Capitol Briefing on Biological Weapon Threats

A March 19th briefing at the US Capitol brought together a panel of experts to discuss the threat of biological weapons.  The briefing, titled “Deterring Biological Threats”, was hosted by the Center for a New American Security (CNAS) and focused heavily on the historical records of the destructive potential of the Cold War bioweapons programs in the US and the USSR.  With more modern threats, such as Al Qaeda’s well-documented search for Anthrax, the amount of interest in biological attacks appears to be increasing.  The means of actually deterring and preventing these biological threats remain less clear. Continue reading

Judge: If You Leak Classified Info, Take the Consequences

Leaking classified information to an unauthorized person may be the right thing to do in certain circumstances, suggested Judge T.S. Ellis, III of the Eastern District of Virginia in a newly released hearing transcript from last year.  In particular, he said, leaking may be an acceptable move if the leaker accepts full responsibility for his actions.

Ordinarily, disclosing classified information to an unauthorized person is deemed unethical, if one has signed a non-disclosure agreement not to do so.  It may also be illegal, if the classified information falls within certain categories whose unauthorized disclosure is proscribed by law (including communications intelligence-related information, identities of covert agents, nuclear weapons design information, and “national defense information”).

“Whistleblowing” in itself is not an adequate rationale for leaking classified information, Judge Ellis said.  “Simply because you believe that something that’s going on that’s classified should be revealed to the press and to the public, so that the public can know that its government is doing something you think is wrong, that doesn’t justify [publicly disclosing] it…. Noble motives don’t erase the violation.”

However, he said, “you may want to go ahead and do it [anyway], but you have to stand up and take the consequences.”

“I don’t have a problem with people doing that if they are held accountable for it,” Judge Ellis said.  “One might hope that, for example, someone might have the courage to do something that would break the law if it meant they’re the savior of the country.  But then one has to take the consequences, because the rule of law is so important.”

“Disclosing it was okay if the person is willing to stand up and say, ‘I did it. Give me the consequences’.”

Judge Ellis spoke at a June 11, 2009 hearing on the reduction of the sentence for Lawrence A. Franklin, who was convicted of disclosing classified information to two officials of the American Israel Public Affairs Committee, Steven Rosen and Keith Weissman, who were themselves charged with unauthorized receipt and disclosure of classified information. The controversial case against them was abandoned by the government last year.  Based on his cooperation with prosecutors, Mr. Franklin sought and received a reduction in his own 12-year prison sentence to probation and ten months in “community confinement.”

In addition, Mr. Franklin was ordered to spend 100 hours “giving talks to young people” about the need to protect classified information.  “What I want you to speak to these young people about, Mr. Franklin, is the rule of law and the obligation that public officials have and the importance of classified information,” Judge Ellis explained.  “Secrets are important to a nation.  If we couldn’t keep our secrets, we would be at greater risk…. And I am going to ask that a probation officer send me copies of your lectures on this subject.”

Mr. Franklin is the second person convicted of unauthorized disclosure of classified information in a non-espionage case.  The first was Samuel L. Morison, who was convicted of providing classified intelligence photographs to Jane’s Defence Weekly in 1985.  The third conviction, still pending, is that of Shamai Leibowitz, a former FBI translator who pled guilty last December to the unauthorized disclosure of five classified documents to a blogger.  Prosecutors specifically acknowledged Mr. Leibowitz’s “affirmative acceptance of personal responsibility for his criminal conduct.”

The transcript of Mr. Franklin’s June 2009 sentence hearing was finally prepared last week.  A copy was obtained by Secrecy News and posted on the website of the Federation of American Scientists.

The First Amendment and “Newsgathering Crimes”

It might be pleasant for writers and publishers to suppose that First Amendment principles of freedom of speech and freedom of the press are absolute and will prevail in every circumstance.  But that is clearly not the case.

For one thing, the Supreme Court has specifically excluded obscenity, child pornography, and certain other forms of communication from First Amendment protections.  (See “Freedom of Speech and Press: Exceptions to the First Amendment” (pdf), Congressional Research Service, updated October 16, 2009.)  Moreover, courts have repeatedly upheld the constitutionality of prohibitions in the Espionage Act against the unauthorized disclosure of certain types of classified information (most recently in a 2006 ruling [pdf] in the AIPAC case, USA v. Rosen and Weissman).

The intersection of national security law and ordinary newsgathering remains a bit murky, and is contested in some quarters even where it is fairly clear.  Although “the right of the press to publish confidential information is well established, [t]here is… a paucity of constitutional doctrine protecting newsgathering activities that seek the leaking of confidential information,” according to a recent law review article.

“Ethics codes for news organizations state that reporters must not commit crimes such as trespassing or stealing information but are silent on inchoate crimes such as solicitation,” wrote Prof. William E. Lee of the University of Georgia last year.  “And while news organizations have elaborate rules about relations with confidential sources, they do not address the propriety of promising confidentiality as an inducement to the disclosure of classified information.”

“Although there are practical and political difficulties in prosecuting reporters for solicitation or conspiracy, there is little First Amendment precedent in support of the argument that reporters should be exempt from generally applicable criminal laws.”   See “Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes” by William E. Lee, American Journal of Criminal Law, vol. 36, no. 2, Spring 2009.

The longstanding conflict over press publication of national security information is revisited in the forthcoming book “Necessary Secrets” by Gabriel Schoenfeld (Norton Books, May 2010).

Book: The Iraq Papers

An extensive compilation of official documents, policy advocacy statements, and assorted commentary on the U.S. decision to go to war in Iraq in 2003 is presented in “The Iraq Papers,” a new book from Oxford University Press.

Since it seems that there will be no new official reckoning of the Iraq war or other Bush Administration policy choices, it will be left to others to achieve their own understanding of the Bush era and its aftermath.  “The Iraq Papers” provides one possible documentary starting point.

“The decision to invade Iraq launched a new doctrine of preemptive war, mired the American military in an intractable armed conflict, disrupted world petroleum supplies, cost the United States billions of dollars, and damaged or ended the lives of hundreds of thousands of Americans and Iraqis,” the book states.

The book editors are not overly perplexed by these events.  Somewhat heavy-handedly, they offer their own interpretation of events involving the decisive influence of neo-conservatives, the unitary executive, and a U.S. drive to global hegemony, among other factors.  Alternative explanations are not considered here.

See “The Iraq Papers,” edited by John Ehrenberg, J. Patrice McSherry, Jose Ramon Sanchez, and Caroleen Marji Sayej, Oxford University Press, January 2010.

Homeland Security Intelligence

An updated description of the intelligence function of the Department of Homeland Security was produced last week by the Congressional Research Service.  See “The Department of Homeland Security Intelligence Enterprise: Operational Overview and Oversight Challenges for Congress” (pdf), March 19, 2010.

“Homeland Security Intelligence: Its Relevance and Limitations” was the topic of a March 18, 2009 hearing of the House Homeland Security Committee, the record of which was published last month.

GAO: White House Erred on Intelligence Oversight

The Obama Administration presented “several misstatements of law and fact” in its March 15 letter opposing legislation to enhance the role of the Government Accountability Office in intelligence oversight, the head of the GAO said in a letter to congressional intelligence committees yesterday.

The GAO letter (pdf) said that neither the Senate nor the House version of the FY2010 intelligence authorization act would fundamentally alter the status quo with respect to the GAO, as the White House letter (pdf) had indicated, but would simply bolster the oversight authority that the GAO already has, enabling it to overcome the obstacles placed in its way by the executive branch.

“The proposed legislative provisions in essence reaffirm GAO’s existing authority in order to address the lack of cooperation GAO has received from certain elements of the IC [intelligence community] in carrying out work at the specific request of the intelligence committees, and other committees of jurisdiction as defined by the rules of the Senate and House,” wrote Acting Comptroller General Gene L. Dodaro in a March 18 letter obtained by Secrecy News.

“GAO acknowledges and does not seek to displace the special relationship between the congressional intelligence committees and the IC,” he wrote.

“However, GAO does not agree with the Administration’s view, originating in a 1988 opinion of the Department of Justice’s Office of Legal Counsel, that the creation of the congressional intelligence oversight structure implicitly exempted reviews of intelligence activities from the scope of GAO’s existing audit authority.”

The executive branch’s interpretation of the law “has resulted in GAO frequently being unable to obtain the access or cooperation necessary to provide useful information to Congress on matters involving the IC,” Mr. Dodaro wrote.

“Even where the matters under evaluation are well outside the scope of traditional intelligence activities… GAO has encountered resistance.”

“While intelligence oversight poses unique challenges, GAO can play an important role in such oversight, and that role is well within our authority and capability,” he wrote.

GAO has no independent stake in intelligence oversight and has plenty of other work to do anyway.  The question is whether Congress wants to take advantage of the investigative and analytical resources that GAO has to offer in order to improve intelligence oversight.  If it does, then the pending legislation would help to clear away the barriers imposed by the executive branch.

“Should either the Senate or House version of the GAO provision at issue become law,” Mr. Dodaro wrote, “I believe that the reaffirmation of GAO’s authorities would help better position GAO to do the type of work that has been requested of us in the past and to respond to the interests of Congress in this realm in the future.”

OSC Views Cuban Media Coverage of Military

Cuban President Raul Castro “more commonly presents himself as a civilian rather than military leader,” observes a new assessment from the DNI Open Source Center.  More generally, “Current [Cuban] senior military officers maintain a largely ceremonial presence in state media, where the military receives limited but overwhelmingly favorable coverage.”

The OSC report has not been approved for public release, but a copy was obtained by Secrecy News. See “Cuba — Military’s Profile in State Media Limited, Positive” (pdf), Open Source Center, February 26, 2010.

Admin Threatens Veto Over GAO Role in Intel Oversight

One of the simplest, most effective ways to strengthen congressional oversight of intelligence would be for Congress to make increased use of specially cleared investigators from the Government Accountability Office.  This is such a straightforward step towards improving oversight that it was even championed by CIA Director Leon Panetta when he was a Congressman.

But the Obama Administration told Congress on Monday that new language to reinforce the GAO’s role in intelligence oversight was among several provisions in the pending FY2010 Intelligence Authorization Act that were objectionable to the White House and that might prompt a presidential veto of the bill.

“Three categories of provisions are so serious that the President’s senior advisers would recommend that the veto the bill if they are included in a bill presented for his signature,” wrote Peter Orszag of the White House Office of Management and Budget in a March 15 letter (pdf).  He cited a requirement to increase congressional notification of covert actions beyond the “Gang of 8”; the proposed GAO language; and a proposed reduction in the budget authorization for the Office of the DNI.  The letter also expressed lesser opposition to numerous other provisions.

The dispute over an increased role for GAO in intelligence oversight is particularly illustrative of the disparate and conflicting interests of the legislative and executive branches.  Should Congress use all the tools at its disposal to improve its oversight of intelligence?  Or is the status quo good enough?  The White House letter implied that the current arrangement is already optimal and that any revision would be destabilizing.

“By allowing GAO to conduct intelligence oversight, these provisions would fundamentally change the statutory framework for oversight of the IC [intelligence community] through the intelligence oversight committees and alter the long-standing relationship and information flow between the IC and intelligence committee members and staff,” Mr. Orszag wrote.

If one believed that the long-standing relationship between the IC and the intelligence committee members and staff was altogether satisfactory, this might be a compelling argument.  But if one concluded that the existing structure has been woefully inadequate, then other options would merit consideration.

Sen. Daniel Akaka (D-HI), Rep. Anna Eshoo (D-CA) and others have repeatedly argued that the GAO could usefully supplement the intelligence oversight process without detracting anything.  “It is Congress’s responsibility to ensure that the IC carries out its critical functions effectively and consistent with congressional authorization. For too long, GAO’s expertise and ability to engage in constructive oversight of the IC have been underutilized,” Sen. Akaka said last year.

In 2008, Sen. Akaka chaired a Senate Homeland Security and Governmental Affairs subcommittee hearing (at which I testified [pdf]) on the feasibility and utility of GAO intelligence oversight.  “Congress must redouble its efforts–that is what we are trying to do–to ensure that U.S. intelligence activities are conducted efficiently, effectively, and with due respect for the civil rights and civil liberties of Americans, and I will work to see that it does,” Sen. Akaka said then.

Amazingly, an earlier version of the proposal for an expanded GAO role in intelligence oversight was introduced in 1987 by then-Rep. Leon Panetta, who is now the Director of the Central Intelligence Agency.

According to Rep. Panetta’s proposed “CIA Accountability Act of 1987” (pdf) (H.R. 3603 in the 100th Congress), “Notwithstanding any other provision of law, the Comptroller General [who directs the GAO] shall audit the financial transactions and shall evaluate the programs and activities of the Central Intelligence Agency” either at his own initiative or at the request of the congressional intelligence committees.

Today, DCIA Panetta is presumably among those senior advisers who would advise a veto of the proposal he once advocated.

At the January 22, 2009 confirmation hearing (pdf) of Adm. Dennis C. Blair to be Director of National Intelligence, Adm. Blair also acknowledged a role for GAO in intelligence oversight.

Sen. Ron Wyden asked him: “If the GAO is conducting a study at the direction of one of the intelligence committees using properly cleared staff, will you give them the access they need to do their work?”

Adm. Blair replied: “Senator, I’m aware that the direction of GAO studies and the terms of them are generally subject to talk between the two branches of government for a variety of reasons, and subject to having those discussions, ultimately I believe the GAO has a job to do and I will help them do that job.”

But the Obama Administration now says it will not help the GAO do their job if that means an enhancement of their legal authority to do it.

Arguably, the Administration is acting rationally in attempting to minimize independent oversight of its intelligence activities.  Who would voluntarily seek out an independent auditor to look over his shoulder?  But that leaves it up to Congress to pursue its own institutional self-interest with equal or greater determination, and to take maximum advantage of the intelligence oversight tools that it has available, including appropriate use of the GAO.

“We’ve already agreed to drop a significant number of the provisions identified as concerns [in the Orszag letter],” a congressional official told Secrecy News.  He declined to say whether the GAO oversight language was among the now-abandoned provisions.

Various Resources

A government website ( that is intended to provide transparency on government contracts and awards currently presents incomplete, inconsistent and sometimes invalid data, the Government Accountability Office said last week.  See “Electronic Government: Implementation of the Federal Funding Accountability and Transparency Act of 2006” (pdf), GAO-10-365, March 2010.

“Improving Transparency and Accessibility of Federal Contracting Databases” (pdf) was the subject of a September 29, 2009 hearing before the Senate Homeland Security and Governmental Affairs Committee (published last month).

“Homeland Security Intelligence: Its Relevance and Limitations” was discussed at a March 2009 hearing of the House Homeland Security Committee (also published last month).

“Widespread violent crimes in the United States posed threats to the lives, properties and personal security of its people,” the Chinese government declared in a new report on the “Human Rights Record of the United States in 2009.” The Chinese government report, a compilation of sad facts, dubious assumptions and assorted exaggerations, was published on March 12 as a rejoinder and a rebuke to the U.S. State Department which published its latest Country Reports on Human Rights Practices on March 11.  “The [U.S.] reports are full of accusations of the human rights situation in more than 190 countries and regions including China, but turn a blind eye to, or dodge and even cover up rampant human rights abuses on its own territory,” the new Chinese report said.