SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 87
September 15, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

MILITARY TAKES "PRO-ACTIVE" STANCE AGAINST WMD THREATS

The U.S. military says it is taking a more assertive stance against the proliferation or use of weapons of mass destruction.

Newly updated tactical military doctrine "represents a major shift from the former, passive defense nature against nuclear, biological, and chemical weapons to a broader, active, and preventive approach toward a wider range of CBRN [chemical, biological, radiological, and nuclear] threats and hazards," according to a new manual on CBRN Operations.

The new posture constitutes "a significant doctrinal shift from 'reactive' to 'proactive' military capabilities. These actions are being performed at the tactical level, perhaps, now more than ever," the unclassified manual said.

See "Multi-Service Doctrine for Chemical, Biological, Radiological, and Nuclear Operations," U.S. Army Field Manual 3-11, July 2011.

The manual states that in accordance with international law, "The United States will never use chemical weapons." Likewise, "The United States will never use biological weapons."

However, "The United States may use nuclear weapons to terminate a conflict or war at the lowest acceptable level of hostilities." (That stark statement is not new, and appeared in prior doctrine published in 2003.)


CRS VIEWS CONGRESSIONAL AUTHORITY TO LIMIT MILITARY OPERATIONS

The authority of the President to use military force without congressional authorization and the ability of Congress to limit or regulate such use are discussed in a new report from the Congressional Research Service.

At issue are the scope and priority of basic constitutional terms, including the definition of the President's role as commander in chief, the authority of Congress to declare war, and its ability to appropriate or to withhold funds for military operations.

No final answers can be provided. However, "it is generally agreed that Congress cannot 'direct campaigns,' but that Congress can regulate the conduct of hostilities, at least to some degree, and that Congress can limit military operations without the risk of a presidential veto by refusing to appropriate funds," the CRS report said.

"To date,... no court has invalidated a statute passed by Congress on the basis that it impinges the constitutional authority of the Commander in Chief, whether directly or indirectly through appropriations," the report noted. "In contrast, presidential assertions of authority based on the Commander-in-Chief Clause, in excess of or contrary to congressional authority, have been struck down by the courts."

The political, ideological or institutional obstacles to the independent exercise of constitutional authority by Congress, which may run even deeper than any legal constraints, are not addressed here.

A copy of the new report was obtained by Secrecy News. See "Congressional Authority to Limit Military Operations," September 8, 2011:


REPORTER RISEN ARGUES AGAINST SUBPOENA IN STERLING LEAK CASE

A government "motion for clarification and reconsideration" of a court order that limited the obligation of reporter James Risen to testify at the upcoming trial of former CIA officer and accused leaker Jeffrey Sterling should be rejected, Risen's attorneys argued yesterday.

There is no need for "clarification" of the court's July 29 order, they said, since it is perfectly clear. Mr. Risen does not need to do more than to authenticate his authorship of a book he wrote, the court said, and to attest to its accuracy.

And there is no legitimate basis for "reconsideration," they argued, since there has been no intervening change in the law and no evidence of judicial error.

"The Government says nothing... beyond a rehash of the Government's prior arguments and offers nothing sufficient to alter the balancing of interests already performed by this Court," Mr. Risen's attorneys wrote.

Similar arguments against a subpoena were also offered yesterday by Mr. Sterling's attorneys, who added: "Every time the Government appeals to this Court to admit some new or additional subject matter of Mr. Risen's proposed testimony, the Court should be reminded how little evidence the Government really has in this case."

The prosecution has "a compelling interest in Mr. Risen's eyewitness testimony" which is "critical to the case," the government has argued. ("Leak Prosecutors Press Again for Subpoena of Risen," Secrecy News, September 6, 2011).

The latest edition of "The News Media & The Law," the quarterly publication of the Reporters Committee for Freedom of the Press, includes several articles on the theme of "Journalists, Whistleblowers and National Security."


A TRIBUTE TO CENSORED AUTHOR ANTHONY SHAFFER

Rep. Walter B. Jones (R-NC) paid tribute to military intelligence officer Lt. Col. Anthony Shaffer in a statement entered into the Congressional Record yesterday.

"Col. Shaffer's storied career has been distinguished by his willingness and ability to work at the cutting edge of our nation's intelligence community," Rep. Jones said.

Though it was not mentioned by the Congressman, Shaffer is also the author of a book called "Operation Dark Heart," which was memorably and ineffectively censored by the U.S. Government. The Pentagon purchased 10,000 copies of the original version of the book in order to destroy them, but then a small number of uncensored review copies became public anyway. ("Behind the Censorship of Operation Dark Heart," Secrecy News, September 29, 2010)

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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