Russian Foreign Ministry Responds to FAS/NRDC Study

Deputy Minister Sergey Ryabkov says he has read the FAS/NRDC report.

By Hans M. Kristensen

Russia’s Deputy Minister of Foreign Affairs, Sergey Ryabkov, gave a lengthy reaction to the FAS/NRDC report From Counterforce to Minimal Deterrence during a press conference Wednesday.

The transcript from the press conference shows that in response to a question that the “report [is] suggesting a possible retargeting of US missile from Russian cities to key economic facilities,” Ryabkov correctly stated: “I have read the report and think that in the Russian media the thesis mentioned by you was taken our of context. That is not the essence of the report.” Continue reading

Secrecy vs. Scientific Integrity

Following an August 28, 2008 explosion at the Bayer CropScience facility in Institute, West Virginia, Bayer used official secrecy restrictions to limit public awareness of the accident and to impede investigators from the U.S. Chemical Safety Board, a congressional review found.

“Bayer engaged in a campaign of secrecy by withholding critical information from local, county, and state emergency responders; by restricting the use of information provided to federal investigators; by undermining news outlets and citizen groups concerned about the dangers posed by Bayer’s activities; and by providing inaccurate and misleading information to the public,” according to an April 21, 2009 staff report (pdf) from the House Energy and Commerce Committee.

In testimony before Rep. Bart Stupak’s Oversight Subcommittee this week, Bayer CropScience President William B. Buckner admitted that Bayer’s secrecy practices were driven not only by “legitimate security concerns” but also by “a desire to limit negative publicity generally about the company or the Institute facility.”  “We concede that our pursuit of [secrecy protection] was motivated, in part, by a desire to prevent that public debate from occurring in the first place,” Mr. Buckner said (pdf).

While Mr. Buckner’s candor is unusual, his company’s instinctive reliance on secrecy to help shape public perception is not.  Such politically motivated secrecy is a predictable and normal response to unwanted scrutiny.  Policymakers and others who aspire to an optimal degree of transparency in government must anticipate such responses and deploy countermeasures against them.

A new opportunity to help develop such countermeasures arises in a White House policy on scientific integrity that is now under development, and which would require public disclosure of most policy-relevant scientific and technological information:

“Except for information that is properly restricted from disclosure under procedures established in accordance with statute, regulation, Executive Order, or Presidential Memorandum, each agency should make available to the public the scientific or technological findings or conclusions considered or relied on in policy decisions,” according to a March 9, 2009 statement from President Obama.

But how can the new policy ensure that only information which is “properly restricted” by statute or regulation will be withheld from disclosure?  What tools can be put in place against the inevitable political abuse of secrecy authority?  How can the new policy overcome the ordinary “desire to limit negative publicity”?

There are several mutually reinforcing ways to answer such a question. Briefly, a thorough reconsideration of the criteria for restricting information is needed, along with a reexamination of how such criteria are exercised in practice.  New oversight mechanisms and disclosure authorities are needed to promote compliance.  New appeal procedures would help to adjudicate difficult or contested cases.

“We fully acknowledge the need for further guidance on what materials should and should not be marked as SSI [sensitive security information],” Mr. Buckner told Congress this week.  In fact, further guidance and improved clarity are needed all around.

In a Federal Register notice today, the Office of Science and Technology Policy (OSTP) solicited public comment on the implementation of President Obama’s memorandum on scientific integrity.  “Comments from the public will help the OSTP determine what should be included in these recommendations. Respondents are invited to suggest: (1) Recommendations that would be responsive to the aims of the President, (2) specific implementing strategies, and (3) data and empirical evidence related to the effectiveness of strategies to promote scientific integrity,” the April 23 Federal Register notice said.  Public comments are due by May 13.

More Declassified Documents on Torture

The Senate Intelligence Committee released a newly declassified account of the opinions issued by the Justice Department Office of Legal Counsel concerning CIA’s interrogation and detention program during the Bush Administration.  The document is neutral, dispassionate, and maybe a little dull, particularly when compared with the gruesomely detailed contents of some of the OLC opinions themselves, on which it does not render any moral or legal judgment.  Remarkably, release of this Senate report was blocked last year when the Bush Administration National Security Council refused to declassify it.  But now it, and much more, has been released.  See “Declassified Narrative Describing the Department of Justice Office of Legal Counsel’s Opinions on the CIA’s Detention and Interrogation Program” (pdf), released April 22, 2009.

Another newly declassified report, from the Senate Armed Services Committee, does not shrink from drawing conclusions.  “The report represents a condemnation of both the Bush administration’s interrogation policies and of senior administration officials who attempted to shift the blame for abuse–such as that seen at Abu Ghraib, Guantanamo Bay, and Afghanistan–to low ranking soldiers. Claims, such as that made by former Deputy Secretary of Defense Paul Wolfowitz that detainee abuses could be chalked up to the unauthorized acts of a ‘few bad apples,’ were simply false,” said Sen. Carl Levin in an April 21 floor statement introducing the report (large pdf).

Does torture work?  Preempting and perhaps foreclosing an argument advanced by former Vice President Cheney and others, DNI Dennis C. Blair said in an April 21 statement that “The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us and they are not essential to our national security,” he said.

Harman, AIPAC, and Leaks

Updated below

By all authoritative accounts, Rep. Jane Harman (D-CA) did not interfere in the investigation of two former pro-Israel lobbyists who were suspected of unlawfully receiving and transmitting classified information.  She did not seek to win favorable treatment for them from the Justice Department.  They did not receive any such treatment.  And she did not become chair of the House Intelligence Committee.

Nevertheless, she stands accused of saying that she would get involved in the case of the pro-Israel lobbyists in exchange for outside efforts to promote her candidacy to be chair of the House Intelligence Committee.

In a widely cited story in CQ Homeland Security, Jeff Stein reported that several former government officials had told him that Rep. Harman had been captured on a National Security Agency wiretap speaking with an unidentified “suspected Israeli agent” agreeing to “waddle into” the controversial case of the two former AIPAC officials, who were charged under the Espionage Act with mishandling classified information, and to try to get the charges against them reduced.  “In exchange for Harman’s help,” Stein wrote, the suspected Israeli agent pledged to help lobby for Harman’s appointment as intelligence committee chair.

Rep. Harman denied any misconduct.  “These claims are an outrageous and recycled canard, and have no basis in fact,” Harman said in a statement to CQ. “I never engaged in any such activity. Those who are peddling these false accusations should be ashamed of themselves.”

In a follow-up story by Neil A. Lewis and Mark Mazzetti, the New York Times confirmed the existence of an NSA recording, but also added several important points.

David Szady, the former FBI counterintelligence official who zealously led the investigation of the two AIPAC suspects told the Times that Rep. Harman never interfered in his pursuit.  “In all my dealings with her, she was always professional and never tried to intervene or get in the way of any investigation,” Mr. Szady said.

(The trial of the AIPAC defendants, Steven Rosen and Keith Weissman, who are charged with multiple counts of violating the Espionage Act, is scheduled to begin on June 2.)

The Times did not independently confirm the CQ claim that former Attorney General Alberto Gonzales had quashed an investigation into Rep. Harman’s statements purportedly because he wanted her support of the Bush Administration’s warrantless surveillance program. [Update, 4/24/09: In a follow-up story published April 23, the Times did independently confirm that Gonzales intervened in the case.]

The Times reported that an official familiar with the NSA transcript said that Rep. Harman “appeared to agree” to intervene in the AIPAC case in exchange for support of her chairmanship of the House Intelligence Committee.

But by introducing some equivocation about her “apparent” agreement, the Times implied that the transcript is susceptible to other interpretations.  It also highlighted the least credible aspect of the story — the alleged quid pro quo between Harman and the “suspected Israeli agent.”

What makes the quid pro quo allegation questionable is that neither side of the reported conversation seemed to need an inducement to act as described.  Of all potential candidates for chair of the House Intelligence Committee (Harman, Hastings, Reyes), Harman’s views have probably been closest to those of pro-Israel lobbyists.  Their support of her was not in doubt.  Nor did Rep. Harman require extraordinary incentives to be concerned about the prosecution of the former AIPAC officials.  That case has drawn widespread criticism (including from Secrecy News) for its over-broad reading of the Espionage Act that would make even the receipt of classified information a crime.

Ironically, the single identifiable crime in this whole story is the unauthorized disclosure of the classified contents of an intelligence intercept to CQ, and then to the New York Times.  While there is no categorical legal prohibition against all classified leaks, several specific categories of classified information are protected by statute and their release is a felony offense.  Under 18 U.S.C. 798, one of those is the unauthorized disclosure of communications intelligence, like that gathered by NSA.

Jeff Stein provides a second-day review and update of the story here.

Update: In an April 21 letter to the Attorney General (pdf), Rep. Harman demanded the release of “all transcripts and other investigative material involving me in an unredacted form. It is my intention to make this material available to the public.”

“Let me be absolutely clear: I never contacted the Department of Justice, the White House or anyone else to seek favorable treatment regarding national security cases on which I was briefed, or any other cases,” she wrote.

Kuklinski, OTA, and Freeman

“The value and the major limitations” of a recently released CIA documentary collection on Col. Ryszard Kuklinkski, the Polish official who provided a vast quantity of political and military intelligence to the CIA in the 1970s and early 1980s, are assessed by Mark Kramer of Harvard University in a new publication of the Cold War International History Project.  See “The Kuklinski Files and the Polish Crisis of 1980-1981” (pdf), March 2009.

The Office of Technology Assessment played a significant role in informing Congressional deliberations on science policy over the course of two decades and generated a body of policy analysis that retains much of its value years after OTA was terminated in 1995.  Today, “the argument to restart the OTA is overwhelming,” argued Gerald Epstein in an essay in Science Progress.

Had Amb. Charles Freeman not withdrawn from his appointment as chairman of the National Intelligence Council, under pressure of controversy regarding his views on Israel, Saudi Arabia and China, he would have attempted to alter the Intelligence Community’s classification practices, he said in an interview with Jim Lobe of Interpress Service news agency.  “I would have liked to have tried to change the culture to value lower levels of classification rather than higher in terms of output,” Amb. Freedman said.  “In general, I would’ve tried very hard to encourage members of the intelligence community to use classified information as a form of corroboration for information that is not classified, or is not terribly sensitive even if it is classified. In other words, I would urge analysts to write down rather than write up terms of levels of classification.”

Houston House Photo Updates

Construction continues on FAS’s demonstration house in Houston, Texas. Trusses have been put up, and the envelope is almost finished. We’ve gotten more pictures as well, and we’re posting them on FAS’s flickr account, which can be found here.

Standard Formats for Utility Bills: Why it Matters

When it comes to solving the nation’s energy crisis utility bills hardly seem like much of a big deal.  But improving access to the information in the billing records of the nation’s gas and electric utilities could provide powerful tools to increase the efficiency of energy use in the US.  This is particularly true in residential and commercial buildings that consume 70% of US electricity and are responsible for 40% of all US greenhouse gas emissions.

Unfortunately, utility bill information is stored in a huge number of idiosyncratic formats and is not accessible to individuals and organizations that could use it.  This complex, un-standardized landscape means that anyone interested in comparing their energy use with national averages, or understanding how their building is performing in terms of energy consumption, has to do an enormous amount of work sorting through confusing bill information.  The small investment it would take to get these billing records into standardized formats, and making them easily available to anyone with permission to use them, would pay large dividends, for example by helping individual consumers make better decisions when they are purchasing and operating buildings, and by helping officials managing public programs designed to encourage building energy efficiency make better management decisions.

In the future, detailed information about patterns of consumption may make sense when there’s widespread use of “smart meters” that keep track of energy use minute by minute, and possibly appliance by appliance.  But major gains are possible simply by reporting energy use for each month.  Here are some examples:

  • Legislation could require that billing records and benchmarking data be disclosed to potential buyers at time of sale.  Labels providing data on a building’s energy use have been developed in Europe and are being considered in California and other parts of the US.  Most labels being considered include both calculated energy demand (called “asset rating”) and measured energy consumption (called an “operational rating”).   The US Environmental Protection Agency has developed a tool called a portfolio manager that lets building owners compare the energy performance of their buildings with the performance of similar buildings in similar climates.  At present nothing similar is available for residential buildings. The burden on the user would be greatly reduced if billing data can be uploaded automatically, using standardized formats.
  • If billing records for a building are available online with suitable permissions, a utility, or a third party like Google could provide a service where a consumer could go on line, identify themselves with an appropriate password, and get access to the building’s history of energy use by month – preferably several years of data.  This could then be automatically compared with energy use from similar structures in similar climates, and estimates of the reductions likely to result from cost-effective retrofits.  Consumers might well be motivated to take action.  Benchmarking tools for this purpose have already been developed by the Environmental Protection Agency.
  • Good building energy audits involve entering data about a structure into a computer model that estimates a building’s energy use and also computes the savings that would result from different retrofit measures that could be taken (adding insulation, replacing windows, etc.)   Unfortunately these models are often wrong since the outcome depends on the skill and experience of the person using them.  Accuracy can be improved if the models include an analysis of the actual energy consumption of the structure.  Monthly consumption data, made available to building auditors by permission of the building owner, can be used to track the sources of inaccuracy in the data input and, and algorithms could be developed over time that would suggest corrections to the user.   Improved models will lead directly to retrofits that show better performance and are more cost-effective.   The cost of doing this would be greatly reduced if auditors could access consumption data directly over the internet using appropriate network security tools.  In the future most auditors are likely to be using wireless, handheld units at the building site to collect data and perform the energy use estimates.  These could also have direct access to the data.  The software for these tools would need to be adjusted for each utility if each company keeps data in a different format – at a significant increase in cost.
  • Utility data available online could also be used to strengthen project management for retrofit programs.  The performance of individual auditing and contractor teams could be continuously measured and compared based on the actual impact their work had on energy use in the buildings they serviced.   The persistence of savings could be measured over a period of years and the actual performance of different approaches to retrofits compared in ways that could lead to continuous improvement of the programs.  This, of course, would require collecting and maintaining data on the kinds of measures undertaken and  the cost of the installations in a standardized format.
  • Energy use data collected in a consistent form would also permit continuous analysis of progress, or lack of progress, of city, state, and national programs to improve energy efficiency.  It could be used, for example, to compare programs in different cities, and track the impact of different policy interventions in considerable detail.  While care would need to be taken to ensure that identifiable personal information is not released, statistical agencies have considerable experience in analyzing data scheduled for publication to ensure that this doesn’t happen – and they have a good track record of success.  The novelty in this new system, of course, would be that the data would be gathered online.  Careful design of network security would needed.
  • The introduction of “smart grid” technology will open more opportunities for collecting detailed information about building performance.  The new systems will let building owners and utilities adjust consumption to avoid system peaks and provide information useful for understanding the consumption of specific equipment in the buildings that can, among other things, be used to understand the impact of any retrofit measures undertaken in the building — with statistically significant samples.   The smart grid will require standardized approaches to measuring and reporting consumption data.

Taken together, the benefits of a consistent national format for the energy consumption of individual utility customers would be considerable.  The benefits would include much improved management and accountability for retrofit program funds, and more energy savings per dollar invested.  While some utilities may complain about the cost of converting existing data formats to a new format, the overall costs would be small compared with the savings that could be achieved.

OLC Torture Memos Declassified

The disclosure of four Bush-era Office of Legal Counsel opinions on interrogation and torture is likely to have significant political and perhaps legal consequences.  But their release is also a landmark in national security classification policy.

These OLC memos, released by the Justice Department yesterday, were among the most urgently sought and the most fiercely protected classified records of recent years.  They addressed fundamental questions of national policy and yet they were off limits to public review and discussion by virtue of their classification status.

“The interrogation techniques described in these memos have already been widely reported,” President Obama said in a statement explaining his decision to declassify the memos.  “Withholding these memos would only serve to deny facts that have been in the public domain for some time.”

But remarkably, this sensible view — that information which has reached the public domain should not remain classified — does not characterize or dictate classification policy.

“Classified information shall not be declassified automatically as a result of any unauthorized disclosure of identical or similar information,” according to Executive Order 12958, as amended.

Nor can judicial review reliably compel disclosure of such information.  In order to win declassification and disclosure of previously released information, a FOIA plaintiff must show that each of the following conditions is met: 1) the information previously released is as specific as the information that is being requested; 2) the information requested matches the information previously released; and 3) the information requested has been made public through an official and documented disclosure (Fitzgibbon v. CIA, D.C. Circuit, 1990).

The new release does not alter this non-disclosure policy, which lends credence to the statement of former CIA director Michael Hayden that the government could have successfully argued against disclosure of the OLC memos in court, as he favored.

But the four newly declassified memos are now themselves “an official and documented disclosure.”  This means that not only have their combined 124 pages been published (with limited redactions) but also that an obstacle to the release of a related body of legal and intelligence information has now been removed.  Such material can no longer legitimately remain classified.  Furthermore, the new release will also enable participants and other officials to speak publicly about the issues involved.

The memos are shocking in their calculated brutality and in their likely violation of categorical legal prohibitions against torture.  They are, as President Obama stated, evidence of a “dark and painful chapter in our history” involving practices that should “never take place again.”  But they also provide abundant food for thought as well as new insight into their authors’ thinking, and their predicament.

The authorization for coercive interrogation of al Qaeda operative Abu Zubaydah was predicated on the “certain” belief that “he is withholding information regarding terrorist networks in the United States… and information regarding plans to conduct attacks within the United States” and that “he refuses to divulge” the information.  Furthermore, there was an estimated threat level “equal to that which preceded the September 11 attacks.”  “This opinion is limited to these facts.  If these facts were to change, this advice would not necessarily apply.”  (“Interrogation of al Qaeda Operative” [pdf], August 1, 2002, at page 1).

In other words, it appears that the OLC authors proceeded not out of sadism or indifference, but out of desperation.

They recognized that under other circumstances (such as law enforcement), the coercive practices that they were authorizing could be thought to “shock the conscience.”  But they concluded that coercive interrogation by the CIA did not violate that standard since it was only being used where the detainee had “knowledge of imminent terrorist threats against the USA” and that it had already proved effective in producing “critical, actionable intelligence.” (“Application of U.S. Obligations Under Article 16” [pdf], May 30, 2005, at pp. 3, 29ff).

The development of the OLC memos suggests that if torture is to be permanently abolished, alternatives to coercive interrogation that are at least as effective need to be identified, or else the occasional prospect of an “imminent terrorist threat” threatening thousands of lives must be accepted in principle as preferable to the extreme violations of human dignity authorized by OLC.

A couple of other points.  Both President Obama and Attorney General Holder noted that the OLC memos were released as a consequence of  ongoing litigation.  In other words, their release is thanks to the Freedom of Information Act lawsuit filed by the ACLU and its co-plaintiffs, and the resonance that the lawsuit found in the press, the blogosphere and the public.  Congressional oversight did not get the job done (despite a Senate Judiciary Committee subpoena for these records).  This reflects a significant and dangerous weakness on the part of Congress.

Yesterday, former CIA Director Michael Hayden told MSNBC that the CIA interrogation program “began life as a covert action.”  If that is true, it means that there should be a Presidential “finding” authorizing the program, and that such a finding should have been provided to Congressional overseers.  As a covert action, the program may also have entailed active deception.  It’s one more loose end that remains to be tied.

Michael Hayden and former Attorney General Michael Mukasey criticized the release of the OLC memos in “The President Ties His Own Hands on Terror,” Wall Street Journal, April 17.

The ACLU called for appointment of an independent prosecutor to investigate torture under the Bush Administration, in an April 16 release.

The Ron Ridenhour Prizes

Former Justice Department attorney Thomas Tamm, who was one of the early sources for the December 2005 New York Times story on warrantless government surveillance and who is under threat of prosecution for having revealed classified information without authorization, yesterday received the Ridenhour Prize for Truth-Telling.

The Ridenhour Prizes, named for the late Ron Ridenhour who exposed the 1968 My Lai massacre, are intended to “foster the spirit of courage and truth,” particularly when doing so involves defiance of official authority at some personal cost.

Other Ridenhour Prizes, presented at a ceremony yesterday, were given to New Yorker writer Jane Mayer, New York Times columnist Bob Herbert, and reporter Nick Turse.

National Intelligence Council, and More from CRS

Noteworthy new reports from the Congressional Research Service, obtained by Secrecy News, include the following (all pdf).

“The National Intelligence Council: Issues and Options for Congress,” April 10, 2009.

“Pakistan’s Capital Crisis: Implications for U.S. Policy,” updated March 6, 2009.

“Direct Overt U.S. Aid and Military Reimbursements to Pakistan, FY2002-FY2009,” updated April 15, 2009.

“China-U.S. Relations: Current Issues and Implications for U.S. Policy,” April 2, 2009.