No-Fly Zones: Considerations for Congress

The decision to impose a no-fly zone on Libya is scrutinized from various perspectives in a new report (pdf) from the Congressional Research Service.

The report distinguishes “authorization” to establish a no-fly zone from the “legality” of the move, and also from its “legitimacy.”  “The three concepts overlap but are all distinct,” the report says.

The report, which may help to inform congressional deliberations, also treats operational and cost issues.  A copy was obtained by Secrecy News.  See “No-Fly Zones: Strategic, Operational, and Legal Considerations for Congress,” March 18, 2011.

“From the Washington Administration to the present, Congress and the President have enacted 11 separate formal declarations of war against foreign nations in five different wars,” according to another newly updated CRS report.  Yet there have been hundreds of U.S. military engagements over the past two centuries.

The significance of a declaration of war as compared to an “authorization” for the use of force was explored in detail in “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications,” March 17, 2011.

For a brief overview of Japan’s nuclear disaster, see “Fukushima Nuclear Crisis,” March 15, 2011.

DNI Orders “Integrated Defense” of Intelligence Information

The Director of National Intelligence is calling for the “integrated defense” of intelligence community (IC) information and systems to protect against unauthorized disclosures of intelligence sources and methods.

While every intelligence agency already has its own security procedures, a new Intelligence Community Directive (pdf) issued by the DNI would require a more coordinated and consistent approach, involving “unified courses of action to defend the IC information environment.”

“The IC information environment is an interconnected shared risk environment where the risk accepted by one IC element is effectively accepted by all,” the new Directive said.  Therefore, “integrated defense of the IC information environment is essential to maintaining the confidentiality, integrity, and availability of all information held by each IC element.”

The Directive does not specify the defensive measures that are to be taken, but states that they should address “the detection, isolation, mitigation and response to incidents, which include spills, outages, exploits, attacks and other vulnerabilities.”  An IC Incident Response Center will maintain “situational awareness of network topology, including connection points among IC element networks; threats, vectors, and actions that could adversely affect the IC information environment; and the overall health and status of IC information environment defenses.”

See “Integrated Defense of the Intelligence Community Information Environment,” Intelligence Community Directive (ICD) 502, March 11, 2011.

Although intelligence agencies are not waiting for security policy guidance from Congress, the intelligence oversight committees seem determined to provide it anyway.

In its initial markup of the FY2011 intelligence authorization bill, the House Intelligence Committee has prescribed the establishment of an Insider Threat Detection Program “in order to detect unauthorized access to, or use or transmission of, classified intelligence.”

The Senate Intelligence Committee reportedly wants to require a revised or supplemental non-disclosure agreement for intelligence employees, by which they would consent in advance to surrender their pension benefits if they were found to have committed an unauthorized disclosure.

As far as is known, neither Committee has advanced any new proposals for reducing unnecessary classification or strengthening protections for national security whistleblowers.

Review of CIA Interrogation Program Still Unfinished

It is nearly a decade since the Central Intelligence Agency embarked on its controversial post-9/11 program of prisoner detention and interrogation, which included “enhanced” procedures that would later be repudiated and that were widely regarded as torture.  But even now, an accurate and complete account of that episode remains unavailable.

It is more than two years since the Senate Intelligence Committee belatedly began “a study of the CIA’s detention and interrogation program.”  The Committee reported (pdf) this month that “the CIA has made available to the Committee over 4 million pages of CIA records relating to its detention and interrogation program.”

Yet the Committee said that its two year old review of the nearly decade-old program is still not complete:  “The review has continued toward the goal of presenting to the Committee, in the [current] 112th Congress, the results of the review of the extensive documentary record that has been provided to the Committee.”  There was no mention of presenting the results of the review to the public. See “Report of the Select Committee on Intelligence Covering the Period January 3, 2009 to January 4, 2011,” Senate Select Committee on Intelligence, March 17, 2011.

The Intelligence Committee report presented a number of other noteworthy statements:

A review of electro-optical intelligence satellite collection systems by members of the Committee’s Technical Advisory Group in 2010 “found flawed processes and results from the earliest stage of the requirements process… [and] judged the technical justification for the proposed system fell far short of the standard they expected from an investment of this magnitude.”

The Committee staff “found that too many [defense] attaches are not sufficiently conversant in the languages, cultures, and traditions of the countries to which they are assigned.”

Intelligence agencies continue to fail to produce financial records that can be independently audited.  The National Reconnaissance Office “is the only one of the IC agencies required to produce auditable financial statements that has achieved what appears to be a sustainable opinion with no qualifications from its independent auditors…. The CIA has submitted its financial reports to an independent auditor but has received a disclaimer of opinion due to the inability of the auditor to gather certain relevant facts.  The NSA, DIA, and NGA are still not even prepared to submit their financial reports to independent audit,” the Senate report said.

Use of Military Force in Domestic Disturbances (1945)

Under extreme circumstances, U.S. military force may be turned against American civilians. An unusually explicit 1945 U.S. military field manual (pdf) described tactics for suppressing riots or protests when State and local officials are unable to control the situation.

“Domestic disturbances are manifestations of civil unrest or tension which take the form of demonstrations or rioting. These public demonstrations or riots may reach such proportions that civil authorities cannot maintain law and order by usual methods. Such disturbances may be caused by agitators, racial strife, controversies between employees and employers concerning wages or working conditions, unemployment, lack of housing or food, or other economic or social conditions.”

“A city held by any organized rioters will be attacked generally in the same manner as one held by enemy troops.”

“When small-arms fire is necessary, troops are instructed to aim low to prevent shots going over the heads of the mob and injuring innocent persons not members of the mob,” the manual said.

For definitional purposes, “a crowd is a large number of persons in a close body.” A “mob is… a crowd whose members, under the stimulus of intense excitement, have lost their sense of reason and respect for law.”

“A mob usually is attacked on the flank, opposite the direction in which it is desired to drive it. When it is apparent that those in front cannot retreat because of pressure from the rear, pressure on the front should be eased temporarily while the rest of the mob is attack with chemical grenades,” the manual advised.

“Bayonets are effective when used against rioters who are able to retreat, but they should not be used against men who are prevented by those behind them from retreating even if they wish to do so.”

The manual, which was originally classified “Restricted,” has long been deemed obsolete and has been superseded by other guidance on military support to civil authorities. It was recently digitized by the Combined Arms Research Library at Fort Leavenworth. See “Domestic Disturbances,” Field Manual 19-15, War Department, July 1945.

New START Data Exchange: Will it Increase or Decrease International Nuclear Transparency?

U.S. officials say that aggregate numbers of the New START treaty will be made publicly available but that these may be very general numbers and a decision still has to be made. For a copy of the final START aggregate numbers, click here.

By Hans M. Kristensen

The first data exchange of the New START treaty between the United States and Russia has taken place, according to a report by RIA Novosti.

This is the first of more than 20 such data exchanges planned under the treaty for the next 10 years where Russia and the United States twice a year will send each other a list showing how many long-range ballistic missiles and heavy bombers they have and how many nuclear weapons they carry.

But while the exchanges will increase U.S-Russia nuclear transparency, the rest of the world may be facing a future with less information about U.S. and Russian strategic nuclear forces than in the past.

“All exchanges are classified and will not be subject to release,” a U.S. official told me. “There may be some information on very general numbers under the Treaty that could be made public, but that is still to be determined, and will not occur for a least six months if it occurs at all.” Continue reading

Is the Secrecy System an Autonomous Entity?

Does the secrecy system function according to its own autonomous principles?  Is it beyond the rule of law and outside of presidential control?

Not exactly.  If that were true, then there would never be involuntary changes to classification policy and there would be no compulsory declassification of classified information.  Fortunately, that is not consistently the case.

And yet there is a disturbing pattern of evidence to show that the secrecy system resists external control, and that it will not reliably fulfill even the most explicit presidential commands or the clearest requirements of law.  For example:

*    On December 29, 2009 President Obama ordered all agencies that classify information to issue final implementing regulations for his new executive order on classification policy by the end of December 2010.  The Department of Defense, the largest classifying agency, did not comply.  It did not request a waiver or an extension, it simply did not comply.  As a result, the most important classification reforms advanced by the President have not taken hold at the Department of Defense.  (“Secrecy Reform Stymied by the Pentagon,” Secrecy News, February 24, 2011).

*    Presidents Clinton, Bush and Obama each ordered that all 25 year old classified records, unless they were specifically exempted, “shall be automatically declassified whether or not the records have been reviewed.”  But agencies have refused to implement this provision or to permit automatic declassification without review, thereby crippling the presidential initiative for streamlining the declassification process.  (Under the 1999 Kyl-Lott Amendment, Congress also complicated this provision by prohibiting public release of declassified records without a separate review for nuclear weapons-related information.)

*    The Secretary of State is in standing violation of the Foreign Relations Act of 1991, which requires her to ensure the publication of a “thorough, accurate, and reliable” documentary record of U.S. foreign policy “not more than 30 years after the events recorded.”  But that is not happening.  And things are getting worse, not better.  As a result of the non-compliance by several agencies with timely declassification requirements, there “appears to be a growing distance between the statutory obligation to reach a 30-year line… and the actual length of time it has been taking to compile, review, revise, declassify, and publish those volumes,” according to the most recent report to the Secretary (pdf) from the State Department Historical Advisory Committee.

The failure of law and policy to gain purchase on classification practice is alarming on several levels.  Among other things, it means that would-be reformers cannot be satisfied with the “mere” passage of a new law or the adoption of a new executive order, since the practical effect of these steps may turn out to be illusory.  And it casts a different, more positive light on the role of unauthorized disclosures, which in some cases can compensate for the inability or refusal of government agencies to implement binding declassification and disclosure requirements.

Comments Invited on “Transforming Classification”

The Public Interest Declassification Board, an advisory committee appointed by the President and Congressional leaders, is developing recommendations on how to transform the national security classification system.  It has invited interested members of the public to comment on its emerging recommendations over the next several weeks on a new blog here.

The Board itself has no power to effect any transformation; it is purely advisory.  However, it has also been fairly influential.  Its advocacy of a National Declassification Center (first proposed by the Moynihan Commission in 1997) probably helped bring that concept to fruition.  In any case, even if the Board has little direct leverage of its own, “we do have access” to senior policy makers, said Board Chair Martin Faga, a former National Reconnaissance Office director, last week.

The initial recommendations of the Board stop well short of anything that we would call transformation.  Most fundamentally, the Board does not propose any reductions in the scope of what is classified.  It also does not inquire whether today’s hierarchical classification system is appropriate to a networked world, much less what could be devised to replace it.

But the very fact of a public conversation on the purpose and character of national security secrecy may have transformative implications.  So interested persons are encouraged to participate.

Board member Sanford J. Ungar wrote about “Unnecessary Secrets” in the March/April 2011 issue of Columbia Journalism Review.

Court Seals Unclassified Docs in Drake “Leak” Case

Prosecutors in the case of the former National Security Agency official Thomas A. Drake, who is suspected of leaking classified information to a reporter, last week asked the court to block public access to two letters that were introduced as exhibits by the defense earlier this month.  Late Friday, the court agreed to seal the two exhibits.  But they remain publicly accessible anyway.

The exhibits (pdf) describe the classification status of several NSA records that were found in the home of Mr. Drake, explaining why in each case the prosecution considers the records classified.  The defense disputes their classification and denies that Mr. Drake ever retained any classified records at his home.

Mr. Drake’s defense said (pdf) that it intends to introduce testimony at trial “which will include a discussion of the appropriate assignment of classification controls under the Executive Order and the consequences and pervasiveness of inappropriately assigning classification controls.”

To document the classification judgments that it disputes, the defense also filed the two letters from the Justice Department as exhibits on March 11.

On March 16, prosecutors asked the court (pdf) to seal those two records.  “As grounds [for sealing the records], the information contained within the exhibits derives from NSA. As the holder of the privilege for this information, NSA has classified the documents as ‘FOUO’, which means ‘For Official Use Only.’ This means that the information is not for public dissemination. Until such time as NSA downgrades the information to ‘Unclassified,’ the exhibits should not be publicly filed,” prosecutors wrote.

Ironically, this prosecution argument illustrates the confusion about classification policy that prevails at NSA, in the Justice Department and in much of the government.

The NSA could not “classify” the records as FOUO and cannot “downgrade” them to “unclassified” because they are already unclassified.  “Information cannot be classified and FOUO at the same time,” according to the governing DoD regulation 5200.1-R.  “By definition, information must be unclassified in order to be designated FOUO.”

Without waiting for a response from the defense or from other interested parties, Judge Richard D. Bennett of the Maryland District Court granted the prosecution motion and sealed the records.  His March 18 decision on the matter, which was first reported by Politico, was also sealed.

The newly-sealed records remain available, however, on the Federation of American Scientists web site here. Besides being unclassified, these records do not prejudice either the prosecution or the defense, to whom they were originally written.

My Appearance on NPR’s Science Friday

Today at 2 pm, tune into NPR’s Science Friday with Ira Flatow for an update on Japan’s malfunctioning nuclear reactors and the evolving crisis.  As continued attempts are made to cool the reactors and spent fuel rod pools at Japan’s Fukushima Daiichi nuclear facility, I’ll discuss the state of the deteriorating nuclear facility. Call with questions toll free at 800-989-8255.