FAS Roundup: April 30, 2012

Investigation into leak prosecutions, nuclear forensics, new CRS reports and much more.

 

From the Blogs

  • Senate Review of CIA Interrogation Program “Nearing Completion”: The Senate Intelligence Committee has been reviewing the post-9/11 detention and interrogation practices of the Central Intelligence Agency for four years and is still not finished.  But the end appears to be in sight. Committee staff are said to have reviewed millions of pages of classified documents pertaining to the CIA program.
  • Govt Appeals Court-Ordered Release of Classified Document: On April 29,  government attorneys said that they would appeal an extraordinary judicial ruling that required the release of a classified document in response to a Freedom of Information Act request. The document in question is a one-page position paper produced by the U.S. Trade Representative (USTR) concerning the U.S. negotiating position in free trade negotiations.  It was classified Confidential and was not supposed to be disclosed before 2013.
  • Nuclear Forensics: A terrorist attack using an improvised nuclear device would be hugely destructive. During the Cold War, nuclear weapons had a ‘return address’ since the U.S. could trace the trajectory back to the point of origin. Dr. Y investigates the background of nuclear forensics in a new post on the ScienceWonk Blog.
  • Patent Office Weighs Patent Secrecy for “Economic Security”: Steven Aftergood writes that in response to congressional direction, the U.S. Patent and Trademark Office is considering whether to expand the scope of patent secrecy orders — which prohibit the publication of affected patent applications — in order to enhance “economic security” and to protect newly developed inventions against exploitation by foreign competitors. Currently, patent secrecy orders are applied only to patent applications whose disclosure could be “detrimental to national security” as prescribed by the Invention Secrecy Act of 1951.

Continue reading

Cybersecurity: A Bibliography, and More from CRS

New and updated Congressional Research Service reports that Congress has withheld from direct public access include the following.

Cybersecurity: Authoritative Reports and Resources, April 26, 2012

The Budget Control Act of 2011: The Effects on Spending and the Budget Deficit When the Automatic Spending Cuts Are Implemented, April 23, 2012

Budget “Sequestration” and Selected Program Exemptions and Special Rules, April 27, 2012

U.S. Solar Photovoltaic Manufacturing: Industry Trends, Global Competition, Federal Support, April 27, 2012

Foreign Assistance to North Korea, April 26, 2012

Chile: Political and Economic Conditions and U.S. Relations, April 6, 2012

Canada-U.S. Relations, April 5, 2012

New Army Doctrine on “Information Collection”

An Army field manual published last week explains the Army’s conduct of information collection activities in military operations.

“In this manual, the term ‘information collection’ is introduced as the Army’s replacement for ‘intelligence, surveillance, and reconnaissance’ (also known as ISR),” the manual says.

“This publication clarifies how the Army plans, prepares, and executes information collection activities within or between echelons.”

“As the Army fields new formations and equipment with inherent and organic information collection capabilities, it needs a doctrinal foundation to ensure their proper integration and use to maximize their capabilities.”

See Information Collection, U.S. Army Field Manual (FM) 3-55, April 23, 2012.

Govt Appeals Court-Ordered Release of Classified Document

Government attorneys said yesterday that they would appeal an extraordinary judicial ruling that required the release of a classified document in response to a Freedom of Information Act request.

The document in question is a one-page position paper produced by the U.S. Trade Representative (USTR) concerning the U.S. negotiating position in free trade negotiations.  It was classified Confidential and was not supposed to be disclosed before 2013.

But immediate disclosure of the document could not plausibly cause damage to the national security, said DC District Judge Richard W. Roberts in a February 29, 2012 opinion, and so its continued classification, he said, is not “logical.”  He ordered the government to release the document to the Center for International Environmental Law, which had requested it under FOIA.  (Court Says Agency Classification Decision is Not ‘Logical’, Secrecy News, March 2, 2012.)

This kind of independent review of the validity of classification decisions, which is something that judges normally refrain from doing, offers one way to curb galloping overclassification.

While the substance of the USTR document is likely to be of little general interest, the court’s willingness to disregard the document’s ill-founded classification and to require its disclosure seems like a dream come true to critics of classification policy.  If the decision serves as a precedent and a spur to a more broadly skeptical judicial approach to classification matters, so much the better.

But what may be a dream to some is a nightmare to others.  The bare possibility of such an emerging challenge to executive classification authority was evidently intolerable to the Obama Administration, which will now seek to overturn Judge Roberts’ ruling in the DC Circuit Court of Appeals.

Patent Office Weighs Patent Secrecy for “Economic Security”

In response to congressional direction, the U.S. Patent and Trademark Office is considering whether to expand the scope of patent secrecy orders — which prohibit the publication of affected patent applications — in order to enhance “economic security” and to protect newly developed inventions against exploitation by foreign competitors.

Currently, patent secrecy orders are applied only to patent applications whose disclosure could be “detrimental to national security” as prescribed by the Invention Secrecy Act of 1951.  At the end of Fiscal Year 2011, there were 5,241 such national security secrecy orders in effect.

But now the Patent Office is weighing the possibility of expanding national security patent secrecy into the “economic security” domain.

“The U.S. Patent and Trademark Office is seeking comments as to whether the United States should identify and bar from publication and issuance certain patent applications as detrimental to the nation’s economic security,” according to a notice that was published in the Federal Register on April 20.

That would be a mistake, I wrote in my own comments submitted to the Patent Office yesterday.

Economic security — which could conceivably implicate all new inventions — is not analogous to the more limited domain of national security-related inventions, “so the use of secrecy orders is inappropriate to protect economic security,” I suggested.

Instead, the existing option for an applicant to request nonpublication of his or her patent application up to the point that the patent is issued is a superior alternative to a mandatory secrecy order, I wrote.  “The inventor is likely to be better qualified than any third party to assess the economic significance of the invention, and is also likely to be best motivated to protect his or her own financial interests.”

“The USPTO has not taken a position” on these questions, the Patent Office said in its April 20 notice, “nor is it predisposed to any particular views.”

Carbon Capture Research, and More from CRS

Noteworthy new and updated reports from the Congressional Research Service that Congress has not made readily available to the public include the following.

Carbon Capture and Sequestration: Research, Development, and Demonstration at the U.S. Department of Energy, April 23, 2012

Members of Congress Who Die in Office: Historic and Current Practices, April 25, 2012

Hydraulic Fracturing and the National Environmental Policy Act (NEPA): Selected Issues, April 25, 2012

Domestic Content Legislation: The Buy American Act and Complementary Little Buy American Provisions, April 25, 2012

The STOCK Act, Insider Trading, and Public Financial Reporting by Federal Officials, April 19, 2012

Data Security Breach Notification Laws, April 10, 2012

Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, April 6, 2012

Role of Scientists and Engineers in National and International Security

Image courtesy of Shutterstock

Today, I am speaking at a colloquium hosted by the University of Texas at Austin Physics Department regarding the role of scientists and engineers in the security field.  Additionally, I will address current and future challenges for scientists and engineers to improve international security.

You can view my presentation slides here (PDF).

Senate Review of CIA Interrogation Program “Nearing Completion”

The Senate Intelligence Committee has been reviewing the post-9/11 detention and interrogation practices of the Central Intelligence Agency for four years and is still not finished.  But the end appears to be in sight.

“The review itself is nearing completion — before the end of summer — but is not over yet,” a spokesperson for the Committee said.  “The release date should be not too far thereafter, but is not set.”

“This review is the only comprehensive in-depth look at the facts and documents pertaining to the creation, management, and effectiveness of the CIA detention and interrogation program,” according to Sen. Jay Rockefeller, who was chairman of the Intelligence Committee when the review began in 2008.

Committee staff are said to have reviewed millions of pages of classified documents pertaining to the CIA program.

In newly published questions for the record following his confirmation hearing last year to be Director of the CIA, Gen. David Petraeus was asked by Senator Rockefeller if he would cooperate with the Committee review.

“I believe that a holistic and comprehensive review of the United States Government’s detention and interrogation programs can lead to valuable lessons that might inform future policies,” Petraeus replied.

“The best way to gain a common set of facts would be to reach out to the intelligence and military communities responsible for detentions and interrogations and for implementing future policies,” he added.  “[T]o gain the proper insights from a series of actions or decisions, we cannot separate the review process from the public servants undertaking the actions,” he said.

Gen. Petraeus also responded to questions concerning interrogation in the “ticking time bomb” scenario (he says “research is required now”), and the applicability of official U.S. government statements on the use of drones to CIA operations (which he declined to confirm), among other topics.

His responses to these questions were published earlier this month in the record of his June 23, 2011 confirmation hearing.

Sen. Dianne Feinstein, the current chair of the Senate Intelligence Committee, provided a preview of the Committee’s findings on CIA interrogation practices in a November 29, 2011 floor statement during the debate on the FY2012 defense authorization act (also noted by Jeffrey Kaye in The Public Record).

“As chairman of the Select Committee on Intelligence, I can say that we are nearing the completion a comprehensive review of the CIA’s former interrogation and detention program, and I can assure the Senate and the Nation that coercive and abusive treatment of detainees in U.S. custody was far more systematic and widespread than we thought,” Sen. Feinstein said.

“Moreover, the abuse stemmed not from the isolated acts of a few bad apples but from fact that the line was blurred between what is permissible and impermissible conduct, putting U.S. personnel in an untenable position with their superiors and the law.”

Govt Wants More Time to Respond to CIA Drone FOIA Case

Government attorneys yesterday asked a court for an extension of time to respond to two Freedom of Information Act lawsuits seeking disclosure of records pertaining to “alleged targeted lethal operations” conducted by the Central Intelligence Agency, including the killing of Anwar al-Awlaki.

The attorneys’ request seems to portend a possible change in the government’s persistent refusal to acknowledge the widely reported fact of the CIA’s use of drones in targeted killing operations.

“Attorney General Eric H. Holder, Jr. has personally directed us to seek this additional time to allow the Government to finalize its position with regard to the sensitive national security matters presented in this case,” the Justice Department attorneys told the judge.

“Given the significance of the matters presented in this case, the Government’s position is being deliberated at the highest level of the Executive Branch.”

At issue are two FOIA lawsuits brought by the New York Times and the American Civil Liberties Union.  The request for an extension until May 21, 2012 was granted by Judge Colleen McMahon.

Meanwhile, the Justice Department has just released its 2011 report on FOIA litigation and compliance.  Among other things, the report notes that the so-called “Glomar” response — by which an agency refuses to confirm or deny the existence of responsive records — was invoked by the government in three cases that were decided in 2011.  In each of those cases, the court ruled in favor of the government.

FAS Roundup: April 23, 2012

New op-ed on diplomacy with North Korea, GAO intelligence review, new CRS reports and much more.

From the Blogs

  • GAO Completes an “Intelligence Related” Review: Following years of controversy, the Government Accountability Office this week released an unclassified version of its long-awaited report on FBI Counterterrorism. The report itself comes as an anti-climax, but it is the first GAO report involving intelligence-related matters to be completed since the issuance of an intelligence community directive last summer which authorized GAO to gain access to certain intelligence agency information.  As such, it may herald a growing role for GAO in intelligence oversight.
  • Secret Systems Clutter the Electromagnetic Spectrum: The difficulty that the military has in allocating the efficient use of the electromagnetic spectrum for military operations is aggravated by the fact that some of those uses — involving intelligence platforms and sensors — are secret even from military planners themselves, a new Pentagon doctrinal publication notes.
  • Another Reason to Avoid the Dentist?: Every so often it seems that dental radiation briefly makes an appearance as something that we wonder if we should be concerned about. Dr. Y investigates the effects of dental x-rays in a new post on the ScienceWonk Blog.
  • “Traitor,” A Whitleblower’s Tale: Steven Aftergood writes that Jesselyn Radack’s memoir, Traitor: The Whistleblower and the American Taliban presents the moving story of a young attorney’s unexpected encounter with official misconduct, and the excruciating ordeal that ensued when she decided to challenge it. In 2001, Ms. Radack was a Justice Department attorney and specialist in legal ethics.  In response to an official inquiry, she advised that the newly captured John Walker Lindh, the so-called “American Taliban,” should not be interrogated without an attorney present — which he then was anyway.  When Department officials publicly denied having received any such legal advice, and even destroyed evidence to the contrary, she exposed the deception.

 

Publications

  • Right Approach for Diplomacy with North Korea: FAS President Charles D. Ferguson writes in a new op-ed published by Kyodo News that with the failed April 13th launch of a North Korean rocket, an opportunity has opened up to form a more realistic and long-term plan to create dialogue and build trust with North Korea. The new North Korean regime may be signaling that it is receptive.

 

U.S.-Japan Nuclear Working Group Website

  • FAS has partnered with the Maureen and Mike Mansfield Foundation and the Sasakawa Peace Foundation to convene a group of approximately fifteen American and Japanese experts and officials representing diverse stakeholder communities in the two countries’ nuclear energy activities.  Between March 2012 and April 2013 the working group will meet four times to discuss shared concerns at stake amidst the shifting political landscape for nuclear energy in Japan and the United States. To learn more about the working group, click here. 

 

Volunteer This Weekend with FAS

 

FAS in the News