But Iranian officials insist the Hoot is a completely original production.

“From a tactical point of view,” said Rear Admiral Morteza Safari of the Islamic Revolutionary Guards Corps naval forces, “what is of critical importance is that we are everywhere, while we are nowhere!”  (Fars News Agency, July 10, 2008, via OSC).

“Let me briefly say that the intelligence that the Americans have about us is very different from the intelligence that they do not have about us,” he went on.  “What I mean is that they have only little information, and there is a lot of intelligence that they are not aware of.”

Security Clearance Process Remains “Cumbersome”

Despite compulsory legislative reforms and multiple executive orders intended to streamline the granting of security clearances for access to classified information, the process remains “cumbersome,” according to a new House Intelligence Committee report.

While backlogs and processing time have been reduced since enactment of the 2004 Intelligence Reform Act, overall “progress over the past five years has been disappointing,” the report said.

Among other things, the executive branch has failed to establish an integrated database of all security clearance authorizations.  As a consequence, “no one knows how many people in the U.S. Government hold security clearances.”  (It is more than 2.5 million and probably around 3 million people in government, military and industry.)

Government agencies have also failed to fulfill a requirement for security clearance “reciprocity,” referring to the acceptance by one agency of a security clearance granted by another agency.  This is in spite of an explicit statutory requirement that “all security clearance background investigations and determinations… shall be accepted by all agencies.”

The House Committee found that “In practice, security clearance adjudications are not fully accepted reciprocally across the U.S. Government, and anecdotal information shows that even among the elements of the Intelligence Community there are impediments and sometimes lengthy delays in granting clearances to employees detailed from one agency to another.”

See “Security Clearance Reform — Upgrading the Gateway to the National Security Community,” House Permanent Select Committee on Intelligence, House Report 110-916, November 20, 2008.

One U.S. intelligence community employee told Secrecy News that reciprocity had improved in recent years thanks to new databases and other tools that make it possible to rapidly confirm an individual’s clearance status.  But the employee said that full clearance of employees who are detailed from another agency often lags while the employee’s hardcopy adjudicative file is physically transferred to his or her new place of employment.

More fundamentally, the statutory requirement for reciprocity “contains some ambiguity,” the Committee report acknowledged, and could be interpreted in one of at least three different ways. The report said the Committee would seek to clarify the matter in the 111th Congress.

The November 20 Committee report mistakenly said that the new Intelligence Community Directive 704 on security clearance standards “has still not been issued.”  ICD 704 (pdf) went into effect on October 1, 2008.

The report also said that intelligence community personnel “hold approximately 10 percent of the total number of security clearances.”  But this would imply that there are approximately 300,000 cleared intelligence community employees, roughly twice the usual estimate.

Russian Intel Reporter Soldatov Profiled by Open Source Center

Andrei Soldatov, the Russian journalist who runs the independent web site Agentura.ru that reports on Russian intelligence and security services, was the subject of a profile last week prepared by the DNI Open Source Center.

“Soldatov has regularly highlighted the increasing influence of the special services in Russian government, reported on the security services’ efforts to limit journalistic freedoms, followed spy cases, interviewed defectors, and chronicled personnel appointments and reorganizations of the special services,” the OSC profile stated.

“Despite being questioned and charged by the FSB [Russian Federal Security Service] on several occasions, Soldatov has continued to cover hot-button issues such as corruption, security service defectors, and the increasing role of the special services in limiting free speech in Russia.”

See “Profile of Prominent Russian Security Services Commentator Andrey Soldatov,” Open Source Center Media Aid, November 25, 2008.

The OSC write-up presents numerous interesting details about Soldatov’s career, many of which are rather obscure and bound to be unfamiliar to anyone who does not follow the Russian press closely.  But since the open source information it relies upon is “collected” rather than “reported” — where reporting means confirmation of facts and hypotheses, reconciliation of conflicting accounts, and discovery of previously undisclosed information — it also contains some significant omissions.

The OSC speculates that “Perhaps Soldatov has enjoyed protection because of his father’s position and ties to the security services.”  But Relcom, the Internet Service Provider of which the senior Soldatov was then president, decisively terminated its support of the Agentura.ru web site in 2006.

The OSC writes that “To those following the increasingly hostile environment for journalists in Russia, Soldatov’s career is a curiosity. In an era where journalists are regularly threatened or even killed for their reporting, Soldatov has [suffered] relatively few consequences.”  But on November 12, Soldatov’s employer Novaya Gazeta fired him and Agentura.ru colleague Irina Borogan “without explanation” (noted by Maria Eismont in Index on Censorship on November 27).  The “curiosity” of Soldatov’s career is thus diminishing and the Agentura.ru project may be in jeopardy.

In happier times, Soldatov was featured in “A Web Site That Came in From the Cold to Unveil Russian Secrets” by Sally McGrane, New York Times, December 14, 2000.