Presidential Directive on “National Preparedness”

The Obama Administration today released the text of Presidential Policy Directive (PPD) 8 (pdf) on “National Preparedness.”  The Directive, signed by President Obama on March 30, generally calls for development of systematic response plans for natural and manmade disasters, and seeks to enlist broad engagement in the process.

“This directive is aimed at strengthening the security and resilience of the United States through systematic preparation for the threats that pose the greatest risk to the security of the Nation, including acts of terrorism, cyber attacks, pandemics, and catastrophic natural disasters. Our national preparedness is the shared responsibility of all levels of government, the private and nonprofit sectors, and individual citizens. Everyone can contribute to safeguarding the Nation from harm . As such, while this directive is intended to galvanize action by the Federal Government, it is also aimed at facilitating an integrated, all-of-Nation, capabilities-based approach to preparedness.”

From a secrecy policy perspective, two points may be noted.

First, while presidential directives are fundamental instruments of national policy, the Obama White House does not make them available on the White House web site.  You can find the names of hundreds of thousands of tourists who visited the White House and other information of questionable value and utility, but you cannot find a collection of unclassified directives issued by President Obama.  This is incongruous.

Second, it is noteworthy that the new Presidential Policy Directive is only the eighth one to be issued by the Obama Administration.  At this point in the third year of the George W. Bush Administration, around 25 presidential directives (NSPDs) had been issued.  And in the Clinton Administration, there had been around 35 directives (PDDs).  So this Administration is using directives much more sparingly, for reasons that are hard to discern from a distance.

Court Hears Pre-Trial Motions in Thomas Drake Leak Case

A federal court heard pre-trial arguments last week in the case of former National Security Agency official Thomas A. Drake, who is charged with unlawful retention of NSA documents.  He allegedly relayed some of those documents to a Baltimore Sun reporter, who subsequently wrote stories about NSA waste and mismanagement.  At last week’s hearing (pdf), prosecutors and defense attorneys battled over the facts of the case, the scope of the charges, the constitutionality of the Espionage Act statutes, the nature of the evidence that may be presented at trial, and other matters.

In the end, each side got a favorable ruling on the “must win” issues it needed in order to have a chance of success at the actual trial, which is scheduled for June.  Judge Richard D. Bennett of the Maryland District Court sided with prosecutors in affirming the constitutionality of both the Espionage Act and the Classified Information Procedures Act, and he declined to dismiss any of the multiple charges against Mr. Drake.  But he ruled for the defense in deciding that Mr. Drake could present evidence that he was acting as a whistleblower, and that he could also introduce newspaper articles from the Baltimore Sun reflecting his input.

The arguments themselves were at least as interesting as the resulting decisions, and they recapitulated many longstanding disagreements about using the espionage statutes to prosecute leaks.  “Both sides have presented excellent legal briefings…, and the quality of the legal argument is obvious for all to see,” said Judge Bennett.

The court rejected defense motions arguing that the espionage statutes were unconstitutionally vague or overbroad, and also refused to dismiss five counts against Mr. Drake charging him with unlawful retention of information protected by the Espionage Act.

But crucially for the defense, the court ruled that “the fact that your client was acting as a whistleblower” could be introduced at trial because it relates to the question of the defendant’s “intent.”  To gain a conviction, prosecutors must prove that the defendant acted with specific intent to violate the law. (The court also admitted an amicus brief [pdf] prepared by the Government Accountability Project which argued that Mr. Drake’s whistleblower role was entitled to First Amendment protection.)

And the court granted a defense motion to introduce certain newspaper articles, over prosecution objections.  “We need to be able to the show the jury that none of the classified information that the Government alleges they found in our client’s home is in the articles,” defense attorney James Wyda said.

However, Judge Bennett indicated that former Baltimore Sun reporter Siobhan Gorman, who wrote the news stories involving information she allegedly obtained from Mr. Drake, would not be called to testify.  “We’re not going down the path of having reporters called to the witness stand, because, you know, I’m not inclined to incarcerate a reporter who asserts a privilege,” the judge said.  “That’s the last thing we need right now…. To the extent that we even think about calling a reporter to the witness stand, I think we’re really going down a deep, dark hole here in terms of how this case would proceed and assertions of privilege and everything else.”

Prosecutors defended their proposal to employ the so-called “silent witness” rule, by which some evidence would be presented to a jury but not revealed in open court.  That would be tantamount to closing the trial, objected defense attorney Deborah L. Boardman, and would place the defense at a significant disadvantage.  “It is fraught with constitutional peril,” she said, “and the practical problems associated with it are incalculable.”  The court deferred a ruling on that question.

A copy of the transcript of the March 31 hearing on pre-trial motions in USA v. Thomas Drake was obtained by Secrecy News.

Before Mr. Drake’s trial begins, the court must hear arguments and issue rulings on the classified information (or agreed-upon substitutes for it) that may be introduced at trial under the provisions of the Classified Information Procedures Act.  The Congressional Research Service recently prepared an overview of that statute.  See “Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act” (pdf), March 31, 2011.

Next week, Mr. Drake will be awarded the “Ridenhour Prize for Truth-Telling” from the Nation Institute and the Fertel Foundation.

The Whistleblower Protection Enhancement Act (S.743), which would extend whistleblower protection to intelligence community employees, was introduced in the Senate yesterday.

In Search of “Unfettered Access” to CRS Reports

Members of the public enjoy unrestricted access to all reports of the Congressional Research Service, according to the Librarian of Congress, Dr. James H. Billington.

“Though CRS has no direct public mission, at present the public has unfettered access to the full inventory of CRS Reports for the Congress at no cost through the office of any Member or committee,” he wrote in an April 4 letter (pdf) to Amy Bennett of

Unfortunately, that assertion is quite wrong.  The public does not have access to the full inventory of CRS Reports. There is not even a public index of CRS reports that would enable people to request specific reports by title.

No Member of Congress or committee permits unfettered public access to all CRS Reports, which are produced and updated at a rate of perhaps a dozen a day, although individual reports will often be released upon specific request.  (Some CRS Reports are prepared confidentially for individual Members and those are not available to others under any circumstances, except when the Member chooses to release them.)

Still, Dr. Billington’s mistaken belief that the public already has “unfettered access” to the entire CRS database is a hopeful sign, because it tends to confirm that providing such access to non-confidential CRS Reports is a sensible and achievable goal.  Indeed, otherwise well-informed people like the Librarian of Congress assume that it must already be true.

Postponed: I will be participating in a panel discussion on “The Future of CRS” on Monday, April 11, sponsored by the Sunlight Foundation’s Advisory Committee on Transparency, which will address the issue of public access to CRS products and related issues. Update: This event has been postponed.

Military Justice, State Secrets, 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).

“Military Justice: Courts-Martial, An Overview,” March 31, 2011.

“The State Secrets Privilege: Preventing the Disclosure of Sensitive National Security Information During Civil Litigation,” March 28, 2011.

“Rare Earth Elements in National Defense:  Background, Oversight Issues, and Options for Congress,” March 31, 2011.

“Government Shutdown: Operations of the Department of Defense During a Lapse in Appropriations,” April 1, 2011.

New Leak Penalties Proposed in Senate Intel Bill

The Senate Intelligence Committee is proposing to punish leaks of classified information by authorizing intelligence agencies to seize the pension benefits of current or former employees who are believed to have committed an unauthorized disclosure of classified information.

The pending proposal would “provide an additional administrative option for the Intelligence Community to deter leakers who violate the prepublication review requirements of their non-disclosure agreements,” the Committee said in its new report (pdf) on the FY2011 Intelligence Authorization Act.

“This option may require individuals to surrender their current and future federal government pension benefits if they knowingly violate the prepublication review requirements in their non-disclosure agreements in a manner that discloses classified information to an unauthorized person or entity,” the report said.

But the premises of the new proposal are questionable and it has generated some controversy even within the Senate Committee itself.

The starting point of the Committee proposal is that leakers are rarely if ever punished.  “A particular source of frustration has been that leakers are rarely seen to suffer consequences for leaking classified information.”  In fact, however, the number of ongoing leak-related prosecutions is currently at an all-time high.

Secondly, the Committee believes that existing administrative sanctions that stop short of criminal prosecution — including “security clearance revocation, suspension, or termination” — are inadequate and incomplete because they cannot reach persons who are no longer government employees.  “Unfortunately, these sanctions are not generally available for use against a key source of leaks, former Intelligence Community employees.”  But it is not at all clear, and the Committee does not attempt to demonstrate, that former Intelligence Community employees are “a key source of leaks.”  In practice, the government already has strong legal authority to enforce prepublication review requirements, and the CIA is currently engaged in suing at least one of its former employees (“Ishmael Jones”) for an alleged violation of those requirements.

Perhaps for those reasons and others, the Intelligence Community itself did not request the pension seizure authority that the Senate Intelligence Committee now proposes to bestow on it.

But the pending proposal may be worse than unnecessary, said Sen. Ron Wyden in a dissenting statement attached to the new Intelligence Committee report. He said it could discourage whistleblowers and impede congressional access to information.

“My concern is that giving intelligence agency heads the authority to take away the pensions of individuals who haven’t been formally convicted of any wrongdoing could pose serious problems for the due process rights of intelligence professionals, and particularly the rights of whistleblowers who report waste, fraud and abuse to Congress or Inspectors General,” Sen. Wyden wrote.

“It is unfortunately entirely plausible to me that a given intelligence agency could conclude that a written submission to the congressional intelligence committees or an agency Inspector General is an ‘unauthorized publication,’ and that the whistleblower who submitted it is thereby subject to punishment under [this provision], especially since there is no explicit language in the bill that contradicts this conclusion.”

“Withholding pension benefits from a legitimate whistleblower would be highly inappropriate, but overzealous and even unscrupulous individuals have served in senior government positions in the past, and will undoubtedly do so again in the future. This is why it is essential to have strong protections for whistleblowers enshrined in law, and this is particularly true for intelligence whistleblowers, since, given the covert nature of intelligence operations and activities, there are limited opportunities for public oversight. But reporting fraud and abuse by one’s own colleagues takes courage, and no whistleblowers will come forward if they do not believe that they will be protected from retaliation,” wrote Sen. Wyden, who voted against the pending bill (pdf).

Another provision of the bill calls for establishment of “an effective automated insider threat detection program for the information resources in each element of the Intelligence Community in order to detect unauthorized access to, or use or transmission of, classified information.”

Setting aside the specifics of the proposals, the underlying message from the Senate Committee is that agencies should do even more, not anything less or different, to combat leaks of classified information.  The Senate Committee was silent on other aspects of classification policy.  In particular, it had no guidance to offer concerning the halting efforts in the Intelligence Community to reduce overclassification.

Update: Senator Wyden said that he would object to any attempt to pass the FY2011 Intelligence Authorization bill by unanimous consent because of his opposition to the pension forfeiture provision.

CRS Views Decline of Central American Security

Violent instability in Central America poses a growing threat to the countries of the region, with direct and indirect consequences for the United States, according to a new report (pdf) from the Congressional Research Service.

“The seven nations of Central America face significant security challenges. Well-financed and heavily armed criminal threats, fragile political and judicial systems, and persistent social hardships such as poverty and unemployment contribute to widespread insecurity in the region. The United States has allocated $260 million in security assistance to support Central America since FY2008 under what is now known as the Central America Regional Security Initiative; however, security conditions have continued to deteriorate,” the CRS report said.

A copy of the report was obtained by Secrecy News.  See “Central America Regional Security Initiative: Background and Policy Issues for Congress,” March 30, 2011.

Other noteworthy new CRS reports include the following (all pdf).

“The Japanese Nuclear Incident: Technical Aspects,” March 31, 2011.

“Nuclear Power Plant Sites: Maps of Seismic Hazards and Population Centers,” March 29, 2011.

“Japan’s 2011 Earthquake and Tsunami: Economic Effects and Implications for the United States,” March 25, 2011.

“Funeral Protests: Selected Federal Laws and Constitutional Issues,” March 22, 2011.

“War in Afghanistan: Strategy, Military Operations, and Issues for Congress,” March 9, 2011.

The Tactical Challenges of Mountain Warfare

The challenges of conducting military operations in a mountainous environment are addressed in a new U.S. Army manual (pdf).

In the mountains, “small mistakes can lead to catastrophic events,” while “technological supremacy can be negated by even the most crude and non-technical enemy actions,” the new manual said.

Therefore, “Mountain combat calls for extreme physical fitness, mental toughness, endurance, and the utmost in tactical and technical proficiency on the part of all individuals.” With proper leadership and preparation, “the physical characteristics of mountains can support and enhance offensive operations.”

See Army Tactics Techniques Procedures (ATTP) 3-21.50, “Infantry Small-Unit Mountain Operations,” February 28, 2011.

British Submarines to Receive Upgraded US Nuclear Warhead

The Royal Navy plans to “integrate” the US W76-1/Mk4A warhead onto British SSBNs.

By Hans M. Kristensen

Sea-launched ballistic missiles on British ballistic missile submarines will be armed with the upgraded W76-1 nuclear warhead currently in production in the United States, according to a report from Sandia National Laboratories.

According to the Labs Accomplishments from March 2011, “the first W76-1 United Kingdom trials test was performed at WETL [Weapon Evaluation Test Laboratory], providing qualification data critical to the UK implementation of the W76-1.”

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