Govt Response to Wikileaks Said to Cause More Damage

The U.S. Government insists that the classification markings on many of the leaked documents being published by Wikileaks and other organizations are still in force, even though the documents are effectively in the public domain, and it has directed federal employees and contractors not to access or read the records outside of a classified network.

But by strictly adhering to the letter of security policy and elevating security above mission performance, some say the government may be causing additional damage.

“At DHS we are getting regular messages [warning not to access classified records from Wikileaks],” one Department of Homeland Security official told us in an email message. “It has even been suggested that if it is discovered that we have accessed a classified Wikileaks cable on our personal computers, that will be a security violation. So, my grandmother would be allowed to access the cables, but not me. This seems ludicrous.”

“As someone who has spent many years with the USG dealing with senior officials of foreign governments, it seems to me that the problem faced by CRS researchers (and raised by you) is going to be widespread across our government if we follow this policy.”

“Part of making informed judgments about what a foreign government or leader will do or think about something is based on an understanding and analysis of what information has gone into their own deliberative processes. If foreign government workers know about something in the Wikileaks documents, which clearly originated with the U.S., then they will certainly (and reasonably) assume that their US counterparts will know about it too, including the staffers. If we don’t, they will assume that we simply do not care, are too arrogant, stupid or negligent to find and read the material, or are so unimportant that we’ve been intentionally left out of the information loop. In any such instance, senior staff will be handicapped in their preparation and in their inter-governmental relationships,” the DHS official said.

“I think more damage will be done by keeping the federal workforce largely in the dark about what other interested parties worldwide are going to be reading and analyzing. It does not solve the problem to let only a small coterie of analysts review documents that may be deemed relevant to their own particular ‘stovepiped’ subject area. Good analysis requires finding and putting together all the puzzle pieces.”

So far, however, this kind of thinking is not finding a receptive audience in government. There has been no sign of leadership from any Administration official who would stand up and say:  “National security classification is a means, and not an end in itself.  What any reader in the world can discover is no longer a national security secret. We should not pretend otherwise.”

Treasury Classification Guide, and Other Resources

The Department of the Treasury has recently produced a consolidated classification guide, detailing exactly what kinds of Treasury information may be classified at what level and for how long.  It is in such agency classification guides, not in high-level government-wide policy statements, that the nuts and bolts of government secrecy policy are to be found, and perhaps to be changed.  See “Security Classification Guide” (pdf), Department of the Treasury, December 2010.

The Congressional Research Service yesterday offered its assessment of the Stuxnet worm, which was evidently designed to damage industrial control systems such as those used in Iran’s nuclear program.  See “The Stuxnet Computer Worm: Harbinger of an Emerging Warfare Capability” (pdf), December 9, 2010.

Intelligence historian Jeffrey Richelson has written what must be the definitive account of the rise and fall of the National Applications Office, the aborted Department of Homeland Security entity that was supposed to harness intelligence capabilities for domestic security and law enforcement applications. The article, which is not freely available online, is entitled “The Office That Never Was: The Failed Creation of the National Applications Office.”  It appears in the International Journal of Intelligence and Counter Intelligence, vol. 24, no. 1, pp. 65-118 (2011).

The latest issue of the Journal of National Security Law & Policy (vol. 4, no. 2) is now available online.  Entitled “Liberty, terrorism and the laws of war,” it includes several noteworthy and informative papers on intelligence and security policy.

Publishing Classified Info: A Review of Relevant Statutes

“There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables,” according to a newly updated report (pdf) from the Congressional Research Service, “although government employees who disclose such information without proper authority may be subject to prosecution.”

But there is a thicket of statutes, most notably including the Espionage Act, that could conceivably be used to punish unauthorized publication of classified information, such as the massive releases made available by Wikileaks.  See “Criminal Prohibitions on the Publication of Classified Defense Information”, December 6, 2010.

The updated CRS report sorts through those statutes, provides an account of recent events, presents a new discussion of extradition of foreign nationals who are implicated by U.S. law, and summarizes new legislation introduced in the Senate (S. 4004).

A previous version (pdf) of the CRS report, issued in October, was cited by Sen. Dianne Feinstein in a Wall Street Journal op-ed yesterday in support of prosecuting Wikileaks, though the report did not specifically advise such a course of action.  Sen. Feinstein also seemed to endorse the view that the State Department cables being released by Wikileaks are categorically protected by the Espionage Act and should give rise to a prosecution under the Act.

But the Espionage Act only pertains to information “relating to the national defense,” and only a minority of the diplomatic cables could possibly fit that description.

The new CRS report put it somewhat differently: “It seems likely that most of the information disclosed by WikiLeaks that was obtained from Department of Defense databases [and released earlier in the year] falls under the general rubric of information related to the national defense. The diplomatic cables obtained from State Department channels may also contain information relating to the national defense and thus be covered under the Espionage Act, but otherwise its disclosure by persons who are not government employees does not appear to be directly proscribed. It is possible that some of the government information disclosed in any of the three releases does not fall under the express protection of any statute, despite its classified status.”

Incredibly, CRS was unable to meaningfully analyze for Congress the significance of the newest releases because of a self-defeating security policy that prohibits CRS access to the leaked documents.

The CRS report concludes that any prosecution of Wikileaks would be unprecedented and challenging, both legally and politically.  “We are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.”

For our part, we would oppose a criminal prosecution of Wikileaks under the Espionage Act.

CRS Seeks Guidance on Using Leaked Docs

After its access to the Wikileaks web site was blocked by the Library of Congress, the Congressional Research Service this week asked Congress for guidance on whether and how it should make use of the leaked records that are being published by Wikileaks, noting that they could “shed important light” on topics of CRS interest.

CRS “has informed our House and Senate oversight committees, and solicited their guidance, regarding the complexities that the recent leaks of classified information present for CRS,” wrote CRS Director Daniel Mulhollan in a December 6 email message (pdf) to all CRS staff.  “I have also contacted the majority and minority counsels of select committees in the House and Senate requesting guidance on the appropriate boundaries that CRS should recognize and adhere to in summarizing, restating or characterizing open source materials of uncertain classification status in unclassified CRS reports and memoranda for Congress.”

“Our challenge is how to balance the need to provide the best analysis possible to the Congress on current legislative issues against the legal imperative to protect classified national security information. This is especially a problem in light of the massive volume of recently released documents, which may shed important light on research and analysis done by the Service,” Mr. Mulhollan wrote.

“As guidance becomes available from Congress, I will follow-up with additional information.  At present, it seems clear that the republication of known classified information by CRS in an unclassified format (e.g., CRS reports or congressional distribution memoranda) is prohibited. We believe this prohibition against the further dissemination of classified information in an unclassified setting applies even if a secondary source (e,g., a newspaper, journal, or website) has reprinted the classified document. The laws and applicable regulations are decidedly less clear, however, when it comes to referencing and citing secondary sources that refer to, summarize, or restate classified information.”

A copy of Mr. Mulhollan’s email message was obtained by Secrecy News.

Tac Nuke Numbers Confirmed?

PDUSPD Jim Miller appears to confirm FAS/NRDC estimates for NATO and Russia tactical nuclear weapons.

By Hans M. Kristensen

A Wikileaks document briefly posted by The Guardian Monday appears to give an official number for the U.S. nuclear weapons deployed in Europe: 180.

The number appears in a leaked cable written by U.S. NATO Ambassador Ivo Dalder in September 2009, describing an earlier Nuclear Posture Review briefing U.S. Principal Deputy Under Secretary of Defense for Policy Jim Miller gave to NATO in July 2009.

Miller’s number is smack in the middle of the estimate Stan Norris and I have developed. I recently published a snapshot here (previous NATO posts are here), and a more detailed overview will appear in the January Nuclear Notebook in the Bulletin of the Atomic Scientists.

Miller also stated that Russia had 3,000-5,000 plus tactical nuclear weapons. That also fits our estimate of approximately 5,300 weapons, previously published here and here.

Whether Miller was providing certified U.S. intelligence numbers or simply referenced good-enough nonofficial public estimates is less clear. But his use of a specific number (180) for Europe rather than a range suggests that it might an official number. Continue reading

Biosecurity Bills Before Congress

Several biosecurity related bills are being considered by Congress. Photo credit Harry Keely.
With the lame-duck congressional session drawing to a close there is not much time for action on the biosecurity related bills before Congress.  So what does this mean for biosecurity and biosecurity related legislation?  Congress is considering several bills related to biosecurity, but little progress is expected during the remainder of the lame-duck session.

First, S.510, the FDA Food Safety Modernization Act, passed the Senate last week on a bipartisan basis with a vote of 73-25.  A similar version of the bill, which aims to update the Food and Drug Administration’s food safety policies for the first time in over sixty years, passed the House last year.

At a news conference in 2004, outgoing Health and Human Services Secretary Tommy Thompson famously said, “I, for the life of me, cannot understand why the terrorists have not, you know, attacked our food supply because it is so easy to do. And we are importing a lot of food from the Middle East, and it would be easy to tamper with that.”  This bill would increase food safety and strengthen biosecurity by increasing the FDA’s power to enforce mandatory recalls of contaminated food and the number of inspections of food processors. Continue reading

Missile Watch – November 2010

Missile Watch

A publication of the FAS Arms Sales Monitoring Project

Vol. 3, Issue 3

November 2010

Editor: Matt Schroeder


Editor’s Note: Wikileaks and arms trafficking, Missile Watch sponsorship program

Global News: UN Arms Register: Venezuela was the largest importer of MANPADS in 2009

Global News: Extradition of Viktor Bout could reveal much about the illicit arms trade

Afghanistan: No evidence of Iranian MANPADS training, claims NATO official

Egypt: Another Massive Missile Cache Discovered in the Sinai

Somalia: Photos of missile confirms claims in UN report, but questions remain

United States: FAS obtains key counter-MANPADS report

Additional News & Resources

About the Authors

About Missile Watch

Download full issue

Editor’s Note

The surprise extradition of notorious arms trafficker Viktor Bout to the United States tops the list of developments covered in this edition of Missile Watch. The former Russian intelligence officer is widely considered to be one of the most prolific arms traffickers of the last twenty years, and his trial is likely to yield important new insights into the illicit arms trade. Also noteworthy is the release of the Department of Homeland Security’s final report on its counter-MANPADS program. The report confirms that two anti-missile systems evaluated during the program are capable of protecting planes from MANPADS, but the $43 billion price tag may preclude their installation on more than a small number of airliners.

Continue reading

Congress Receives Nuclear Warhead Plan

A white paper describes plans for a joint warhead.

By Hans M. Kristensen

The National Nuclear Security Administration (NNSA) has sent Congress a white paper describing plans for extending the life of the W78 warhead on the Minuteman III intercontinental ballistic missile (ICBM).

According to the paper, W78 Life Extension Program Description and Work Scope, a Phase 6.1 study would begin in February 2011 and seek to produce the first warhead in 2021.

Although focused on extending the life of the W78 warhead itself, the study includes an adaptable warhead option to join the W78 and W88 warheads for the purpose of producing a modified warhead that can be deployed on both the Minuteman and the Navy’s Trident II D5 sea-launched ballistic missile (SLBM). Continue reading

Blocking Access to Wikileaks May Harm CRS, Analysts Say

The Library of Congress confirmed on Friday that it had blocked access from all Library computers to the Wikileaks web site in order to prevent unauthorized downloading of classified records such as those in the large cache of diplomatic cables that Wikileaks began to publish on November 28.

Since the Congressional Research Service is a component of the Library, this means that CRS researchers will be unable to access or to cite the leaked materials in their research reports to Congress.  Several current and former CRS analysts expressed perplexity and dismay about the move, and they said it could undermine the institution’s research activities.

“It’s a difficult situation,” said one CRS analyst. “The information was released illegally, and it’s not right for government agencies to be aiding and abetting this illegal dissemination.  But the information is out there.  Presumably, any Library of Congress researcher who wants to access the information that Wikileaks illegally released will simply use their home computers or cellphones to do so.  Will they be able to refer directly to the information in their writings for the Library?  Apparently not, unless a secondary source, like a newspaper, happens to have already cited it.”

“I can understand LOC blocking the public’s access to Wikileaks,” a former CRS analyst said.  “It would have no control over someone from the public using classified information for impermissible or improper purposes.  [But] the connection between LOC and CRS has always been somewhat fuzzy because Congress intended CRS to have a certain amount of autonomy.  There should be room for CRS to adopt a different policy, particularly for specialists who have security clearances, know how to protect classified information, and can be entrusted to use Wikileaks appropriately.  To me, it is a wrong course to simply close the door tightly without searching for a compromise needed to continue providing Congress with high-level professional analysis.”

In fact, if CRS is “Congress’s brain,” then the new access restrictions could mean a partial lobotomy.

“I don’t know that you can make a credible argument that CRS reports are the gold standard of analytical reporting, as is often claimed, when its analysts are denied access to information that historians and public policy types call a treasure trove of data,” another former CRS employee said.

“I understand the rationale behind the policy decision to preclude government agencies from making the information available via their sites as a matter of pure principle.  On the other hand (as CRS is famous for saying), in some cases it would clearly diminish the weight of some of the analysis CRS does on policy issues, particularly on foreign affairs and military strategy where it is widely known that key information that would help inform thoughtful and comprehensive analysis was released on Wikileaks.”

“As an example, when [CRS Middle East analyst] Ken Katzman writes on U.S. policy towards Iran I don’t know how he could meet the high professional standards for completeness and accuracy he routinely meets if he can’t refer to the information in the [leaked] diplomatic notes that express the thoughts of key leaders in the region on the need to strike Iran’s nuclear program.  The same with North Korea; how do you provide Congress complete and accurate analysis to inform their decision making that ignores the [leaked] information on China’s increasing frustration with Pyongyang?  The examples could go on and on.”

“I’m sure public policy analysts from other organizations are going to use the [Wikileaks] information and their reports may prove more valuable to decision makers than CRS reports,” the former CRS employee said.

Another former analyst questioned the legal basis for the Library of Congress’s action.

“In its press release, LOC seems to be saying that it is following OMB advice regarding the obligation of federal agencies and federal employees to protect classified information and to otherwise protect the integrity of government information technology systems.  But LOC is statutorily chartered as the library of the House and the Senate.  It is a legislative branch agency.  I don’t recall either chamber directing the blocking of access to Wikileaks for/or by its committees, offices, agencies, or Members.”

Interestingly, the OMB guidance did not require federal agencies to block access to Wikileaks, only to warn employees against downloading classified information.  So by imposing such blocks, the Library of Congress has actually exceeded the instructions of OMB.

The Library did not reply to an inquiry from Secrecy News over the weekend concerning the impact of its restricted access policy on CRS.  If a reply is forthcoming, it will be posted here.