FAS Roundup- January 30, 2012

FAS Roundup: January 30, 2012


New developments in radiation treatment and diagnosis, no cuts in nuclear forces in defense budget, domestic use of drones, new leak case against CIA officer and much more.

From the Blogs

  • Domestic Use of Drones is Well Underway: The use of unmanned aerial systems (UAS) within the United States is certain to increase in the years to come, as a new Army policy has recently made clear. But, the use of unmanned aircraft or drones within U.S. airspace has already advanced to a degree that is not widely recognized.
  • Budget Blunder: “No Cuts” in Nuclear Forces: “There are no cuts made in the nuclear force in this budget.” That clear statement was made on January 26, 2012 by deputy defense secretary Ashton Carter during the Pentagon’s briefing on the defense budget request for Fiscal Year 2013. Hans Kristensen writes that this statement is disappointing for anyone who had hopes that the administration’s promises about “concrete steps” to reduce the number and role of nuclear weapons and to “put an end to Cold War thinking” would actually be reflected in the new defense budget.
  • A Small Death in Tehran: The recent death of Mostafa Ahmadi Roshan, the 32 year-old deputy director of one of Iran’s uranium enrichment facilities, brings the total of assassinations to five among what was a small group of people to begin with. There are two aspects to this act – the morality of such assassinations and their efficacy, which Dr. Y examines on the ScienceWonk blog.
  • New Leak Case Relies on 1982 Law on Intelligence Identities: Former CIA officer John Kiriakou became the latest person to be charged under the Espionage Act with unauthorized disclosures of classified information. But unlike the previous defendants, Mr. Kiriakou was also charged with violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert intelligence officer to a journalist. Steven Aftergood analyzes the history of this Act and the case against Mr. Kiriakou.
  • New Doctrine on Intelligence Support to Military Operations:  Secrecy News has obtained an updated doctrine produced by the Joint Chiefs of Staff on intelligence support to military operations.  The new doctrine reflects changes in intelligence organizations, roles and missions.
  • New Developments in Radiation Diagnosis and Treatment: For the last several years the threat of nuclear and radiological terrorism has given us all a good scare and one of our responses has been to throw a lot of money into improving our ability to respond medically to such an attack. Dr. Y writes about a few strategies for diagnosis and treatment.
  • DoD Support to Foreign Disaster Relief:  Secrecy News has obtained a new guide prepared by the Department of Defense for military personnel who are engaged in foreign disaster relief operations, an endeavor which arises with some frequency.
  • Court Says Review of Security Clearance Dispute is “Prohibited”: A government agency’s decision to revoke an employee’s security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week.

Continue reading

Agencies are Likely to Miss 2013 Declassification Deadline

More than two years ago, President Obama set a December 31, 2013 deadline for completing the declassification processing of a backlog of more than 400 million pages of classified historical records that were over 25 years old.  But judging from the limited progress to date, it now seems highly unlikely that the President’s directive will be fulfilled.

As of December 2011, following two years of operation, the National Declassification Center had completed the processing of only 26.6 million pages of the 400 million page backlog, according to the latest NDC semi-annual report.  If the Center increased productivity by a factor of ten, that would still be insufficient to achieve its goal.

The looming failure to comply with an explicit presidential order is a sign of the growing autonomy of the secrecy system, which to a surprising extent is literally out of control.

One of the obstacles to a more efficient declassification process is a 1999 statute known as the “Kyl-Lott” Amendment, which requires record collections to be certified as “highly unlikely” to contain classified nuclear weapons information known as Restricted Data or Formerly Restricted Data.  In many cases, today’s backlogged records were not certified as required by the originating agencies and therefore they must now undergo an additional review.

“This unexpected review step will certainly impact our ability to complete all declassification processing by the deadline,” according to the new semi-annual report from the National Declassification Center.

The need for interagency cooperation to deal with the backlog of historical records awaiting declassification was anticipated by President Obama.  “The Secretaries of State, Defense, and Energy, and the Director of National Intelligence shall provide the Archivist of the United States with sufficient guidance to complete this task,” he wrote in a December 29, 2009 memo.

And in fact, agencies have devoted increased efforts to declassification.  “Once the enormity of the Kyl-Lott challenge was realized, many participating agencies have stepped up to ensure that their records meet this requirement,” according to NDC Director Sheryl J. Shenberger.

But under current procedures, it is hard to see any trajectory that will lead to elimination of the declassification backlog by December 2013.

One alternative way to proceed would be for the National Archives to seek legislative relief from the certification requirements of the Kyl-Lott Amendment, particularly with respect to so-called Formerly Restricted Data (FRD).  Most of the historical nuclear weapons information in the FRD category is of no special sensitivity and its presence should no longer pose an obstacle to expedited declassification.  In those cases where the information is sensitive, such as weapons design information, the Department of Energy is currently seeking authority to remove it from the FRD category and to redesignate it as Restricted Data.  This would further strengthen the case for amending Kyl-Lott to eliminate screening for FRD, thereby simplifying the declassification problem.

U.S. Investment in the Middle East, and More from CRS

The possibility of increasing U.S. investment in the Middle East as a way to encourage democratic political transitions was examined in a new report from the Congressional Research Service.  See U.S. Trade and Investment in the Middle East and North Africa: Overview and Issues, January 20, 2012.

Other new or updated CRS reports that have not been made readily available to the public include these:

Australia: Background and U.S. Relations, January 13, 2012

European Union Enlargement, January 26, 2012

Budget Blunder: “No Cuts” in Nuclear Forces

The new defense budget has
“no cuts” in nuclear forces.

.
By Hans M. Kristensen

“There are no cuts made in the nuclear force in this budget.” That clear statement was made yesterday by deputy defense secretary Ashton Carter during the Pentagon’s briefing on the defense budget request for Fiscal Year 2013.

We’ll have to see what’s hidden in the budget documents once they are released next month, but the statement is disappointing for anyone who had hopes that the administration’s promises about “concrete steps” to reduce the number and role of nuclear weapons and to “put an end to Cold War thinking” would actually be reflected in the new defense budget.

Not so for the FY13 budget. Other than a decision to delay work for two years on the next generation ballistic missile submarine, the Defense Budget Priorities and Choices report released yesterday does not list any nuclear reductions; neither previously announced nor new ones. Continue reading

New Leak Case Relies on 1982 Law on Intelligence Identities

Updated below

Former CIA officer John Kiriakou this week became the latest person to be charged under the Espionage Act with unauthorized disclosures of classified information.  But unlike the previous defendants, Mr. Kiriakou was also charged with violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert intelligence officer to a journalist.

The Intelligence Identities Protection Act was enacted in 1982 to combat the efforts of Philip Agee and his colleagues to expose CIA personnel around the world.  The Act made it a felony to reveal the names of “covert agents,” i.e. intelligence officers who are under cover and whose identities are classified information.

But until now, the Act has never been used in a contested prosecution.  “There do not appear to be any published cases involving prosecutions under this act, despite some high-profile incidents involving the exposure of U.S. intelligence agents,” according to a Congressional Research Service report on the subject from last year.

(There has, however, been one conviction under the Act.  In 1985, former CIA clerk Sharon Scranage pleaded guilty to providing classified information in violation of the Act concerning U.S. intelligence operations in Ghana.  She served two years in jail.)

The Intelligence Identities Protection Act is one of the very few classification-related statutes that purport to apply to anyone, not only to government officials who possess authorized access to classified information.  The language of the Act explicitly indicates that it also applies to private individuals — reporters, researchers, or anyone else — who expose covert agents, if they do so as part of a “pattern of activities” and with the requisite knowledge and intent.

In the present case, Mr. Kiriakou is charged with providing the name of a “covert agent” in response to inquiries from a reporter, “Journalist A,” who then passed that information on to defense attorneys at Guantanamo.  (The attorneys used the information in a classified pleading that they filed in 2009, which is what first brought the unauthorized disclosure to official attention.)

An FBI affidavit attached to the criminal complaint against Kiriakou states repeatedly that no laws were broken by the defense team that received the classified information.  The FBI notably does not volunteer the same assurance concerning Journalist A (whose name is not yet on the public record), who actively solicited the proscribed information from Kiriakou and forwarded it to the defense attorneys.

But Journalist A would presumably not be subject to the Intelligence Identities Protection Act because his efforts were not part of a systematic effort to expose classified identities. (The name of the covert agent that he allegedly elicited and conveyed to the defense team at Guantanamo has not been publicly disclosed.)

According to the Congressional Research Service report, the Act “would appear to preclude the prosecution of a recipient of covered information, whether solicited or not, who publishes the information but has not engaged in a prohibited ‘pattern of activities’ intended to disclose the names of covert agents.”

The CRS report also makes the curious observation that “It is not an offense for… a covert agent to disclose his or her own identity.”  See Intelligence Identities Protection Act, January 28, 2011.

Mr. Kiriakou is the sixth individual to be charged in the Obama Administration’s unprecedented campaign against leaks of classified information to the media, following Shamai Leibowitz, Jeffrey Sterling, Thomas Drake, Bradley Manning and Stephen Kim.  Among other things, the Administration’s aggressive pursuit of leaks represents a challenge to the practice of national security reporting, which depends on the availability of unauthorized sources if it is to produce something more than “authorized” news.

Update: The Intelligence Identities Protection Act was criticized in a April 6, 1982 op-ed by then-Senator Joseph Biden entitled “A Spy Law That Harms National Security.” (h/t Historiographic Anarchy)

Domestic Use of Drones is Well Underway

The use of unmanned aerial systems (UAS) within the United States is certain to increase in the years to come, as a new Army policy has recently made clear.  (“Army Foresees Expanded Use of Drones in U.S. Airspace,” Secrecy News, January 19.)  But in fact the use of unmanned aircraft or drones within U.S. airspace has already advanced to a degree that is not widely recognized.

As of 2010, the Federal Aviation Administration had already issued hundreds of “certificates of authorization” (COAs) for the domestic use of drones.

“Right now, today as we sit here, we have 251 certificates of authorization for unmanned aircraft, 140 of them are DOD related,” said Hank Krakowski of the FAA at an informative Senate hearing in September 2010.  “We have not rejected or denied any DOD COAs in 2010, and we keep moving forward.”

On the other hand, Mr. Krakowski cautioned, “While UASs offer a promising new technology, the limited safety and operational data available to date does not yet support expedited or full integration into the NAS [National Airspace System]. Because current available data is insufficient to allow unfettered integration of UASs into the NAS–where the public travels every day– the FAA must continue to move forward deliberately and cautiously, in accordance with our safety mandate.”

“Unmanned aircraft systems [were] originally and primarily designed for military purposes,” he noted. “Although the technology incorporated into UASs has advanced, their safety record warrants caution. As we attempt to integrate these aircraft into the NAS, we will continue to look at any risks that UASs pose to the traveling public as well as the risk to persons or property on the ground.”

See “The Integration of Unmanned Aircraft Systems (UASs) Into the National Airspace System (NAS): Fulfilling Imminent Operational and Training Requirements,” Senate Committee on Commerce, Science and Technology, September 13, 2010 (published September 2011).

In the 2012 National Defense Authorization Act, Congress included language requiring a report on “the integration of unmanned aerial systems into the national airspace system” (h/t Emptywheel).

The legality of the use of drones in CIA targeted killing programs is among the topics that is explored in the brand new issue of the Journal of National Security Law and Policy on the subject of covert war.

Presidential Signing Statements, and More from CRS

President Obama has used “signing statements” to take exception to provisions of law enacted by Congress with significantly less frequency than did President George W. Bush.  He has also abandoned reference to the “unitary executive” concept that was favored by the Bush Administration.

In most other respects, however, the Obama Administration’s use of signing statements is consistent and continuous with recent past practice, according to a newly updated report from the Congressional Research Service.  The report reviewed the basis for signing statements, their legal implications, and the controversy that has surrounded them.  See Presidential Signing Statements: Constitutional and Institutional Implications, January 4, 2012.

Some other new or newly updated CRS reports that have not been made readily available to the public include the following (all pdf).

Legal Issues Associated with the Proposed Keystone XL Pipeline, January 23, 2012

“Who is a Veteran?” — Basic Eligibility for Veterans’ Benefits, January 23, 2012

Federal Aid to Roads and Highways Since the 18th Century: A Legislative History, January 6, 2012

Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress, January 6, 2012

Iran Sanctions, January 6, 2012

FAS Roundup- January 23, 2012

FAS Roundup: January 23, 2012


India’s rejection of nuclear weapons for warfighting, future of nuclear power, reclassificiation of nuclear weapons information  and much more.

 

From the Blogs

  • Dept of Energy Wants to Reclassify Some Info as “Restricted Data”:  Steven Aftergood writes that the Department of Energy has asked Congress to amend the Atomic Energy Act to allow certain nuclear weapons information that has been removed from the “Restricted Data” classification category to be restored to that category. In a letter to Congress requesting the proposed amendment, Energy Secretary Steven Chu suggested that the current arrangement leaves some nuclear weapons design information inadequately protected.
  • Indian Army Chief- Nukes Not for Warfighting:  On January 15, 2012, General V.K Singh said that India’s nuclear weapons “are not for warfighting.” Hans Kristensen writes that the rejection of nuclear warfighting ideas is a welcoming development in the debate over the role of nuclear weapons in South Asia.
  • Whither Nuclear Power?: In the aftermath of the Fukushima accident, Germany and Switzerland have put a halt to their nuclear power programs, America’s nuclear renaissance has slowed, and Japan is trying to figure out how to substitute alternative energy sources for nuclear power.  Dr. Y writes on the ScienceWonk Blog that it is understandable that the world might feel an aversion to nuclear power at the moment, but it is no more dangerous than any other form of energy.
  • Army Foresees Expanded Use of Drones in U.S. Airspace: The Army issued a new directive last week to govern the growing use of unmanned aircraft systems or “drones” within the United States for training missions and for “domestic operations.” Much of the Army’s UAS activity will be devoted to UAS operator training conducted at or near military facilities. But beyond such training activities, the military also envisions a role for UAS in unspecified “domestic operations” in civilian airspace.
  • Radioactive Tissues?: On January 12, 2012, Bed, Bath, & Beyond announced that it had received a shipment of steel tissue holders (manufactured in India) that were contaminated with radioactive cobalt-60. Dr. Y agrees that the tissue boxes are radioactive, but the question is whether or not they are sufficiently radioactive to cause health problems.
  • Testimony of Reporter Sought in Sterling Leak Case: In a brief filed in the case against former CIA officer Jeffrey Sterling (who is accused of leaking classified information), prosecutors told the U.S. Court of Appeals that New York Times reporter James Risen should be compelled to testify at Mr. Sterling’s trial and to reveal whether it was Mr. Sterling who leaked information to him about a CIA program to disrupt Iran’s nuclear weapons program.

Continue reading

Court Says Review of Security Clearance Dispute is “Prohibited”

A government agency’s decision to revoke an employee’s security clearance cannot be reviewed by a federal court even if the decision is based on ethnic discrimination or religious prejudice or other unconstitutional grounds, a court said last week.

Judge James C. Cacheris of the Eastern District of Virginia dismissed a lawsuit brought by Mahmoud M. Hegab, a budget analyst at the National Geospatial-Intelligence Agency (NGA).  Mr. Hegab alleged that his security clearance had been revoked by NGA “based solely on [his] wife’s religion, Islam, her constitutionally protected speech, and her association with, and employment by, an Islamic faith-based organization.”  (“Clearance Lost Due to Anti-Islamic Prejudice, Lawsuit Says,” Secrecy News, October 6, 2011.)

The NGA disputed the claim and moved to dismiss the lawsuit.  Mr. Hegab, represented by attorney Sheldon I. Cohen, responded in opposition on December 14.

But in his January 19 opinion, Judge Cacheris said that it didn’t matter even if the plaintiff’s allegations were true, because the court lacked the authority to review the underlying bases of the dispute.

“A determination of whether Hegab’s security clearance was revoked due to legitimate national security concerns or, as Hegab alleges, constitutionally impermissible bases would necessarily require a review of the merits of NGA’s decision. Absent clear congressional directive, which Hegab fails to identify, such a review is flatly prohibited by Egan and Fourth Circuit precedent,” Judge Cacheris wrote.

Egan” here refers to the 1988 U.S. Supreme Court decision in the case of Department of the Navy v. Egan, which has often been invoked in support of broad and unreviewable executive branch authority in national security policy.  A critique of Egan and its subsequent application was presented by constitutional scholar Louis Fisher, then of the Law Library of Congress, in “Judicial Interpretations of Egan,” November 13, 2009.