Government Secrecy and Censorship

From its beginning, the Federation of American Scientists has been immersed in policies and issues regarding government secrecy and censorship. By the time World War II broke out, the fission process had been observed, followed by detection of the neutron, and recognition of induced uranium fission. In the early 1940s, some scientists in the United States, Great Britain, the Soviet Union, and Germany realized the potential for nuclear weapons.

The three atomic bombs detonated in the summer of 1945 were created and assembled at secret U.S. government sites by a mixed pedigree of scientists, engineers, and military officers. The decision to drop two of them on Japanese cities was determined by military and political events then occurring, particularly in the final year of World War II.

Our Soviet wartime ally, excluded from the American, British, and Canadian nuclear coalition, used its own espionage network to remain informed. Well-placed sympathizers and spies conveyed many essential details of nuclear-explosive development. Through this network, Stalin learned of the Manhattan Project and the Trinity test. As the German invaders began to retreat from Soviet borders, he established his own secret nuclear development project.

Read on: View the full version of the article here.

 

Nuclear Transparency and the Stockpile Stewardship and Management Plan

ssmp2016By Hans M. Kristensen

I was reading through the latest Stockpile Stewardship and Management Plan from the National Nuclear Security Administration (NNSA) and wondering what I should pick to critique the Obama administration’s nuclear policy.

After all, there are plenty of issues that deserve to be addressed, including:

– Why NNSA continues to overspend and over-commit and create a spending bow wave in 2021-2026 in excess of the President’s budget in exactly the same time period that excessive Air Force and Navy modernization programs are expected to put the greatest pressure on defense spending?

– Why a smaller and smaller nuclear weapons stockpile with fewer warhead types appears to be getting more and more expensive to maintain?

– Why each warhead life-extension program is getting ever more ambitious and expensive with no apparent end in sight?

– And why a policy of reductions, no new nuclear weapons, no pursuit of new military missions or new capabilities for nuclear weapons, restraint, a pledge to “put an end to Cold War thinking,” and the goal of disarmament, instead became a blueprint for nuclear overreach with record funding, across-the-board modernizations, unprecedented warhead modifications, increasing weapons accuracy and effectiveness, reaffirmation of a Triad and non-strategic nuclear weapons, continuation of counterforce strategy, reaffirmation of the importance and salience of nuclear weapons, and an open-ended commitment to retain nuclear weapons further into the future than they have existed so far?

What About The Other Nuclear-Armed States?

Despite the contradictions and flaws of the administration’s nuclear policy, however, imagine if the other nuclear-armed states also published summaries of their nuclear weapons plans. Some do disclose a little, but they could do much more. For others, however, the thought of disclosing any information about the size and composition of their nuclear arsenal seems so alien that it is almost inconceivable.

Yet that is actually one of the reasons why it is necessary to continue to work for greater (or sufficient) transparency in nuclear forces. Some nuclear-armed states believe their security depends on complete or near-compete nuclear secrecy. And, of course, some nuclear information must be protected from disclosure. But the problem with excessive secrecy is that it tends to fuel uncertainty, rumors, suspicion, exaggerations, mistrust, and worst-case assumptions in other nuclear-armed states – reactions that cause them to shape their own nuclear forces and strategies in ways that undermine security for all.

Nuclear-armed states must find a balance between legitimate secrecy and transparency. This can take a long time and it may not necessarily be the same from country to country. The United States also used to keep much more nuclear information secret and there are many institutions that will always resist public access. But maximum responsible disclosure, it turns out, is not only necessary for a healthy public debate about nuclear policy, it is also necessary to communicate to allies and adversaries what that policy is about – and, equally important, to dispel rumors and misunderstandings about what the policy is not.

Nuclear transparency is not just about pleasing the arms controllers – it is important for national security.

So here are some thoughts about what other nuclear-armed states should (or could) disclose about their nuclear arsenals – not to disclose everything but to improve communication about the role of nuclear weapons and avoid misunderstandings and counterproductive surprises: Continue reading

CIA Withdraws Email Destruction Proposal

The Central Intelligence Agency has formally rescinded its widely-criticized plan to destroy the email records of all but 22 senior agency officials, the National Archives said last week.

The CIA proposal generated controversy when it became public in 2014 because of its surprisingly narrow scope, which would have precluded preservation of vast swaths of CIA email records. Such records have proved invaluable not only for historical purposes, but also for contemporary accountability and congressional oversight.

“The agency has withdrawn this schedule effective March 21, 2016, due to the agency’s reorganization,” wrote Margaret Hawkins, director of records appraisal and agency assistance at the National Archives and Records Administration, in an email message to the Federation of American Scientists.

“In our last communication on this schedule, it was conveyed that a public meeting would be held to address all comments received. With the schedule’s withdrawal, this meeting will not be held.”

In any case, CIA is still obliged to present a plan to the National Archives to explain how it will preserve or dispose of its email records. CIA can either adopt the standard template known as the Capstone General Records Schedule, or it can devise a specific plan of its own for approval by the National Archives.

“If the agency chooses to submit a new agency-specific records schedule, it will be available for request and comment to the public through the Federal Register process,” Ms. Hawkins wrote.

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Last month the House Committee on Homeland Security published a report of its task force on combating terrorist and foreign fighter travel. In a footnote, the Committee cited a related report from the Congressional Research Service and, unexpectedly, provided a link to the report on the FAS website (footnote 23).

This was incongruous because Congress has gone out of its way to resist online public distribution of CRS reports, and the cited report was obtained and posted by Secrecy News without authorization. But having an online source for such CRS reports evidently proves useful to Congress nonetheless.

This zone of incongruity is the natural habitat of Secrecy News. It is where declared policies go unmatched by actual practices, and where official promises of transparency are unrealized in fact.

Sometimes we can help to reduce the distance between rhetoric and reality, and to nudge the process along, with measurable results. Thanks in part to a recurring government-wide review of classification guidance that was conceived by FAS in 2009 (and which we advocated at the time as “the single most productive secrecy reform action that could now be undertaken”), the annual number of new national security secrets created last year was the smallest on record, and amounted to just 13% of what it had been a decade earlier.

Anyway, you know best whether this work is of value to you or not. If it is, and if your circumstances permit, we could use your help to carry on.

Tax-deductible contributions to the Federation of American Scientists can be made online here (direct your donation to “Government Secrecy”).

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DNI Directive on Controlled Access Programs

The Director of National Intelligence last month issued a new directive on Controlled Access Programs (CAPs).

CAPs are the Intelligence Community equivalent of what are otherwise called Special Access Programs (SAPs). These are classified programs that involve access restrictions above and beyond ordinary classification controls. CAPs include compartmented intelligence programs, but are not limited to them.

The new directive, Intelligence Community Directive 906, establishes the policy framework for management and oversight of Controlled Access Programs. The directive itself is unclassified.

Patents Awarded to Formerly Secret Inventions

Last year, 95 secrecy orders barring disclosure of inventions under the Invention Secrecy Act of 1951 were imposed on new patent applications while 36 prior secrecy orders were rescinded. Three of the newly releasable inventions have recently received patents, decades after the inventors filed their applications.

The three new patents were identified by the U.S. Patent and Trademark Office in response to a Freedom of Information Act request.

The formerly secret inventions that received patents this year are:

Patent Number 9057604: Point-ahead laser pointer-tracker systems with wavefront correction in both transmit and receive directions. Filed in April 1989, the patent application was finally granted in June 2015.

Patent Number 9115993: Fused PM fiber single-polarization resonator. It was filed in August 1990 and granted in August 2015.

Patent Number 9181140: Solid propellant bonding agents and methods for their use. It was filed in December 1993 and granted in November 2015.

The factors that led the U.S. government to impose secrecy orders on these particular inventions more than two decades ago (and to release them this year) are not self-evident. But neither do they seem to indicate an obvious abuse of authority.

There were a total of 5,579 invention secrecy orders in effect at the end of fiscal year 2015, the highest number of such secrecy orders since FY 1993.

Science Experiments Blocked Due to Safety Risks

The U.S. government blocked dozens of life science experiments over the past decade because they were deemed to pose undue risks to public health and safety.

Between 2006 and 2013, researchers submitted 618 potentially restricted experiment proposals for review by the Centers for Disease Control (CDC) Division of Select Agents and Toxins (DSAT), according to a new study published in the journal Health Security.

Fifteen percent of those (91) were found to meet the regulatory definition of a “restricted experiment.” 31 of those experiments were nevertheless approved because they included appropriate safety measures.

But “DSAT did not approve 60 restricted experiment requests due to potentially serious biosafety risks to public health and safety,” researchers found. “All 60 denied restricted experiments proposed inserting drug resistance traits into select agents that could compromise the control of disease.”

See Review of Restricted Experiment Requests, Division of Select Agents and Toxins, Centers for Disease Control and Prevention, 2006-2013 (abstract only) by Jacinta Smith, Denise Gangadharan, and Robbin Weyant, Health Security, Vol. 13, No. 5, September 2015: 307-316.

Regulatory restrictions on research can infringe on academic freedom and may have the unintended consequence of foreclosing important — and beneficial — avenues of scientific investigation.

But the risks involved in genetic manipulation of biological agents are so profound that almost everyone agrees that some limits are necessary and appropriate.

“A product resulting from a restricted experiment has the potential to be directly misapplied by others to pose a threat to public health and safety, agricultural crops and other plants, animals and/or the environment,” the authors wrote. “In addition, the accidental release of a product of a restricted experiment may compromise the control or treatment of the disease agent in humans, animals, and/or plants.”

There have been four reported cases involving violations of restricted experiment regulations in recent years, the authors noted. Two of the restricted experiment violations resulted in civil penalties ranging from $40,000 to $1 million.

Some say the existing regulatory regime does not go far enough to restrict hazardous research.

“In the current Wild West of otherwise completely unregulated, and otherwise nearly completely unmonitored, US pathogens research, the requirement for review of ‘restricted experiments’ under the select agent rule is the one small bright spot,” said Richard H. Ebright, a molecular biologist at Rutgers University.

He noted that current regulations specify only two categories of potentially restricted experiments, which leaves much research on pathogens beyond regulatory control or oversight.

“The most effective avenue for the [US government] to implement a requirement for review of other pathogen research projects–for example, to implement a requirement for review of pathogen research projects that create new potential pandemic pathogens–would be to add additional ‘restricted experiments’ to the select agent rule,” Dr. Ebright said.

“Controlled Unclassified Information” Is Coming

After years of preparation, the executive branch is poised to adopt a government-wide system for designating and safeguarding unclassified information that is to be withheld from public disclosure.

The new system of “controlled unclassified information” (CUI) will replace the dozens of improvised control markings used by various agencies that have created confusion and impeded information sharing inside and outside of government. A proposed rule on CUI was published for public comment on May 8 in the Federal Register.

While CUI is by definition unclassified, it is nevertheless understood to require protection against public disclosure on the basis of statute, regulation, or agency policy. In many or most cases, the categories of information that qualify as CUI are non-controversial, and include sensitive information related to law enforcement, nuclear security, grand jury proceedings, and so on.

Until lately, “more than 100 different markings for such information existed across the executive branch. This ad hoc, agency-specific approach created inefficiency and confusion, led to a patchwork system that failed to adequately safeguard information requiring protection, and unnecessarily restricted information sharing,” the proposed rule said.

One of the striking features of the new CUI program is that it limits the prevailing autonomy of individual agencies and obliges them to conform to a consistent government-wide standard.

“CUI categories and subcategories are the exclusive means of designating CUI throughout the executive branch,” the proposed rule states. “Agencies may not control any unclassified information outside of the CUI Program.”

Nor do agencies get to decide on their own what qualifies as CUI. That status must be approved by the CUI Executive Agent (who is the director of the Information Security Oversight Office) based on an existing statutory or regulatory requirement, or on a legitimate agency policy. And it must be published in the online CUI Registry. There are to be no “secret” CUI categories.

Importantly, the CUI Program offers a way of validating agency information control practices pertaining to unclassified information. (A comparable procedure for externally validating agency classification practices does not exist.) But CUI status itself is not intended to become an additional barrier to disclosure.

“The mere fact that information is designated as CUI has no bearing on determinations pursuant to any law requiring the disclosure of information or permitting disclosure as a matter of discretion,” the new proposed rule said. The possibility that CUI information could or should be publicly disclosed on an authorized basis is not precluded.

More specifically, a CUI marking in itself does not constitute an exemption to the Freedom of Information Act, the rule said. However, a statutory restriction that justifies designating information as CUI would also likely make it exempt from release under FOIA.

One complication arises from the fact that simply removing CUI controls does not equate to or imply public release.

“Decontrolling CUI relieves authorized holders from requirements to handle the information under the CUI Program, but does not constitute authorization for public release,” the rule said. Instead, disclosure is only permitted “in accordance with existing agency policies on the public release of information.”

The upshot is that while there can be “controlled unclassified information” that is publicly releasable, there can also be non-CUI (or former CUI) information that is not releasable. The latter category might include unclassified deliberative materials, for example, that are not controlled as CUI but are still exempt from disclosure under the Freedom of Information Act.

More subtly, noted John P. Fitzpatrick, the director of the Information Security Oversight Office, there is a large mass of material that is neither CUI nor non-CUI– until someone looks at it and makes an assessment. In all such cases (other than voluntary disclosure by an agency), public access would be governed by the provisions and exemptions of the FOIA.

The genealogy of the CUI Program dates back at least to a December 16, 2005 memorandum in which President George W. Bush directed that procedures for handling what was called “sensitive but unclassified” information “must be standardized across the Federal Government.”

At that time, the impetus for standardization (which never came to fruition) was based on the need for improved sharing of homeland security and terrorism-related information. The initiative was broadened and developed in the 2010 Obama executive order 13556, which eventually led to the current proposed rule. Public comments are due by July 7.

Growing Data Collection Inspires Openness at NGA

A flood of information from the ongoing proliferation of space-based sensors and ground-based data collection devices is promoting a new era of transparency in at least one corner of the U.S. intelligence community.

The “explosion” of geospatial information “makes geospatial intelligence increasingly transparent because of the huge number and diversity of commercial and open sources of information,” said Robert Cardillo, director of the National Geospatial-Intelligence Agency (NGA), in a speech last month.

Hundreds of small satellites are expected to be launched within the next three years — what Mr. Cardillo called a “darkening of the skies” — and they will provide continuous, commercially available coverage of the entire Earth’s surface.

“The challenges of taking advantage of all of that data are daunting for all of us,” Mr. Cardillo said.

Meanwhile, the emerging “Internet of Things” is “spreading rapidly as more people carry more handheld devices to more places” generating an abundance of geolocation data.

This is, of course, a matter of intelligence interest since “Every local, regional, and global challenge — violent extremism in the Middle East and Africa, Russian aggression, the rise of China, Iranian and North Korean nuclear weapons, cyber security, energy resources, and many more — has geolocation at its heart.”

Consequently, “We must open up GEOINT far more toward the unclassified world,” Director Cardillo said in another speech last week.

“In the past, we have excelled in our closed system. We enjoyed a monopoly on sources and methods. That monopoly has long since ended. Today and in the future, we must thrive and excel in the open.”

So far, NGA has already distinguished itself in the area of disaster relief, Mr. Cardillo said.

“Consider Team NGA’s response to the Ebola crisis. We are the first intelligence agency to create a World Wide Web site with access to our relevant unclassified content. It is open to everyone — no passwords, no closed groups.”

NGA provided “more than a terabyte of up-to-date commercial imagery.”

“You can imagine how important it is for the Liberian government to have accurate maps of the areas hardest hit by the Ebola epidemic as well as the medical and transportation infrastructure to combat the disease,” Mr. Cardillo said.

But there are caveats. Just because information is unclassified does not mean that it is freely available.

“Although 99 percent of all of our Ebola data is unclassified, most of that is restricted by our agreements [with commercial providers],” Mr. Cardillo said. “We are negotiating with many sources to release more data.”

Last week, Director Cardillo announced a new project called GEOINT Pathfinder that will attempt “to answer key intelligence questions using only unclassified data.”

When it comes to transparency, the Office of the Director of National Intelligencerecently expressed the view that the U.S. intelligence community should make “information publicly available in a manner that enhances public understanding of intelligence activities, while continuing to protect information when disclosure would harm national security.”

But some intelligence agencies have chosen a different path.

At the CIA, for example, public access to unclassified translations and analytical products of the Open Source Center was abruptly terminated at the end of 2013. Such materials from the OSC and its predecessor, the Foreign Broadcast Information Service, had provided invaluable support to generations of scholars, students, and foreign policy specialists. But that is no longer the case.

Making Government Accountability Work

The U.S. Constitution does not explicitly recognize a “public right to know.” But without reliable public access to government information, many features of constitutional government would not make sense. Citizens would not be able to evaluate the performance of their elected officials. Freedom of speech and freedom of the press would be impoverished. Americans’ ability to hold their government accountable for its actions would be neutered.

The conditions that make government accountability possible and meaningful are the subject of the new book Reclaiming Accountability by Heidi Kitrosser (University of Chicago Press, 2015).

The author introduces the term “substantive accountability,” which she contrasts with mere “formal accountability.” While formal accountability includes such things as the right to vote, substantive accountability requires that people must “have multiple opportunities to discover information relevant to their votes….”

This may seem obvious, but the trappings of formal accountability are often unsupported by the information that is needed to provide the substance of accountability, especially in matters of national security.

Kitrosser, a professor of law at the University of Minnesota Law School, shows that the principles of substantive accountability are deeply rooted in the text, structure and history of the Constitution. She uses those principles to provide a framework for evaluating contemporary assertions of presidential power over information, including executive privilege, state secrets, secret law, and prosecutions of unauthorized disclosures.

It cannot be the case, for example, that unauthorized disclosures of classification information are categorically prohibited by law and also that the President has discretion to classify information as he sees fit. If that were so, she explains, then the President would have unbounded authority to criminalize disclosure of information at will, and the classification system would have swallowed the First Amendment. As she writes: “The First Amendment’s promise would be empty indeed if its protections did not extend to information that the president wishes to keep secret.”

Kitrosser reviews the relevant case law to find openings and lines of argument that could be used to bolster the case for substantive accountability. She notes that Supreme Court rulings over the years “contain the seeds of an affirmative case for strongly protecting classified speakers.” In a 1940 ruling in Thornhill v. Alabama, for example, the Court declared that “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”

There is, of course, an opposing school of thought which posits a largely unconstrained presidential authority over government information. Moreover, this presidentialist view has been on “an upward historical trajectory” in recent decades. Leak investigations and prosecutions have risen markedly, and so have assertions of the state secrets privilege. Secret law blossomed after 9/11. The very term “executive privilege” is a modern formulation that only dates back to 1958 (as noted by Mark Rozell).

One of the deeply satisfying features of Kitrosser’s book (which is a work of scholarship, not a polemic) is her scrupulous and nuanced presentation of the presidential supremacist perspective. Her purpose is not to ridicule its weakest arguments, but to engage its strongest ones. To that end, she traces its origins and development, and its various shades of interpretation. She goes on to explain where and how substantive accountability is incompatible with presidential supremacy, and she argues that the supremacist viewpoint misreads constitutional history and is internally inconsistent.

The book adds analytical rigor and insight to current debates over secrecy and accountability, which it ultimately aims to inspire and inform.

“We can seek to harness and support those aspects of American law, politics, and culture that advance substantive accountability,” she writes.

“Reclaiming accountability is no single act. From internal challenges or external leaks by civil servants, to journalistic inquiries and reports, to congressional oversight, to FOIA requests, accountability is claimed and reclaimed every day by countless actors in myriad ways.”