Some New Wrinkles in Nuclear Weapons Secrecy

A newly released intelligence guide to document classification markings explains the meaning and proper use of control markings to designate classified information.  See “Authorized Classification and Control Markings Register” (pdf), CAPCO, Volume 4, Edition 2, May 31, 2011.  (See also the associated Implementation Manual of the same date.)

This material is very detailed, comprehensive and quite informative, with only a few redacted passages pertaining to some code word usages.

But though it is only three months old, it is already out of date due to the constant churning within the classification system that regularly generates new marking requirements and cancels old, familiar ones.  This has been particularly true lately with respect to changes in markings for “Restricted Data,” or classified nuclear weapons information.

Thus, the intelligence guide to classification marking refers to the so-called “Sigma” system for marking Restricted Data.  Each Sigma level refers to a particular aspect of nuclear weapons design.  According to the intelligence community guide, the Sigma system extends from Sigma 1 to Sigma 15 and also Sigma 20.  But that is no longer accurate.

In a July 2011 order (pdf), the Department of Energy determined that Sigma levels 1 through 5 and 9 through 13 are now obsolete.  So they have been disestablished.  Meanwhile, a new Sigma category, Sigma 18, has been created to address “Control of Complete Designs” and to protect “past and present U.S. nuclear weapons, nuclear devices and weapon designs.”  See “Control of Nuclear Weapon Data,” DoE Order 452.8, July 21, 2011.

At this late date in the nuclear era, there are still other “innovations” in nuclear technology and nuclear secrecy.  The New York Times reported last weekend on an apparent breakthrough in the use of lasers to enrich uranium.  This laser enrichment process, known as SILEX (Separation of Isotopes by Laser Excitation), also poses new proliferation issues.  See “Laser Advances in Nuclear Fuel Stir Terror Fear” by William J. Broad, August 21.

Though the Times story did not mention it, the SILEX process is also a unique case in which information that was privately generated was nevertheless classified by the government.  As far as could be determined, the decision to classify this non-governmental information under the Atomic Energy Act is the first and only time that such authority has been exercised.  [Update, August 25: This is not correct. See A Correction on Nuclear Secrecy.] See this 2001 “Record of Decision to Classify Certain Elements of the SILEX Process as Privately Generated Restricted Data.”  (See also “A Glimpse of the SILEX Uranium Enrichment Process,” Secrecy News, August 22, 2007.)

For its part, the Department of Defense issued a new Instruction last week on “Disclosure of Atomic Information to Foreign Governments and Regional Defense Organizations” (DoDI 5030.14, August 17, 2011).

Sterling Defense Argues Against Secret Evidence

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information, should not be permitted to present their evidence at trial in modified or redacted form and should also not be able to employ other extraordinary security measures, defense attorneys argued in an August 19 pleading (pdf).

Specifically, the defense team said that prosecutors should not be allowed to use the provisions of the Classified Information Procedures Act (CIPA) to introduce unclassified substitutions for classified evidence that they wish to present.

The purpose of CIPA, the defense said, is to allow the defendant to present exculpatory classified evidence in an unclassified form while preventing “graymail,” i.e. the threat to disclose classified information as a tactic for evading prosecution.

But CIPA does not entitle prosecutors to introduce their own classified evidence in redacted form, the defense argued, particularly since “the Government… cannot ‘graymail’ itself.”  Instead, the prosecution “must either declassify information it wishes to use in its case-in-chief or forego using that information.”

“What CIPA does not provide is the ability of the Government to prosecute a defendant using substitute or redacted evidence against him in its case-in-chief,” the defense said.

The Sterling defense also objected to the prosecutors’ proposed use of the “silent witness” rule, by which classified information is shared with the jury but not disclosed in open court.

The silent witness rule is fundamentally unfair, is not authorized by law, is possibly unconstitutional, and should not be approved by the court, the defense said.  (The proposal to invoke the silent witness rule was first reported by Josh Gerstein in Politico on August 10.)

“It will be impossible effectively to contest and challenge the Government’s evidence before a jury if the Court permits use of the silent witness rule, which would impermissibly provide the stamp of secrecy and national security importance to information that the Government has elected to disclose in a criminal trial where those very issues are contested.  The Court must decline this invitation to conduct an unfair and constitutionally impermissible trial,” the defense said.

For similar reasons, the defense also objected to the proposed use of security measures such as initials and screens to conceal the identities of government witnesses.

“The Department of Justice, surely after consultations with the CIA, approved this prosecution,” the defense pleading said.  “In doing so, it should have expected an open and public trial that featured all of the Constitutional protections afforded a defendant in the United States.”

Navy: Excessive Security Can Degrade Effectiveness

There can be such a thing as too much security, the Navy said in a new Instruction on “Operations Security” (pdf) or OPSEC.

OPSEC refers to the control of unclassified indicators that an adversary could use to derive “critical information” (CI) concerning military or intelligence programs.

“Properly applied, OPSEC contributes directly to operational effectiveness by withholding CI from an adversary, thereby forcing an adversary’s decisions to be based on information friendly forces choose to release,” the new Navy Instruction said. “Inadequate OPSEC planning or poor execution degrades operational effectiveness by hindering the achievement of surprise.”

But even if adequately planned and executed, not all OPSEC is necessary or useful;  sometimes it is actually counterproductive.

“Excessive OPSEC countermeasures… can degrade operational effectiveness by interfering with the required activities such as coordination, training and logistical support,” the Instruction said.  See “Operations Security,” OPNAV Instruction 3432.1A, 4 August 2011.

Unfortunately, the Instruction does not and perhaps cannot provide criteria for distinguishing between proper OPSEC and excessive OPSEC.  Instead, it directs commanders and program managers to “evaluate” each operation and draw the appropriate conclusions.  What if the program manager is shortsighted or simply makes a mistake?  What if OPSEC is justified from a security perspective, but also undermines government accountability or public confidence in government integrity?  The Instruction has nothing to say about that.

Because of the subjective element in such decisions, the use of OPSEC (like the application of national security classification controls) is often arbitrary and disputed.

After 30 U.S. servicemen, including 17 Navy SEALs, were killed in Afghanistan on August 6 when their helicopter was shot down, U.S. Special Operations Command asked that the names of the SEALs not be disclosed for security reasons.  Secretary of Defense Leon Panetta rejected that view and the names were released by the Pentagon yesterday.

But in a questionable nod to OPSEC, the name of the unit to which the SEALs were attached — the Naval Special Warfare Development Group (DEVGRU) — was not cited by the Pentagon, Bloomberg News reported.  Instead, the DoD press release referred only to “an East Coast-based Naval Special Warfare unit.”  Yet the Navy itself has previously acknowledged and referred by name to the same SEAL unit.  See “Pentagon Releases Identities of SEALs Killed, Not Unit Name” by Tony Capaccio, Bloomberg News, August 11.

Information Sharing Still a Work in Progress

While information sharing among government agencies has increased dramatically over the past decade, it still falls short in some areas.

Due to “impediments to intelligence information sharing between U.S. forces and coalition partners,” information sharing with U.S. allies in Afghanistan has faltered to the detriment of the military mission, the Inspector General of the Department of Defense said in a mostly classified report last month.

Continuing impediments have “resulted in information not being tactically useful by the time it is authorized for release,” the Inspector General said.  See “Results in Brief: Improvements Needed in Sharing Tactical Intelligence with the International Security Assistance Force Afghanistan,” excerpted from DoD Inspector General Report 11-INTEL-13, July 18, 2011.

The 2011 Annual Report on the DNI Information Sharing Environment (pdf) said that “steady progress has been made” in information sharing, especially with respect to homeland security and law enforcement.

Among other things, the Report noted that the intelligence community intranet called Intelink “recently crossed the 100 million document threshold for records exposed to Intelink search services…. In one month alone this year, Intelink recorded over two million searches.”  Such datapoints “highlight the ability of IC personnel to acess more information quicker and more effectively, enabling them to better share information and thus perform their missions,” the Report said.

Another recent report from the Government Accountability Office said the Information Sharing Environment still had not identified its desired “end state.”  Six years after it was created, “there is not a clear definition of what the ISE is intended to achieve and include.”  See “Information Sharing Environment: Better Road Map Needed to Guide Implementation and Investments” (pdf), Government Accountability Office report GAO-11-455, July 2011.

It should be understood that “information sharing” is quite different from “information disclosure,” and the two practices are usually at odds.  In fact, the prerequisite for most so-called information sharing is an official assurance that the information to be shared will not be disclosed to unauthorized persons such as members of the general public.

Executive Order Responding to WikiLeaks Due Shortly

The Obama Administration is putting the finishing touches on a new executive order that is intended to improve the security of classified information in government computer networks as part of the government’s response to WikiLeaks.

The order is supposed to reduce the feasibility and the likelihood of the sort of unauthorized releases of classified U.S. government information that have been published by WikiLeaks in the past year.

According to an official who has reviewed recent drafts, the order addresses gaps in policy for information systems security, including characterization and detection of the insider threat to information security.  It does not define new security standards, nor does it impose the security practices of intelligence agencies on other agencies.  (“It doesn’t say, ‘go polygraph everybody’,” the official said.)

Rather, the order establishes new mechanisms for “governance” and continuing development of security policies for information systems.  Among other things, it builds upon the framework established — but not fully implemented — by the 1990 National Security Directive 42 (pdf), the official said.

The order, developed on a relatively fast track over the past nine months, has already gone through two rounds of interagency coordination and is expected to be issued within a matter of weeks.

Rewriting US Presidential Nuclear War Planning Guidance

How will Obama reduce the role of nuclear weapons in the strategic war plan?

By Hans M. Kristensen

The Obama administration has begun a review of the president’s guidance to the military for how they should plan for the use of nuclear weapons. The review, which was first described in public by National Security Advisor Tom Donilon, is the ultimate test of President Obama’s nuclear policy; the rest is just words: to what extent will the new guidance reduce the role of nuclear weapons in the war plan?

Although the administration’s Nuclear Posture Review is widely said to reduce the role of nuclear weapons, it doesn’t actually reduce the role that nuclear weapons have today because all the adversaries in the current strategic nuclear war plan are exempt from the reduction. They are either nuclear weapon states, not members of the nuclear Non-Proliferation Treaty, or are in violation of their NPT obligations and have chemical or biological weapons. The new guidance would have to remove some of these adversaries from the war plan to reduce the role, or reduce the role that nuclear weapons are required to play against each of them. There are many ways this could be done:

  • Reduce the numer of target categories that are held at risk with nuclear weapons.
  • Reduce the damage expectancy to be a achieved against individual targets.
  • Reduce the number of adversaries in the plan.
  • Reduce the number and types of strike options against each adversary.
  • Remove the requirement to plan for prompt launch of nuclear forces.
  • Remove any requirement to plan for damage limitation strikes.
  • End counterforce nuclear planning.
  • End the requirement to maintain standing fully operational strike plans.

Reducing the role of nuclear weapons in the war plan requires direct and continuous presidential attention to avoid that the commitments to reducing the number and role of nuclear weapons are watered down by bureaucrats and cold warriors in the National Security Council, Department of Defense, military commands and Services, as well as former officials who are busy lobbying against a reduction.

To support president Obama’s vision of dramatically reduced nuclear arsenals and a reduced role of nuclear weapons on the way to deep cuts of nuclear weapons and eventually disarmament, we published a study in 2009 that proposed a transition from counterforce planning to what we called a minimal deterrent. A study from 2010 further described the current strategic nuclear war plan (OPLAN 8010-08 Change 1 from February 1, 2009 – this plan is still in effect). Building on those two studies, we have a new op-ed in the Bulletin of the Atomic Scientists that describes what a new presidential directive could look like: A Presidential Policy Directive for a new nuclear path.

This publication was made possible by a grant from Carnegie Corporation of New York and Ploughshares Fund. The statements made and views expressed are solely the responsibility of the author.

Offensive Cyber Tools to Get Legal Review, Air Force Says

Even the most highly classified offensive cyberwar capabilities that are acquired by the Air Force for use against enemy computer systems will be subject to “a thorough and accurate legal review,” the U.S. Air Force said in a new policy directive (pdf).

The directive assigns the Judge Advocate General to “ensure all cyber capabilities being developed, bought, built, modified or otherwise acquired by the Air Force that are not within a Special Access Program are reviewed for legality under LOAC [Law of Armed Conflict], domestic law and international law prior to their acquisition for use in a conflict or other military operation.”

In the case of cyber weapons developed in tightly secured Special Access Programs, the review is to be performed by the Air Force General Counsel, the directive said.  See “Legal Reviews of Weapons and Cyber Capabilities,” Air Force Instruction 51-402, 27 July 2011.

The Air Force directive is somewhat more candid than most other official publications on the subject of offensive cyber warfare.

Thus, “for the purposes of this Instruction, an Air Force cyber capability requiring a legal review prior to employment is any device or software payload intended to disrupt, deny, degrade, negate, impair or destroy adversarial computer systems, data, activities or capabilities.”

On the other hand, cyber capabilities requiring legal review “do not include a device or software that is solely intended to provide access to an adversarial computer system for data exploitation,” the directive said.

One challenge facing such legal reviews is that law and policy in the relatively new field of cyberwar are not fully articulated.  Another challenge is that where applicable law and policy do exist, they may be inconsistent with the use of offensive cyber tools.

In response to a question (pdf) on cyberwarfare from the Senate Armed Services Committee at his confirmation hearing last year, Lt. Gen. Keith Alexander of U.S. Cyber Command said: “President Obama’s cybersecurity sixty-day study highlighted the mismatch between our technical capabilities to conduct operations and the governing laws and policies, and our civilian leadership is working hard to resolve the mismatch.” (page 9)

But he added: “Given current operations, there are sufficient law, policy, and authorities to govern DOD cyberspace operations. If confirmed, I will operate within applicable laws, policies, and authorities. I will also identify any gaps in doctrine, policy and law that may prevent national objectives from being fully realized or executed to the Commander, U.S. Strategic Command and the Secretary of Defense.”

Asked whether DoD possesses “significant capabilities to conduct military operations in cyberspace,” Gen. Alexander would only provide an answer on a classified basis.

The Pentagon does not often acknowledge the existence of offensive cyber capabilities.  The “Department of Defense Strategy for Operating in Cyberspace” (pdf) that was released in unclassified form last month does not address offensive cyber warfare at all.

Some CRS Reports on Economic Policy

New reports from the Congressional Research Service on topics of economic policy include the following (all pdf).

“Boosting U.S. Exports: Selected Issues for Congress,” July 21, 2011

“Economic Recovery: Sustaining U.S. Economic Growth in a Post-Crisis Economy,” July 18, 2011

“Inflation: Causes, Costs, and Current Status,” July 26, 2011

“Treasury Securities and the U.S. Sovereign Credit Default Swap Market,” July 25, 2011

“The Unemployment Trust Fund (UTF): State Insolvency and Federal Loans to States,” July 8, 2011

“Can Contractionary Fiscal Policy Be Expansionary?,” June 6, 2011

“When Secrecy Gets Out of Hand”

The government’s relentless pursuit of people suspected of mishandling or leaking classified information underscores the need to combat the misuse of classification authority, wrote J. William Leonard, the former director of the Information Security Oversight Office (ISOO), in an op-ed in the Los Angeles Times today.

“The Obama administration, which has criminally prosecuted more leakers of purportedly classified information than all previous administrations combined, needs to stop and assess the way the government classifies information in the first place.”

“Classifying information that should not be kept secret can be just as harmful to the national interest as unauthorized disclosures of appropriately classified information,” he wrote.  See “When Secrecy Gets Out of Hand” by J. William Leonard, Los Angeles Times, August 10.

Mr. Leonard recently filed a complaint with the new ISOO director, John Fitzpatrick, based on his assessment that a document that served as a basis for criminal prosecution in the case of Thomas Drake should never have been classified at all.