Classified Info in Criminal Trials, and More from CRS

Former CIA officer John C. Kiriakou is to be arraigned today on charges of leaking classified information to the press in violation of the Espionage Act and the Intelligence Identities Protection Act — charges that he denies.  See The Case of An Accused Leaker: Politics or Justice? by Carrie Johnson, National Public Radio, April 13.

A newly updated report from the Congressional Research Service discusses Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act, April 2, 2012.

Another newly updated CRS report finds that federal agencies spent $750.4 million last year to pay for “advertising services.”  But though non-trivial, it seems that this amount was less than was spent for such purposes in any previous year since 2003.

The term advertising is not strictly defined in budget documents, and may include various forms of public relations, public service notices, and the like. “Government advertising can be controversial if it conflicts with citizens’ views about the proper role of government,” the CRS report stated. “Yet some government advertising is accepted as a normal part of government information activities.”

Federal advertising expenditures have actually decreased over the past two years and haven’t been lower since 2003. The highest level of advertising expenditures in the past decade occurred in 2004, the CRS report found.  See Advertising by the Federal Government: An Overview, April 6, 2012.

Some other updated CRS reports that have not been made publicly available by Congress include these:

Detention of U.S. Persons as Enemy Belligerents, April 11, 2012

Rare Earth Elements in National Defense: Background, Oversight Issues, and Options for Congress, April 11, 2012

The Lord’s Resistance Army: The U.S. Response, April 11, 2012

Kuwait: Security, Reform, and U.S. Policy, April 11, 2012

Pakistan: U.S. Foreign Assistance, April 10, 2012

A Closer Look at “Water Security” in Yemen

A few weeks ago the State Department took advantage of World Water day to announce the release of an National Intelligence Council report entitled “Water Security,” which assessed the possible effects of water shortages on U.S. national security over the next several decades. The NIC report’s “bottom line” was that “during the next ten years, many countries important to the United States will experience water problems . . . that will risk instability and state failure, increase regional tensions, and distract them from working with the United States on important U.S. policy objectives.” Although this conclusion may very well be correct, the relationship between water security and U.S. national security is more complicated than one might infer from the framing.  Continue reading

A New Edition of the Manual for Courts-Martial

Last week, the Department of Defense published the 2012 edition of the Manual for Courts-Martial (MCM).

The Manual contains the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), and the Uniform Code of Military Justice.  The latest edition incorporates legislative amendments and other changes introduced since the previous edition was published in 2008.

The Manual details the elements of various crimes such as “Aiding the Enemy” (Article 104), which is among the charges pending against Bradley Manning, who is suspected of having provided classified and other restricted records to WikiLeaks without authorization.

“No unauthorized communication, correspondence, or intercourse with the enemy is permissible,” according to the Manual’s explanation of Article 104 (which has not been amended recently).

“The intent, content, and method of the communication, correspondence, or intercourse are immaterial. No response or receipt by the enemy is required. The offense is complete the moment the communication, correspondence, or intercourse issues from the accused. The communication, correspondence, or intercourse may be conveyed directly or indirectly.”

“Giving intelligence to the enemy is a particular case of corresponding with the enemy made more serious by the fact that the communication contains intelligence that may be useful to the enemy for any of the many reasons that make information valuable to belligerents. This intelligence may be conveyed by direct or indirect means.”

See, more generally, Military Justice: Courts-Martial, An Overview from the Congressional Research Service, March 14, 2012.

Technology Assessment at the Congressional Research Service

The elimination of the congressional Office of Technology Assessment in 1995 was a self-inflicted wound that left Congress with diminished capacity to evaluate the challenging scientific and technological issues that continue to confront it.  But the need for such an enterprise to support the legislative process has not gone away, and to a limited extent it is now being addressed by the Congressional Research Service (as well as the Government Accountability Office).

Last month, CRS completed a substantial 139 page report entitled Energy Storage for Power Grids and Electric Transportation: A Technology Assessment. At first glance, it looks like an informative piece of work.

“This report attempts to summarize the current state of knowledge regarding energy storage technologies for both electric power grid and electric vehicle applications. It is intended to serve as a reference for policymakers interested in understanding the range of technologies and applications associated with energy storage, comparing them, when possible, in a structured way to highlight key characteristics relevant to widespread use.”

Two other recent CRS reports discuss the implications of hydraulic fracturing, or “fracking,” the controversial technology for injecting fluids into underground wells to stimulate oil and gas production.  See Hydraulic Fracturing and Safe Drinking Water Act Issues, April 10, 2012, and Hydraulic Fracturing: Chemical Disclosure Requirements, April 4, 2012.

Some other newly updated CRS reports that Congress has declined to make available to the public include the following.

Defining Homeland Security: Analysis and Congressional Considerations, April 3, 2012

Small Business Size Standards: A Historical Analysis of Contemporary Issues, April 10, 2012

Medicare Trigger, April 9, 2012

Western Sahara, April 5, 2012

Yemen: Background and U.S. Relations, April 10, 2012

Secret Satellite Promptly Detected in Orbit

On April 3, the National Reconnaissance Office successfully launched a classified intelligence satellite into orbit from Vandenberg Air Force Base.  Notwithstanding the usual operations security measures, amateur satellite trackers were able to locate the satellite in orbit within a few hours and even to videotape its passage overhead.

Last week’s launch is the first of four scheduled launches of NRO satellites in the next five months.  Last year, the NRO launched six satellites over a seven month period.

“We are in the middle of a launch campaign with an unprecedented operational tempo across national security space programs,” said Gil Klinger, deputy assistant secretary of defense for space policy, at a March 8 hearing of the House Armed Services Committee.

“Many of our space capabilities have become the ‘dial tone’ of national security,” Mr. Klinger said. “And like the dial tone of our telephones, we take their availability and presence for granted, noticing only when there is an unplanned service interruption.”

By intelligence community standards, the NRO has demonstrated exceptional financial management, said Betty Sapp, NRO principal deputy director.

“For the third year in a row, the NRO received a clean audit opinion on our Financial Statements, a truly unprecedented accomplishment within the IC,” she said at the March 8 hearing.

Pink Slime, and More from CRS

New reports from the Congressional Research Service that Congress has not made publicly available include the following.

Lean Finely Textured Beef: The “Pink Slime” Controversy, April 6, 2012

Government Procurement in Times of Fiscal Uncertainty, April 9, 2012

An Analysis of STEM Education Funding at the NSF: Trends and Policy Discussion, April 9, 2012

Federal Depository Library Program: Issues for Congress, March 29, 2012

Export-Import Bank: Background and Legislative Issues, April 3, 2012

The Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR): Developments in Trade and Investment, April 9, 2012

FAS Roundup: April 9, 2012

Prosecution of accused CIA leaker, new CRS reports, life-sciences research and much more.

From the Blogs

  • Prosecution of Accused CIA Leaker Will Face Legal Hurdles: Former CIA officer John C. Kiriakou was indicted on charges of leaking classified information to the press. Kiriakou is accused of violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert CIA officer, and of violating the Espionage Act for allegedly disclosing national defense information to persons not authorized to receive it.
  • Harmonize the Oversight of Life-Sciences Research: The Virtual Biosecurity Center, a project spear-headed by FAS, published an editorial by Susan A. Ehrlich who argues that the United States needs to establish a presidential commission charged with collecting, reviewing and synthesizing information into a single, comprehensive framework for the oversight of life-sciences research.

Continue reading

Institutionalizing Innovation in Secrecy Policy

It is possible to imagine all kinds of changes in government secrecy policy that would make the secrecy system smaller, more efficient, more susceptible to error correction, and more attuned to shifting security requirements.

Such changes might include, for example, self-cancelling classification markings, numerical limits on classification activity, broadly distributed oversight and declassification authority, new mechanisms for challenging classification decisions, and so on.

But before any such change could be adopted in practice, it would almost certainly need to be tested and validated for use, particularly if it involved a real departure from current procedures.

A classification policy “test bed” in which a variety of new classification policies could be put into practice on a limited scale would therefore be desirable, and would signify a non-rhetorical commitment to policy change.

It is interesting to note that the need to systematically approach change has been recognized in other national security contexts, which might serve as a model for secrecy reform.

The U.S. Army actually has its own Logistics Innovation Agency whose mission is “to provide innovative solutions for improved operational and tactical logistics readiness.”

The Agency “uses well-defined processes of exploration, discovery, demonstration, and transition to integrate logistics solutions that help prepare the Army for uncertain and complex future operating environments,” according to an updated Army regulation published last week.

Similarly, the U.S. Navy has an Office of Innovation that “promotes, fosters, and develops innovative science, technology, processes and policies that support the Department of the Navy.”

These and similar entities might be persuaded or directed to undertake pilot projects on innovations in national security classification.  If successful, such efforts could advance a consensus view of sharply limited secrecy that is more responsive to the public interest in both security and disclosure.

U.S. Oil Imports and Exports, and More from CRS

New and newly updated reports from the Congressional Research Service that have not been made readily available to the public include these.

U.S. Oil Imports and Exports, April 4, 2012

Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress, April 6, 2012

Navy Littoral Combat Ship (LCS) Program: Background, Issues and Options for Congress, April 6, 2012

Navy Nuclear Aircraft Carrier (CVN) Homeporting at Mayport: Background and Issues for Congress, April 6, 2012

Coast Guard Polar Icebreaker Modernization: Background, Issues, and Options for Congress, April 6, 2012

The Republic of the Philippines and U.S. Interests, April 5, 2012

Prosecution of Accused CIA Leaker Will Face Legal Hurdles

Former CIA officer John C. Kiriakou was indicted yesterday on charges of leaking classified information to the press in violation of the Espionage Act and the Intelligence Identities Protection Act.  He had been charged on January 23 but the indictment was not filed and unsealed until yesterday.

Kiriakou is accused of violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert CIA officer, and of violating the Espionage Act for allegedly disclosing national defense information to persons not authorized to receive it. He is further accused of making false statements to the CIA Publications Review Board in connection with a manuscript he intended to publish.

While the indictment is a daunting blow to Mr. Kiriakou, who must mobilize an expensive and burdensome defense, it is challenging in a different way for the prosecution, which will face a variety of substantive and procedural hurdles.

For one thing, it remains to be shown that the “covert officer” whose identity was allegedly disclosed to a reporter by Kiriakou actually falls within the ambit of the Intelligence Identities Protection Act.  To be subject to the Act’s penalties, the covert officer in question — whose identity has not been publicly revealed — must not only be under cover but must also have served abroad within the past 5 years.

But the prosecution’s biggest challenge, which may well be insurmountable, will be to demonstrate to a jury that Mr. Kiriakou actually intended to harm the United States or to assist a foreign nation by committing an unauthorized disclosure.

The new indictment asserts generally that Kiriakou “had reason to believe [the information] could be used to the injury of the United States and to the advantage of any foreign nation,” which is an element of the crime set forth in the Espionage Act (18 USC 793).

Yet the meaning of this provision was construed by Judge T.S. Ellis III in a 2006 opinion in a way that would seem to make the prosecution of Mr. Kiriakou particularly difficult. In light of that opinion, the government will have to prove not merely that Kiriakou “had reason to believe” some harm to the United States could possibly result from his action, but that he deliberately intended to cause such harm.

This follows from the (alleged) fact that Kiriakou disclosed classified “information” rather than classified “documents,” as well as from the seemingly duplicative Espionage Act use of the terms willfulness and reason to believe, which Judge Ellis interpreted thus:

“If a person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for ‘willfully’ committing the prohibited acts even if he viewed the disclosure as an act of patriotism,” Judge Ellis wrote. “By contrast, the ‘reason to believe’ scienter requirement that accompanies disclosures of information requires the government to demonstrate the likelihood of defendant’s bad faith purpose to either harm the United States or to aid a foreign government.”  (see pp. 33-34).

But there is no known indication that Mr. Kiriakou, a former CIA counterterrorism operations officer, had a bad faith purpose to harm the United States, and every indication of the opposite.

“For more than 14 years, John worked in the field and at home, under conditions of great peril and stress and at great personal sacrifice, dedicating himself to protecting America and Americans from harm at home and abroad,” states a new website devoted to his cause.