When President Trump disclosed classified intelligence information to Russian officials last week, did he commit a crime?
Considering that the President is the author of the national security classification system, and that he is empowered to determine who gets access to classified information, it seems obvious that the answer is No. His action might have been reckless, I opined previously, but it was not a crime.
Yet there is more to it than that.
The Congressional Research Service considered the question and concluded as follows in a report issued yesterday:
This tentative, rather strained formulation by CRS legislative attorneys indicates that the question is not entirely settled, and that the answer is not necessarily obvious or categorical.
And the phrase “in keeping with his power and responsibility to advance U.S. national security interests” adds an important qualification. If the president were acting on some other agenda than the U.S. national interest, then the legitimacy of his disclosure could evaporate. If the president were on Putin’s payroll, as the House majority leader lamely joked last year, and had engaged in espionage, he would not be beyond the reach of the law.
Outlandish hypotheticals aside, it still seems fairly clear that the Trump disclosures last week are not a matter for the criminal justice system, though they may reverberate through public opinion and congressional deliberations in a consequential way.
But several legal experts this week insisted that it’s more complicated, and that it remains conceivable that Trump broke the law. See:
President Trump’s disclosure of classified intelligence information to Russian officials, reported by the Washington Post, may have been reckless, damaging and irresponsible. But it was not a crime.
Disclosures of classified information are not categorically prohibited by law. Even intelligence sources and methods are only required to be protected under the National Security Act from “unauthorized disclosure.” This leaves open the possibility that disclosures of such classified information can actually be authorized. And we know that they are, from time to time.
One statute in particular — 18 USC 798 — does come close to matching the circumstances of the Trump disclosure to Russia, with a crucial exception.
That statute makes it a felony to disclose to an unauthorized person any classified information “concerning the communication intelligence activities of the United States or any foreign government; or […] obtained by the processes of communication intelligence from the communications of any foreign government.”
But it further explains that an “unauthorized person” is one who has not been “authorized to receive information… by the President.”
This morning, President Trump tweetedthat “As President I wanted to share with Russia (at an openly scheduled W.H. meeting) which I have the absolute right to do, facts pertaining to terrorism and airline flight safety. Humanitarian reasons, plus I want Russia to greatly step up their fight against ISIS & terrorism.”
(Was the gratuitous parenthetical phrase “at an openly scheduled W.H. meeting” intended to rule out a clandestine transfer of classified information?)
All of that is to say that this episode, though it may have far-reaching ramifications for national security, is probably not a matter for law enforcement. (Based on the reporting by the Washington Post, the President’s actions did violate the terms of an intelligence sharing agreement with a foreign government that supplied the information. But that agreement would not be enforced by the criminal justice system.)
Instead, this is something to be weighed by Congress, which has the responsibility to determine whether Donald J. Trump is fit to remain in office.
The latest set of New START aggregate data released by the US State Department shows that Russia is decreasing its number of deployed strategic warheads while the United States is increasing the number of warheads it deploys on its strategic forces.
The Russian reduction, which was counted as of March 1, 2017, is a welcoming development following its near-continuous increase of deployed strategic warheads compared with 2013. Bus as I previously concluded, the increase was a fluctuation caused by introduction of new launchers, particularly the Borei-class SSBN.
In confronting Russia and rebutting its claims, the United States is hampered by unnecessary or inappropriate classification of national security information, according to former Pentagon official and Russia specialist Evelyn Farkas.
“We are not very good at declassifying and reclassifying information that is not propaganda, showing pictures of what the Russians are doing,” Dr. Farkas told the House Armed Services Committee last year.
“We did it a couple of times, and interestingly, the Open Skies Treaty was actually useful because, unlike satellites, that is unclassified data that is gleaned as a result of aircraft that take pictures for the purposes of our treaty requirements.”
“But in any event, I think that we can do more just by getting some information out. That is the minimum that the State Department could do and should do, together with the intelligence community. But it should also be a push, not a pull–not leaders like yourselves or executive branch members saying, ‘Declassify that,’ but actually the intelligence community looking with the State Department, ‘What should we declassify?’ not waiting for somebody to tell them to do it,” she said.
The same hearing featured testimony from Fiona Hill of the Brookings Institution. She has just been offered a position in the Trump White House as senior director for Europe and Russia, Foreign Policy reported today. See Trump Taps Putin Critic for Senior White House Position, by John Hudson, March 2.
“Putin is a professional secret service operative,” Ms. Hill told the House Armed Services Committee. “He is very unusual among world leaders at present. Putin has also been trained to conceal his true identity and intentions at all times. This is what makes him particularly difficult to deal with.”
Meanwhile, yesterday the National Reconnaissance Office successfully launched a new U.S. spy satellite aboard an Atlas V rocket — that was powered by a Russian RD-180 engine. (“All in a day’s work,” tweeted Bill Arkin.)
Though it might seem incongruous that U.S. intelligence collection would be dependent on Russian space technology, that is how things stand and how they are likely to remain for some time.
“Goodness knows we want off the Russian engine as fast as any human being on the planet,” said Gen. John E. Hyten of US Air Force Space Command. “We want off the Russian engine as fast as possible.”
But there is a but. “But, asking the American taxpayers to write a check for multiple billions of dollars in the future for an unknown is a very difficult thing to do, and for the Air Force, that will be a very difficult budget issue to work,” Gen. Hyten told the House Armed Services Committee last year.
Pentagon official Dyke Weatherington concurred: “The Department continues to be dedicated to ending use of the Russian manufactured RD-180 engine as soon as reasonably possible, but still believes that access to the RD-180 while transitioning to new and improved launch service capabilities is the optimal way forward to meet statutory and Department policy requirements for assured access to space in both the near and long term.”
Even a new US-manufactured rocket engine will not suffice, Mr. Weatherington added. “Any new engine still has to be incorporated into a launch vehicle. The Department does not want to be in a position where significant resources have been expended on an engine and no commercial provider has built the necessary vehicle to use that engine.”
Republicans love nuclear weapons reductions, as long as they’re not proposed by a Democratic president.
That is the lesson from decades of US nuclear weapons and arms control management.
If that trend continues, then we can expect the new Donald Trump administration to reduce the US nuclear weapons arsenal more than the Obama administration did.
What? I know, it sounds strange but the record is very clear: During the post-Cold War era, Republication administrations have – by far – reduced the US nuclear weapons stockpile more than Democratic administrations (see graph below).
Even if we don’t count numbers of weapons (because arsenals have gotten smaller) but only look at by how much the nuclear stockpile was reduced, the history is clear: Republican presidents disarm more than Democrats (see graph below).
It’s somewhat of a mystery. Because Democratic presidents are generally seen to be more likely to propose nuclear weapons reductions. President Obama did so repeatedly. But when Democratic presidents have proposed reductions, the Republican opposition has normally objected forcefully. Yet Republican lawmakers won’t oppose reductions if they are proporsed by a Republican president.
Conversely, Democratic lawmakers will not opposed Republican reductions and nor will they oppose reductions proposed by a Democratic president.
As a result, if the Republicans control both the White House and Congress, as they do now after the 2016 election, the chance of significant reductions of nuclear weapons seems more likely.
Whether Donald Trump will continue the Republication tradition remains to be seen. US-Russian relations are different today than when the Bush administrations did their reductions. But both countries have far more nuclear weapons than they need for national security. And Trump would be strangely out of tune with long-held Republican policy and practice if he does not order a substantial reduction of the US nuclear weapons stockpile.
Perhaps he should use that legacy to try to reach an agreement with Russia to continue to reduce US and Russia nuclear arsenals to the benefit of both countries.
The latest set of so-called New START treaty aggregate data published by the U.S. State Department shows that Russia is continuing to increase the number of nuclear warheads it deploys on its declining inventory of strategic launchers.
Russia now has 259 warheads more deployed than when the treaty entered into force in 2011.
Rather than a nuclear build-up, however, the increase is a temporary fluctuation cause by introduction of new types of launchers that will be followed by retirement of older launchers before 2018. Russia’s compliance with the treaty is not in doubt.
In all other categories, the data shows that Russia and the United States continue to reduce the overall size of their strategic nuclear forces. Continue reading →
CBS’s 60 Minutes program Risk of Nuclear Attack Rises described that Russia may be lowering the threshold for when it would use nuclear weapons, and showed how U.S. nuclear bombers have started flying missions they haven’t flown since the Cold War: Over the North Pole and deep into Northern Europe to send a warning to Russian President Vladimir Putin.
The program follows last week’s program The New Cold War where viewers were shown unprecedented footage from STRATCOM’s command center at Omaha Air Base in Nebraska.
Producer Mary Welch and correspondent David Martin have produced a fascinating and vital piece of investigative journalism showing disturbing new developments in the nuclear relationship between Russia and the United States.
They were generous enough to consult me and include me in the program to discuss the increasing Cold War and dangerous military posturing.
Nuclear Bomber Operations Context
Just a few years ago, U.S. nuclear bombers didn’t spend much time in Europe. They were focused on operations in the Middle East, Western Pacific, and Indian Ocean. Despite several years of souring relations and mounting evidence that the “reset” with Russia had failed or certainly not taken off, NATO couldn’t make itself say in public that Russia gradually was becoming an adversary once again.
Whatever hesitation was left changed in March 2014 when Vladimir Putin sent his troops to invade Ukraine and annexed Crimea. The act followed years of Russian efforts to coerce the Baltic States, growing and increasingly aggressive military operations around European countries, and explicit nuclear threats against NATO countries getting involved in the U.S. ballistic missile defense system.
Granted, NATO may not have been a benign neighbor, with massive expansion eastward of new members all the way up to the Russian border, and a consistent tendency to ignore or dismiss Russian concerns about its security interests.
But whatever else Putin might have thought he would gain from his acts, they have awoken NATO from its detour in Afghanistan and refocused the Alliance on its traditional mission: defense of NATO territory against Russian aggression. As a result, Putin will now get more NATO troops along his western and southern borders, larger and more focused military exercises more frequently in the Baltic Sea and Black Sea, increasing or refocused defense spending in NATO, and a revitalization of a near-slumbering nuclear mission in Europe.
Six years ago the United States was this close to pulling its remaining non-strategic nuclear weapons out of Europe. Only an engrained NATO nuclear bureaucracy aided by the Obama administration’s lack of leadership prevented the withdrawal of the weapons. Russia has complained about them for years but now it seems very unlikely that the modernization of the F-35A with the B61-12 guided bomb can be stopped. The weapons might even get a more explicit role against Russia, although this is still a controversial issue for some NATO members.
But the U.S. military would much prefer to base the nuclear portion of its extended deterrence mission in Europe on strategic bombers rather than the short-range fighter-bombers forward deployed there. The non-strategic nuclear weapons are far too controversial and vulnerable to the myriads of political views in the host countries. Strategic bombers are free of such constraints.
A New STRATCOM-EUCOM Link
Therefore, even before NATO at the Warsaw Summit this summer decided to reinvigorate its commitment to nuclear deterrence, former U.S. European Command (EUCOM) commander General Philip Breedlove told Congress in February 2015, EUCOM had already “forged a link between STRATCOM Bomber Assurance and Deterrence [BAAD] missions to NATO regional exercises” as part of Operation Atlantic Resolve to deter Russia.
Less than two months later, on April 1, 2015, four nuclear-capable B-52H bombers took of from their bases in the United States and flew across the North Pole and North Sea in a simulated strike exercise against Russia. The bombers proceeded all the way to their potential launch points for air-launched cruise missiles before they returned to the United States. Such an exercise had not been conducted since the late-1980s against the Soviet Union. Combined, the four bombers could have delivered 80 long-range nuclear cruise missiles with a combined explosive power of 800 Hiroshima bombs.
Despite its strategic implications, Polar Growl also had a distinctive regional – even limited – objective because of the crisis in Europe. Planning for such regional deterrence scenarios have taken on a new importance during the past couple of decades and they have become central to current planning because it is in such regional scenarios that the United States believes it is most likely that nuclear weapons could actually be used.
“The regional deterrence challenge may be the ‘least unlikely’ of the nuclear scenarios for which the United States must prepare,” Elaine Bunn, the Deputy Assistant Secretary of Defense for Nuclear and Missile Defense Policy, in 2014 predicted only a few weeks before Russia invaded Ukraine, “and continuing to enhance our planning and options for addressing it is at the heart of aligning U.S. nuclear employment policy and plans with today’s strategic environment.”
Two weeks after the bombers returned from Polar Growl, Robert Scher, the U.S. Assistant Secretary of Defense for Strategy, Plans, and Capabilities, told Congress: “We are increasing DOD’s focus on planning and posture to deter nuclear use in escalating regional conflicts.” This includes “enhanced planning to ensure options for the President in addressing the regional deterrence challenge.” (Emphasis added.)
Nuclear Conventional Integration
Much of this increased planning involves conventional weapons such as the new long-range conventional JASSM-ER cruise missile, but the planning also involves nuclear. In fact, conventional and nuclear appear to be integrating in a way they have done before. This effort was described recently by Brian McKeon, the Principal Deputy Under Secretary of Defense for Policy and Acting Under Secretary of Defense for Policy, during the annual STRATCOM Deterrence Symposium:
In the Department of Defense we’re working to effectively integrate conventional and nuclear planning and operations. Integration is not new but we’re renewing our focus on it because of recent developments and how we see potential adversaries preparing for conflict. This is an area where the focus in Omaha has really led the way and I want to commend Admiral Haney and STRATCOM for being able to shift planning so quickly toward this approach and thinking though conflict. No one wants to think about using nuclear weapons and we all know the principle role of nuclear weapons is to deter their use by others. But as we’ve seen, out adversaries may not hold the same view.
Let me be clear that when I say integration I do not mean to say we have lowered the threshold for nuclear use or would turn to nuclear weapons sooner in a conventional campaign. As we stated in the Nuclear Posture Review, the United States will “only consider the use of nuclear weapons in extreme circumstances to defend the vital interests of the United States or its allies and partners.” The NPR also emphasized the importance of reducing the role of nuclear weapons in our national security strategy, a requirement that has been advanced in our planning consistent with the 2013 Nuclear Employment Guidance, including with non-nuclear strike options.
What I mean by integration is synchronizing our thinking across all domains in a way that maximizes the credibility and flexibility of our deterrent through all phases of conflict and responds appropriately to asymmetrical escalation. For too long, crossing the nuclear threshold was through to move a nuclear conflict out of the conventional dimension and wholly into the nuclear realm. Potential adversaries are exploring ways to cross this threshold with low-yield nuclear weapons to test out resolve, capabilities, and Allied cohesion. We must demonstrate that such a strategy cannot succeed so that it is never attempted. To that end we’re planning and exercising our non-nuclear operations conscious of how they might influence an adversary’s decision to go nuclear.
We also plan for the possibility of ongoing U.S. and Allied operations in a nuclear environment and working to strengthen resiliency of conventional operations to nuclear attack. By making sure our forces are capable of continuing the fight following a limited nuclear use we preserve flexibility for the president. And by explicitly preparing for the implication of an adversary’s limited nuclear use and providing credible options for the President, we strengthen our deterrent and reduce the risk of employment in the first instance.
Regional nuclear scenarios no longer primarily involve planning against what the Bush administration called “rogue states” such as North Korea and Iran, but increasingly focus on near-peer adversaries (China) and peer adversaries (Russia). “We are working as part of the NATO alliance very carefully both on the conventional side as well as meeting as part of the NPG [Nuclear Planning Group] looking at what NATO should be doing in response to the Russian violation of the INF Treaty,” Scher explained.
Two months ago, a little over a year after Polar Growl, another bomber strike exercise was launched. This time six bombers (4 B-52s and 2 B-2s) flew closer to Russia and simultaneously over the Arctic Sea, North Sea, Baltic Sea, and North Pacific Ocean. The six Polar Roar sorties required refueling support from 24 KC-135 tankers as well as E4-B Advanced Airborne Command Post and E-6B TACAMO nuclear command and control aircraft.
Whether the expansion of SVR headquarters corresponds to changes in the Service’s mission, organizational structure or budget could not immediately be learned.
Russian journalist and author Andrei Soldatov, who runs the Agentura.ru website on Russian security services, noted that the expansion “coincides with the appointment of the current SVR director, Mikhail Fradkov, in 2007.” He recalled that when President Putin introduced Fradkov to Service personnel, he said that the SVR should endeavor to help Russian corporations abroad, perhaps indicating a new mission emphasis.
In our latest FAS Nuclear Notebook published in the Bulletin of the Atomic Scientists, Norris and I take the pulse on Russia’s nuclear arsenal, reviewing its strategic modernization programs and the status of its non-strategic nuclear forces.
Despite what you might read in the news media and on various web sites, the Russian modernization is not a “buildup” but a transition from Soviet-era nuclear weapons to newer and more reliable types on a less-than-one-for-one basis.
As a result, the Russian nuclear arsenal will likely continue to decline over the next decade – with or without a new arms control agreement. But the trend is that the rate of decline is slowing and Russian strategic nuclear forces may be leveling out around 500 launchers with some 2,400 warheads.
Because Russia has several hundred strategic launchers fewer than the United States, the Russian modernization program emphasizes deployment of multiple warheads on ballistic missiles to compensate for the disparity and maintain rough parity in overall warhead numbers. Before 2010, no Russian mobile launcher carried multiple warheads; by 2022, nearly all will.
Russia to some extent also uses its non-strategic nuclear weapons to keep up. But non-strategic nuclear forces have unique roles that appear to be intended to compensate for Russia’s inferior conventional forces, which – despite important modernization such as long-range conventional missiles – are predominantly made up of Soviet-era equipment or upgraded Soviet-era equipment.
Russia’s non-strategic nuclear forces are currently the subject of much interest in NATO because of concern that Russian military strategy has been lowering the threshold for when nuclear weapons could potentially be used. Russia has also been increasing operations and exercises with nuclear-capable forces, a trend that can also be seen in NATO and U.S. military posturing.
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 →