Hezbollah, and More from CRS

Noteworthy new reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“Hezbollah: Background and Issues for Congress,” October 8, 2010.

“Pakistan’s Nuclear Weapons: Proliferation and Security Issues,” October 7, 2010.

“Burma’s 2010 Election Campaign: Issues for Congress,” October 6, 2010.

“Drug Courts: Background, Effectiveness, and Policy Issues for Congress,” October 12, 2010.

“Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency,” October 8, 2010.

“Defense Surplus Equipment Disposal: Background Information,” October 6, 2010.

“The National Security Council: An Organizational Assessment,” September 23, 2010.

GAO Role in Intel Oversight to be Determined

The recently enacted 2010 Intelligence Authorization Act requires the Director of National Intelligence to prepare a directive concerning access by the congressional Government Accountability Office (GAO) to intelligence information.  The forthcoming directive, the content of which was not clearly specified by Congress, could enable GAO investigators to play a more significant role in intelligence oversight, or it could effectively shut the door on them.

According to a newly disclosed May 27, 2010 letter (pdf) from then-National Security Advisor James L. Jones to Rep. Anna Eshoo, the GAO should be excluded from nearly every aspect of intelligence oversight that involves… intelligence.

While GAO is nominally free to address “a broad range of issues and topics” that concern the intelligence community, Gen. Jones wrote, “There are four areas where we look to the intelligence committees to exercise exclusive jurisdiction: (1) the evaluation, review, and audit of intelligence activities, capabilities, programs, and operations; (2) activities involving intelligence sources; (3) activities involving intelligence methods; and (4) the analysis of intelligence funding.”

So except for intelligence activities, capabilities, programs, operations, sources, methods and funding — everything else is eligible for GAO oversight.

The exclusions advanced by Gen. Jones “essentially cut GAO out of the game,” a congressional staffer told Secrecy News.  “And believe me, DOJ, FBI and DHS have been using this position as a rationale for denying GAO information. This does not give me much hope as we start ramping up to work with ODNI on the access protocols they are required to write.”

However, DNI James R. Clapper expressed a considerably narrower view of what should be off-limits to GAO in public remarks (pdf) earlier this month:  “I am more concerned or sensitive about GAO getting into what I would consider sort of the core essence of intelligence – that is, evaluating sources and methods, critiquing national intelligence estimates, doing this sort of thing, which I think strikes at the very essence of what the intelligence committees were established to do.”

Even so, he suggested that individual GAO staff members could also pursue such highly sensitive matters if this was formally done under direction of the intelligence committees:

“Now, [if] they want to have the GAO assist, detail GAO staff to – if they have the subject matter experts – to the committees. I think that’s fine as long as it’s done under the auspices of the committees when you’re getting at the core essence of what intelligence is and does,” Gen. Clapper said.

This view seems to allow much greater space for compromise, especially since there is much that GAO could do in terms of intelligence program audits and reviews that would not involve “evaluating sources” or otherwise impinge on “the core essence of intelligence.”  The new DNI directive is to be coordinated with the GAO and submitted to Congress by May 1, 2011.

Invention Secrecy Still Going Strong

There were 5,135 inventions that were under secrecy orders at the end of Fiscal Year 2010, the U.S. Patent and Trademark Office told Secrecy News last week.  It’s a 1% rise over the year before, and the highest total in more than a decade.

Under the Invention Secrecy Act of 1951, patent applications on new inventions can be subject to secrecy orders restricting their publication if government agencies believe that disclosure would be “detrimental to the national security.”

The current list of technology areas that is used to screen patent applications for possible restriction under the Invention Secrecy Act is not publicly available and has been denied under the Freedom of Information Act.  (An appeal is pending.)  But a previous list dated 1971 and obtained by researcher Michael Ravnitzky is available here (pdf).

Most of the listed technology areas are closely related to military applications.  But some of them range more widely.

Thus, the 1971 list indicates that patents for solar photovoltaic generators were subject to review and possible restriction if the photovoltaics were more than 20% efficient.  Energy conversion systems were likewise subject to review and possible restriction if they offered conversion efficiencies “in excess of 70-80%.”

One may fairly ask if disclosure of such technologies could really have been “detrimental to the national security,” or whether the opposite would be closer to the truth.  One may further ask what comparable advances in technology may be subject to restriction and non-disclosure today.  But no answers are forthcoming, and the invention secrecy system persists with no discernible external review.

New Books Received

Secrecy News was pleased to receive the following books, though we have not yet had a chance to read them closely.

“The Reagan Files: The Untold Story of Reagan’s Top-Secret Efforts to Win the Cold War” edited by Jason Saltoun-Ebin is a rich collection of declassified letters, transcripts and National Security Council meeting minutes gleaned from the Reagan Library concerning U.S.-Soviet relations and the end of the Cold War,

“Torture, Terror, and Trade-Offs: Philosophy for the White House” by Jeremy Waldron investigates questions of law and security, public safety and individual rights.

“Continental Defense in the Eisenhower Era: Nuclear Antiaircraft Arms and the Cold War” by Christopher J. Bright builds on declassified files to tell the story of the thousands of nuclear antiaircraft weapons which were deployed around U.S. cities during the Cold War.

EFF Announces Pioneer Awards

I’m very grateful to the Electronic Frontier Foundation for naming me as one of the four recipients of its 2010 Pioneer Awards, which are intended “to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology.”

EFF is not only a prominent voice of online freedom, but is itself a pioneer in confronting unlawful domestic surveillance, the use of the state secrets privilege by the Bush and Obama Administrations to foreclose litigation, and other difficult issues.  So it’s an honor to be recognized by this outstanding organization.

The EFF Pioneer Awards ceremony will be held November 8 in San Francisco and is open to the public.  For ticket information and other background see here.

Confronting Overclassification

The problem of overclassification — in which inappropriate restrictions are imposed on the disclosure of information in the name of national security — is at the root of many current disputes over access to government information, including controversies over leaks, FOIA litigation, prepublication review, and others areas of contention.

This has been true for many years, but there is still hardly any systematic method for confronting and correcting overclassification.

In a new article at ForeignPolicy.com, I take a critical look at the current policy landscape, including the newly enacted Reducing Over-classification Act and the pending Fundamental Classification Guidance Review.  See “Telling Secrets,” October 15.

A Double Standard in Leak Inquiries?

It seems that some disclosures of classified information can lead a person to poverty, ignominy and a jail sentence, while others provide a royal road to fame and fortune.  Some leaks are relentlessly investigated, while others are tolerated or encouraged.

This apparent inconsistency, as notably illustrated once again in the phenomenon of author Bob Woodward, was examined by Michael Isikoff in “‘Double standard’ in White House leak inquiries?”, NBC News, October 18.

In the wake of an earlier Woodward book in 2007, Rep. Henry Waxman noted a similar discrepancy in the Bush Administration’s response to leaks.

“The administration seems to be inconsistent in their approach in these cases, and it’s troubling,” Rep. Waxman said at a March 16, 2007 hearing. “They raise very serious questions about whether White House policies on sensitive information are driven by political considerations. If it’s a critic [who discloses classified information] they are going to investigate, they’re going to really stop it. When it comes to people in-house, people they like, people they trust, well, the investigation hasn’t even started with regard to those people.”

CIA Sues Author in Prepublication Review Dispute

The Central Intelligence Agency has filed a lawsuit against one of its own former employees after he published a book on intelligence without first getting the CIA’s prior approval, the Washington Times reported today.

A book called “The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture” was written by a former CIA clandestine services officer under the pen name Ishmael Jones.  It was published earlier this year, the government says, “in defiance of the CIA’s Publications Review Board’s disapproval and instructions not to publish.”  See “CIA sues ex-agent for book’s breach of ‘secrecy'” by Bill Gertz, Washington Times, October 19, 2010.

The CIA’s complaint (pdf) against Jones, filed in July, says that he violated the terms of the non-disclosure agreement that he signed as a condition of his employment and that, as a result, he is in breach of contract.

As a first order of business, the CIA sought (pdf) and gained the Court’s approval (pdf) to proceed against Jones using his pseudonym since, the Agency argued, disclosing his real name could compromise national security.

“For CIA officers to effectively and securely collect foreign intelligence and conduct clandestine foreign intelligence activities around the world, they cannot openly admit that they work for the CIA,” the government brief explained.

But “if defendant’s true name and affiliation with the CIA were officially acknowledged, foreign governments, enterprising journalists, and amateur spy-hunters would be able to discover and publicly disclose the cover methods defendant used to conceal his true status as a CIA officer,” the brief said.

The class of persons who constitute “amateur spy-hunters” was not further identified.

DoD Sees No Intelligence Compromise from Wikileaks Docs

The unauthorized release of tens of thousands of classified U.S. military records from the war in Afghanistan last July on the Wikileaks website did not result in the disclosure of sensitive intelligence sources, according to a mid-August assessment by the Department of Defense that has just been made public.

“The review to date has not revealed any sensitive intelligence sources and methods compromised by this disclosure,” wrote Secretary of Defense Robert M. Gates in an August 16 letter (pdf) to Senate Armed Services Committee Chairman Carl Levin.

This is consistent with the fact that the Afghan war documents disclosed by Wikileaks were classified at the collateral Secret level and were not compartmented intelligence records.  Intelligence source identities and related information would normally not appear in Secret documents.

On the other hand, Secretary Gates wrote, “the documents do contain the names of cooperative Afghan nationals and the Department takes very seriously the Taliban threats recently discussed in the press.  We assess this risk as likely to cause significant harm or damage to the national security interests of the United States and are examining mitigation options.”

The Taliban threats mentioned by Secretary Gates include a statement by Taliban spokesman Zabihullah Mujahid, who said on July 29 that the Taliban were studying the Wikileaks documents in order to identify and punish Afghan collaborators.  “We will investigate through our own secret service whether the people mentioned are really spies working for the U.S. If they are U.S. spies, then we know how to punish them,” the Taliban spokesman said.

“People named in those documents have a reasonable belief that they are going to get killed,” said author and New Yorker writer Steve Coll, who has reported extensively from the region.  See “Taliban Study WikiLeaks to Hunt Informants” by Robert Mackey, New York Times The Lede, July 30.  However, there is no evidence to date that the Taliban has carried out any such threats against individuals who were named in the Wikileaks documents.

The release of the August 16 Gates memo was reported on October 15 by the Associated Press and Bloomberg News.