Who is in Charge of Biodefense?

Photo credit: stock.xchng

Who is in charge of carrying out our nation’s biodefense policy?  This question was raised repeatedly in Wednesday’s hearing of the Senate Labor-Health and Human Services subcommittee.  The hearing focused on bioterrorism, biosecurity, and medical countermeasures in contrast to last week’s senate hearing on terrorism during which the topic was barely mentioned.

The hearing was divided into two parts, with Health and Human Services Secretary Kathleen Sebelius testifying first about the department’s recent review of the entire medical countermeasure enterprise. Continue reading

Behind the Censorship of Operation Dark Heart

By censoring Anthony Shaffer’s new book “Operation Dark Heart” even though uncensored review copies are already available in the public domain, the Department of Defense has produced a genuinely unique product:  a revealing snapshot of the way that the Obama Administration classifies national security information in 2010.

With both versions before them (excerpts), readers can see for themselves exactly what the Pentagon classifiers wanted to withhold, and can judge for themselves whether the secrecy they tried to impose can be justified on valid national security grounds.  In the majority of instances, the results of such an inspection seem disappointing, if not very surprising, and they tend to confirm the most skeptical view of the operation of the classification system.

The most commonly repeated “redaction” in Operation Dark Heart is the author’s cover name, “Christopher Stryker,” that he used while serving in Afghanistan.  Probably the second most common redactions are references to the National Security Agency, its heaquarters location at Fort Meade, Maryland, the familiar abbreviation SIGINT (referring to “signals intelligence”), and offhand remarks like “Guys on phones were always great sources of intel,” which is blacked out on the bottom of page 56.

Also frequently redacted are mentions of the term TAREX or “Target Exploitation,” referring to intelligence collection gathered at a sensitive site, and all references to low-profile organizations such as the Air Force Special Activities Center and the Joint Special Operations Command, as well as to foreign intelligence partners such as New Zealand.  Task Force 121 gets renamed Task Force 1099.  The code name Copper Green, referring to an “enhanced” interrogation program, is deleted.

Perhaps 10% of the redacted passages do have some conceivable security sensitivity, including the identity of the CIA chief of station in Kabul, who has been renamed “Jacob Walker” in the new version, and a physical description of the location and appearance of the CIA station itself, which has been censored.

Many other redactions are extremely tenuous.  The name of character actor Ned Beatty is not properly classified in any known universe, yet it has been blacked out on page 15 of the book.  (It still appears intact in the Index.)

In short, the book embodies the practice of national security classification as it exists in the United States today.  It does not exactly command respect.

A few selected pages from the original and the censored versions of Operation Dark Heart have been posted side-by-side for easy comparison here (pdf).

The New York Times reported on the Pentagon’s dubious handling of the book in “Secrets in Plain Sight in Censored Book’s Reprint” by Scott Shane, September 18.

Inspectors General to Help Oversee Classification

The House and Senate this week approved legislation that will require the Inspector General of each executive branch agency that classifies information to evaluate the agency’s classification program and to assess its implementation of classification policies and procedures. The new measure should help to bolster the oversight of the national security classification system, which is currently the sole responsibility of the Information Security Oversight Office.

The provision was included in the “Reducing Over-classification Act” (HR 553), which was originally introduced by Rep. Jane Harman (D-CA) and amended by Sen. Joe Lieberman (I-CT) and which generally seeks to promote improved information sharing.

Despite its bold title, the legislation does not establish any new criteria for assuring appropriate classification nor does it even define the term overclassification. Yet by enlisting the Inspectors General to oversee agency compliance with current classification policies, the bill could make a significant contribution to addressing the problem of wrongful or unnecessary secrecy.

In particular, the IGs may be expected to monitor agency implementation of the Fundamental Classification Guidance Review, the Obama Administration initiative that is supposed to eliminate obsolete classification requirements in each agency (as required by executive order 13526, section 1.9). To date, there is no available evidence that agencies have made any progress in performing the Reviews, which must be completed by June 2012.

GAO Gains a Foothold in Intelligence Oversight

The Government Accountability Office seems poised to play an increased role in intelligence oversight, despite a series of legislative setbacks and the Obama Administration’s threat of a veto earlier in the year.

The issue remains alive in the FY2010 Intelligence Authorization Act which was approved in the Senate on September 27 and which now appears likely to be enacted into law. The Act (in section 348) requires the Director of National Intelligence to prepare a directive on GAO access to intelligence community information — thereby setting the stage for a stable new role for the GAO in intelligence agency audits and reviews.

In a letter to Congress (reprinted in the record of the floor debate) withdrawing the threat of a veto, ODNI General Counsel Robert S. Litt stressed that the new directive would not imply any change in existing law or GAO authority. He added that the new directive would also conform with “relevant opinions of the Office of Legal Counsel.” However, the only OLC opinion on the subject is from 1988, and it argued that GAO access to intelligence information is “precluded” by law. It hardly seems likely that the new directive would affirm that view.

Instead, the required directive should be seen as analogous to the recently updated Pentagon directive that permitted GAO access to highly classified special access programs, suggested Sen. Dianne Feinstein, the Senate Intelligence Committee chair.

“The GAO has produced very useful studies” on defense intelligence matters, said Director of National Intelligence James R. Clapper Jr., at his July 20 confirmation hearing. “I think the GAO serves a useful purpose for us.”

DF-21C Missile Deploys to Central China

China’s new DF-21C missile launcher shows itself in Western China.    Image: GoogleEarth

By Hans M. Kristensen

The latest Pentagon report on Chinese military forces recently triggered sensational headlines in the Indian news media that China had deployed new nuclear missiles close to the Indian border.

The news reports got it wrong, but new commercial satellite images reveal that launch units for the new DF-21C missile have deployed to central-western China. Continue reading

Bioterror Absent from Committee Agenda

Secretary Napolitano and Directors Mueller and Leiter

Terrorism is the “greatest security challenge of our age,” explained Senator Joe Lieberman, Chairman of the Senate Committee on Homeland Security and Governmental Affairs, during a hearing last Wednesday on “Confronting the Terrorist Threat to the Homeland.”  Because of this great challenge, FBI Director Robert Mueller, said in his testimony that protecting America from terrorism is the FBI’s highest priority.  And as Maine Senator Susan Collins pointed out in her opening remarks we cannot risk another “failure of imagination” like the one that led to 9-11. Continue reading

Is Publication of Classified Info a Criminal Act?

When Wikileaks published tens of thousands of classified U.S. military records concerning the war in Afghanistan last July, did it commit a criminal act under U.S. law?  That was the question posed by a new report (pdf) from the Congressional Research Service.  In the end, the CRS report tentatively concludes that “although unlawful acquisition of information might be subject to criminal prosecution, the publication of that information remains protected.”

What’s more interesting than the report’s ultimate conclusion is its probing treatment of basic questions such as the scope of First Amendment protections, and the application of U.S. law to foreign jurisdictions.

Could the Espionage Act possibly be used against foreigners acting outside the United States?  Remarkably, the CRS report noted that it could.  “The only court that appears to have addressed the question” ruled in 1985 that a citizen of East Germany, Dr. Alfred Zehe, could be prosecuted under the Espionage Act and he was in fact convicted.

On the other hand, could it be that the First Amendment provides protection to foreign publishers?  There doesn’t seem to be a crisp yes or no answer to this question.  But the CRS report, written by national security law specialist Jennifer K. Elsea, turned up a 1964 district court decision which suggested that foreign publishers do enjoy First Amendment rights, if only because American readers have a right to the information that they publish.  “The essence of the First Amendment right to freedom of the press is not so much the right to print as it is the right to read,” that court ruled.  Therefore, “the rights of readers are not to be curtailed because of the geographical origin of printed materials.”

But what about the publication of materials that have been illegally acquired?  That seems to be an open question.  The CRS report cited a 1989 case (Florida Star v. BJF at footnote 8) where the U.S. Supreme Court said that the question of “whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well” is “not definitively resolved.”

The comparatively short (14 page) CRS report, interesting as it is, is necessarily incomplete.

So, for example, it does not grapple in any detail with the legacy of the so-called AIPAC case. Although that case was ultimately dismissed in 2009, the court there upheld the constitutionality of the Espionage Act even when applied to private citizens who do not hold security clearances but who received and transmitted classified defense information without authorization.

Thus, Judge T.S. Ellis III ruled (pdf) in August 2006:  “Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.”

The CRS report also does not explicitly address 18 U.S.C. 793(g), which is the section of the Espionage Act that pertains to conspiracy.  Under this provision, the criminal offense would not be publication of the restricted records, but collusion with a source to violate the terms of the Espionage Act.  If Wikileaks has violated U.S. law — which remains uncertain — then its liability would likely be centered here.   (The possible relevance of 793g to the Wikileaks case was noted by the pseudonymous Equ Privat in the blog Finem Respice on August 1, and in private correspondence.)

A copy of the CRS report was obtained by Secrecy News.  See “Criminal Prohibitions on the Publication of Classified Defense Information,” Congressional Research Service, September 10, 2010.

DNI Directive on Unauthorized Disclosures (2007) Released

The Office of the Director of National Intelligence last week released Intelligence Community Directive 701 (pdf), entitled “Security Policy Directive for Unauthorized Disclosures of Classified Information,” dated March 14, 2007.

The directive sets forth procedures and requirements for identifying and reporting suspected unauthorized disclosures of classified information that are likely to cause damage to national security interests.  These may include unauthorized disclosures to the media concerning U.S. intelligence activities, the loss or compromise of classified information storage media or equipment, the discovery of clandestine surveillance devices, or the compromise of the intelligence operations of foreign partners.  All such disclosures are to be reported to the DNI via the Special Security Center (SSC), a component of the ODNI.

The 2007 directive, signed by then-DNI J. Michael McConnell, seems measured and matter of fact by comparison with the 2002 directive (pdf) that it replaced, which was issued by then-DCI George J. Tenet.  The Tenet directive had a lot more adjectives (“strong”, “aggressive”) connoting forceful opposition to leaks, as well as a bit of chest-thumping (leaks “shall not be tolerated or condoned”).  For whatever reason, most of that colorful language was removed in the 2007 directive.  A copy of the 2002 Tenet DCI Directive 6/8, which was originally obtained by Wikileaks in 2008, is here.

FOIA, Trade Secrets, and More from CRS

Some new reports from the Congressional Research Service that have not been made readily available to the public include the following (all pdf).

“The Freedom of Information Act and Nondisclosure Provisions in Other Federal Laws,” September 13, 2010.

“The Role of Trade Secrets in Innovation Policy,” August 31, 2010.

“Regulating Coal Combustion Waste Disposal: Issues for Congress,” September 21, 2010.

“The SPEECH Act: The Federal Response to ‘Libel Tourism’,” September 16.

“The Bush Tax Cuts and the Economy,” September 3, 2010.

Various Items

The possible near-term declassification of historical intelligence satellite programs was examined by Dwayne Day in “A Paler Shade of Black,” The Space Review, September 20. The author also noted the pending Fundamental Classification Guidance Review that is supposed to purge obsolete classification requirements from the system.

An initiative led by Public Citizen to gain release of grand jury testimony presented in 1975 by former President Richard Nixon was discussed by John W. Dean in “Releasing Nixon’s Grand Jury Testimony: It Could Change History,” FindLaw, September 17.

The new Army Field Manual 3-28 addresses “Civil Support Operations” (pdf), referring to domestic military operations in support of civilian authorities within the United States.

The Department of Defense issued new guidance on “Use of Animals in DoD Programs” (pdf), DoD Instruction 3216.01, September 13.

In a September 15 report to the House on legislative actions to reduce waste, fraud and abuse, House Intelligence Committee chairman Silvestre Reyes cited House support for increasing the role of the Government Accountability Office in intelligence oversight, a measure opposed by the Obama Administration.

The Pentagon decided to purchase and destroy thousands of copies of Anthony Shaffer’s book Operation Dark Heart at a reported cost of nearly $50,000, while a censored version of the text is released in its place. But since numerous copies of the original version are already in the public domain, this move seems futile and counterproductive.